People living with HIV have the same rights as other people have but different practices exist under a few titles due to special reasons. This section focuses on basic rights and different utilizations.
Due to very low social awareness of HIV infection, people living with HIV might be subjected to various violation of rights and social isolation (loneliness) when their health conditions are discovered by others. Therefore, importance is placed on patient’s privacy from the first days of infection occurrence.
As per Article 59 of Turkish Justice Academy’s decision on application numbered 2014/19081 in Constitutional Court, “As stated in Constitutional Court decisions, personal data notion -on the condition of being identified or can be identified- represents all information of a person. It’s been stated that not just name, surname, date of birth and place of birth, but also all data that make the person directly or indirectly identifiable such as phone numbers, motor vehicle license, social security number, passport number, personal background, photo, visual and voice records, finger prints, health data, genetic data, IP address, e-mail address, shopping habits, hobbies, preferences, people they interact with, group memberships, family data are within personal data. Therefore, health data is regarded as personal data secured by Article 20 of the Constitution.
While health data of a person living with HIV is considered personal data and secured by the protection law, sharing it without person’s consent means disobeying the law and violation of Article 20 of the Constitution.
Blood and Organ Donation
In 1987, scan of blood and blood products has become a legal obligation in order to prevent HIV infection transmission via blood transfusion. Since then, all blood donations have been scanned with advanced inspection. And if the donor is infected with HIV, the blood is destroyed and the donor is registered in the system. If HIV is detected in one’s blood, that person is not allowed to be a blood donor. Same method applies for organ and bone marrow transplants, too, and those who are infected with HIV are not allowed to be donors.
Military Service and Policing
People living with HIV who have military service obligation are unfit for military service. Non -Turkish foreign nationals are exempt from military service.
While there’s no obstacle for people living with HIV to get married due to their disease, they are obligated to inform their doctors during the marriage procedures. Further information on marriage is available in Living with HIV section, under title “Home/Marriage, Business and All Social Relations”.
Despite being a sexually transmitted infection, HIV is not an infection that prevents one from having sex. Along with the right to get married, people living with HIV have the right to reproduce and have children as well. But there are certain medical issues to consider. Further information on having children is available in Living with HIV section, under title “Having Children”.
Living with HIV is not an obstacle to get formal education. HIV transmission during education activities at school is not possible since HIV doesn’t transmit through social relations.
When HIV/AIDS started to become an epidemic, ethical and legal arguments emerged accordingly, international agencies and countries started legislation studies (PLA, 2008a). In 1996, International HIV/AIDS and Human Rights Advisory Committee convened and produced the “International Guidelines on HIV/AIDS and Human Rights. And ILO listed the measures to be taken in its document dated 2001, “Code of Practice on HIV/AIDS and The World Of Work”, in order to prevent discrimination at work against people living with HIV. According to this, HIV/AIDS needs to be recognized as a workplace ‘issue’:
HIV/AIDS is a workplace issue, and should be treated like any other serious illness/ condition in the workplace. This is necessary not only because it affects the workforce, but also because the workplace, being part of the local community, has a role to play in the wider struggle to limit the spread and effects of the epidemic (Article 4.1).
And as for discrimination, ILO has issued the following decree as part of its ‘dignified work’ principle:
In the spirit of decent work and respect for the human rights and dignity of persons infected or affected by HIV/AIDS, there should be no discrimination against workers on the basis of real or perceived HIV status (article 4.2).
Some of ILO’s advisory opinions are:
-HIV/AIDS testing should not be required of job applicants or persons in employment, -Employees have no obligation to disclose such personal data to their employers or
-HIV infection is not a cause for termination of employment.
-Governments should recognize the importance of including the world of work in national HIV/AIDS programs.
-Both governments, employers and employment agencies should take all measures to ensure that people living with HIV benefit from statutory social security programs and occupational schemes (ILO, 2001).
Today, many countries have national legislations specially developed for people living with HIV to prevent discrimination at workplace. For instance, as per Pakistan’s HIV/AIDS law, every workplace, public or private, having more than 50 employees, shall adopt and enforce an HIV/AIDS policy. On the other hand, HIV status is included in disability and disability retirement laws in some countries. In UK for instance, as of 1995, the legislation to protect disabled people against discrimination included all people with diagnosed HIV, too. (Villager, 2011)
Legal experts studying the employment laws in Turkey (PLA, 2008a) concluded that there’s no law on discrimination against people living with HIV. As per Ministry of Health’s official statements (2008), people living with HIV in Turkey ‘have equal rights as everyone else does’. Turkey also signed the UNGASS HIV/AIDS Declaration (2001), and hereby vowed to strive ‘to improve human rights to fight against AIDS, prevent stigma and discrimination against people living with HIV’.
On the other side, Article 49 of Constitution of the Republic of Turkey defines employment right and duty. Accordingly, state is obliged to increase its employees’ life standards and protect them to improve the world of work. In this regard, discrimination against anyone at work is prohibited, including people living with HIV. However, it’s a fact that particularly the decrees in Article 24 and 25 of Labor Law numbered 4857 are used to justify discrimination (PLA, 2008a). These articles explain the conditions that employment contract can be terminated due to health issues by the employee or the employer, before the contract ends or without waiting for the notification process. Accordingly, ‘if the employee gets a contagious disease or a disease irrelevant to their job’ and ‘if the Health Committee confirms that their disease is not curable and the employee poses a risk for working at a workplace’, immediate termination of employment contract is viable. In a relevant case, when a person living with HIV was terminated from employment with a similar reason, The Court of Cassation has clarified the issue and acknowledged the discriminative act:
The claimant, who’s working in the production department of the company producing baked goods, has been terminated from employment by his employer as per Article 24 and 25 of Labor Law numbered 4857, following Health Committee’s report stating that he is unfit for “heavy” work but can be assigned normal tasks. But even in this case, termination should be the last resort. Employer should inquire if there’s another suitable job for the claimant worker.
Although Constitution of the Republic of Turkey obliges the state to take measures in protection and empowerment of disabled people, recognition of HIV condition as disability is a controversial issue. Since living with HIV can cause ‘disabilities’ in daily life even in case of no morbidity, possible recognition of HIV condition as disability is being evaluated (PLA, 2008a).
Pınar Öktem: VIOLATION OF EMPLOYMENT RIGHTS OF PEOPLE LIVING WITH HIV/AIDS IN TURKEY: LEGAL FRAMEWORK AND RELEVANT EXAMPLES
Access to Health Services
Everyone has the right to have access to health services. No one can be banned from access to health services based on a person’s race, language, religion, gender, sexual orientation, ethnicity, socioeconomic status, sociocultural status and so on.
A non-standard practice towards people living HIV while they benefit from other departments except their infection is out of the question. No one can be deprived of required health services due to their HIV infection.
Executing the standard infection control and sterilization procedures during any medical intervention on people living with HIV would suffice. All procedures besides standard practices are considered violation of patient rights.
If you are a Syrian refugee under temporary protection, or a refugee under international protection, you can schedule an appointment for infectious diseases department at the closest training and research hospital, along with your foreigner ID number, by following the relevant steps on https://www.hastanerandevu.gov.tr/Randevu/login.xhtml, or by calling Alo 182. Since the appointment services are in Turkish, you can call our hotline for assistance.
If you’re from Syria and haven’t completed your temporary protection registration yet,
please go to your local immigration office and complete your registration.
If you have the pre-registration document starting with the number 98, you can go to your local immigration office with your HIV test result, and given your health condition, you can apply for priority in registration process.
You should remember that you can only get health service at a hospital located in the city you’re registered in.
If you don’t have a legal status in Turkey, you can call our support line to get information on relevant services.
For all your inquires and help requests, you can call our hotline at +90 505 019 7148 and get service in both Arabic and English.
Right To Legal Remedies
Everyone is equal before law, and has equal rights by means of seeking their rights and advocation for their own freedom and right to legal remedies during legal processes. However, most people living with HIV are reluctant about applying for judicial remedy upon violation of their rights since hearings are held in the presence of third parties, and also because person’s ID and definition are fully disclosed in all public documents. Due to fear of being subjected to social prejudice by being disclosed while seeking their rights, people have opted for accepting the violation of rights.
However, as per Supreme Court’s verdict dated February 2017, on T.A.A’s application numbered 2014/19081, regarding the labour court’s verdict in 2010, which declined T.A.A’s request to have the hearings without the presence of third parties due to social effects and possible harms of the infection at issue;
It’s been ruled that right to respect to privacy was violated as per Article 20 of Constitution due to labor court’s decline of claimant’s request to have the hearings without the presence of third parties, and non-pecuniary damages granted to the claimant.
This verdict will serve as a model in all courts where personal and health data of people living with HIV are present, and demonstrate that requesting a trial without the presence of third parties is a constitutional right.