Kaos Gay and Lesbian Cultural Research and Solidarity Association and Pink Life LGBTT Solidarity Association is filing a criminal complaint with the Information Technology Bureau of the Chief Public Prosecutor’s Office regarding the group Young Islamic Defense’s statement issued on their website and the posters posted throughout Ankara streets which quote a hadith by the prophet Muhammad calling for the massacre of LGBT individuals. Attorneys Hayriye Kaya, Yasemin Öz, and Oya Aydın are accusing Global Analysis (Küresel Analiz), the content provider for the website, for violating constitutional rights and relevant legislation in the Turkish Penal Code regarding inciting hatred and provocation to crime. Below are key points underlined in the complaint:

EVENTS:

• The LGBTIs have been characterized as “THE PEOPLE LIVING THE SUMMIT OF IMMORALITY” and were made the target of homophobic and transphobic hate and violence in the article entitled “Remains of the Tribe of Lot” published in the website www.gencislamimudafaa.com on 6 July 2015.

In the relevant article it was stated that:

“The march of the organization entitled ‘LGBT’, that we are ashamed even to write the long form thereof, has once again proven us that the remains of the Tribe of Lot are still present in this day and age. These people living the summit of immorality also made sure to ridicule the names of the holy Three Months, namely ‘Rajab, Sha’bān and Ramadan’. We could not have remained indifferent, in the God’s righteous path, to this deprived march in the void cause. We showed effort both to raise awareness of our society and to do a small portion of our part. By putting up our posters on this matter to some areas, we shared the hadith ‘If you see the one carrying out the Tribe of Lot’s dirty work, kill the doer and the done!’ mentioned in Tirmidhi and Abu Dawood, with our society in order to show that the Muslims must not stay silent about this and that Islam strictly forbids this matter. Our wish is that we learn the conduct Islam requests from us, in the light of the Quran and Sunnah, instead of learning it from the preachers who cannot scream the truth on televisions.”

Below the statement, there were photographs of the posters (Annex-1) stating “If you see the one carrying out the Tribe of Lot’s dirty work, kill the the doer and the done” that were put up in various areas.

STATEMENTS:

There is an explicit call for the murder of LGBT individuals justified by religious references in the statement on the website  and the posters (as shown in the photographs below the statement).

• Article 214 of the Turkish Penal Code entitled “Provoking Commission of Offense” states:

(1) The person who provokes a crime shall be punished by imprisonment for six months to five years.

(2) The person who provokes a section of society to arm itself and kill another section of society shall be punished by imprisonment for 15 to 24 years.

(3) In the event of said crimes being committed, the person who provokes the crime shall be punished as the person who enables the crime.

As explained above and as can be seen in the internet print outs attached to our petition, through this statement and posters, a call is issued to Muslims not to be spectators to “immorality” but to kill LGBT people.

• The right to life is a basic human right. The right to life and the material and spiritual integrity of a person is guaranteed in international covenants and the Constitution. Article 2 of the European Convention on Human Rights also emphasizes the right to life as one of the most fundamental provisions.

Both the statement on the website and the posters make LGBT individuals the target of violence and assault.

• Racism, xenophobia, sexism, homophobia, transphobia, etc. underlie hate speech. Intolerance of difference incites language of hatred and increases its impact. Hate speech does not constitute a crime but it paves the way to hate crimes and encourages the same. Hate speech is the expression of intolerance and impatience and it threatens social peace. Another consequence of hate speech is that it serves to pacify the groups that are its target and further marginalizes and silences them. Hate speech serves to legitimize the violence committed against disadvantaged groups.

• Even though there is no definition of hate speech in international law, an advisory decision adopted in 1997 by the Committee of Ministers of the Council of Europe describes hate speech as: “All forms of expression that disseminates, encourages, advocates or justifies forms of hatred based on racial hatred, xenophobia, anti-Semitism and intolerance. Hatred based on intolerance, aggressive nationalism and ethnocentrism entails discrimination and intolerance expressed in the form of animosity towards minorities, (im)migrants and people with migrant heritage.”

• Article 216 of the Turkish Penal Code entitled “Provoking the Society to Rancor and Hostility, and Contempt” states:

(1) Any person who openly provokes a group of the society having different characteristics with regard to social class, race, religion, sect or region, to be rancorous or hostile against another group, is punished with imprisonment from one year to three years in case such act causes an apparent and imminent danger with respect to public safety.

(2) Any person who openly humiliates a group of the society based on their difference as to social class, race, religion, sect, sex or region, is punished with imprisonment from six months to one year.

(3) Any person who openly insults the religious values adopted by a group of the society is punished with imprisonment from six months to one year, if such act causes potential risk to public peace.

• As explained above, stating that attacking LGBT persons’ right to life and legitimizing their murder, especially by saying it is “mandatory” through Islamic references, is provoking a segment of the society to violence against LGBTs through religious references and constitutes a threat to the most fundamental right, the right to life.
• Discrimination based on sexual orientation and gender identity are becoming institutionalized in Turkey and Turkey is not fulfilling its responsibilities in preventing discrimination and violence based on sexual orientation and gender identity. Every year tens of people become victims of institutional and civil homophobic and transphobic violence. Turkey still does not have a hate crimes legislation in line with the Organization of Security and Co-operation in Europe (OSCE) and has not established a database to determine hate crimes based on sexual orientation and gender identity. LGBT’s Human Rights Report is published every year by the plaintiff Association. The reports include violations of rights covered by the media. According to these reports, 44 people have been murdered due to their sexual orientation and gender identity since 2010. These are, note that, only the hate crimes that could have been reported by the media and ascertained by the relevant associations. This number shows the graveness of the threat against LGBTs’ right to life.

The claim concerning the insult made through hate speech can be asserted to be based on sexual orientation, which is as serious as hate speech based on race, ethnicity, or color.

• The Constitutional Court’s fundamental decision on hate speech cites European Court of Human Rights (ECtHR) rulings and underlines the necessity to punish and prevent all types of expressions that disseminate hate, provoke and extoll hate, or justify hate. The mentioned decision states “The foundations of a democratic, pluralistic society are tolerance and respecting the honor of all persons in the same level; it may be necessary to punish and prevent all types of expressions that disseminate hate on the basis of intolerance, provoke and extoll hate, or justify hate on the condition of proportionality and “formalities”, “terms”, “restrictions”, or “sanctions”. Insult through hate speech can occur based on sexual orientation, which is as serious as hate speech based on race, ethnicity, or color. As stated in ECtHR rulings, sexual orientation constitutes an aspect of the individual’s private life.” (Constitutional Court B. No 2013/5356 § 32) (See relevant translation of article on the decision here)

Freedom of expression and dissemination are not absolute and limitless

• The same Constitutional Court decision states that freedom of expression and freedom of press are not absolute and expressions that violate the individual’s rights and freedoms cannot be considered within the freedom of expression and press. The decision states, “The freedom of press which completes the freedom of expression and dissemination and allows the use of these rights is not absolute, as the freedom of expression and dissemination is also not absolute. It is necessary for press to be free to fulfill its social function mentioned above but it is also necessary for it to act responsibly. In this way, press, which influences the thoughts of wide social groups and can mobilize them, must follow press ethical rules and avoid attitudes that would violate the individual’s rights and freedoms.” (Constitutional Court, Sinem Hun, Application No. 2013/5356 § 54)

Expressions that advocate violence towards a certain group cannot be considered within the scope of freedom of expression

• The rulings of ECtHR has put forth certain criteria to determine hate speech and differentiate it from Article 10 of the European Convention on Human Rights on freedom of expression. In this scope, no discourse that disseminate hate on the basis of intolerance, provoke and extoll hate, or justify hate can be considered within Article 10.
• ECtHR has decided that a plaintiff who aimed to “incitement to racial hatred towards Jews” and advocated violence towards a certain ethnic group through articles that point to Jews as the source of evil in Russia cannot demand protection of Article 10. ECtHR declared that the application cannot be accepted. (Pavel Ivanov v. Russia, Application No. 35222/04)
• In the same way the ECtHR has ruled that leaflets arguing homosexuality is a “deviant sexual proclivity” and “morally destructive effect on the substance of society” and that holds homosexuality responsible for the spread of HIV and AIDS constituted a serious and prejudicial allegations even though the leaflets did not directly call for violence, ruling that it cannot be considered within the scope of Article 10. (Vejdeland and others v. Sweden, Application No. 1813/07)
• The plaintiff Association which works in the field of LGBTs’ human rights is exposed to defamation, insult, and hate speech via print and visual media. The “kill” call in the aforementioned text and posters directly target the plaintiff association, its employees, members, and volunteers. In a country like Turkey where LGBTs’ right to life is often violated, the continuation of this discourse will result in hate attacks and hate crimes.

LEGAL BASIS: Constitution, Turkish Penal Code, Law No. 5651 and applicable legislation

EVIDENCE: Recordings of the city surveillance and security cameras, witnesses, experts and all legal evidences

CONCLUSION and REQUEST: Based on the reasons explained above and to be considered ex officio, it is requested by proxy that the persons who put up the relevant posters be determined by reviewing the city surveillance and security cameras’ recordings, and be sentenced for the crimes of Provoking Commission of Offense (Turkish Penal Code Art. 214) and Provoking the Society to Rancor and Hostility, and Contempt (Turkish Penal Code Art. 216); and furthermore, as a provisional measure of protection, the content published on 6 July 2015 in the website www.gencislamimudafaa.com entitled “Remains of the Tribe of Lot” be removed.

On behalf of

Kaos GL Association and Pink Life Association

Atty. Hayriye KARA

ANNEX:

1) Print-out of the content published on 6 July 2015 in the website www.gencislamimudafaa.com entitled “Remains of the Tribe of Lot”

2) Power of Attorney