The Constitutional Court’s verdict found the Martial Penal Code’s ruling of expulsion from the Armed Forces for soldiers having homosexual relations to be in compliance with the Constitution. Constitutional Court Deputy Chair Yıldırım in his disagreement to the ruling attached a comment suggesting that this does not concern anyone: “Are these people less valuable or less dignified than others due to their sexual orientations?”

Source: “Constitutional Court Deputy Chair’s final remarks on the verdict of a gay soldier: ‘It is neither the state’s business nor anyone else’s.’ “ (“AYM Başkanvekili’nden eşcinsel asker kararına şerh: Ne devleti ne de başkalarını ilgilendirir”) , Sputnik, February 20, 2018, http://tr.sputniknews.com/amp/turkiye/201802201032328510-aym-escinsel-asker-serh-/

The detailed ruling of the Constitutional Court (AYM) on the issue was published in the Official Court Gazette. According to the ruling, a public action was filed against a soldier due to his homosexual orientation, with the allegation of ‘engaging in unnatural intimacy’. The Chamber of the 1. Military Supreme Court ruled in favour of the Martial Penal Code’s rule which states: “Soldiers engaging in unnatural intimacy with someone are subject to the sentence of expulsion from Turkish Armed Forces and soldiers are to be stripped of their rank” is against the Constitution and applied to Constitutional Court for the cancellation of the law.

‘ EXPULSION FROM TURKISH ARMED FORCES DOES NOT ACCORD WITH THE SENSE OF JUSTICE’
Deputy Chair Yıldırım’s objection to the verdict, stated that it does not accord with a sense of justice to sentence soldiers who engage in ‘unnatural sexual behaviour’ with expulsion from Turkish Armed Forces, without concrete justifications of these behaviours leading to disruption of the discipline or dishonoring the dignity of the armed forces.

‘DISPROPORTIONATE INTERVENTION IN THE DEMAND FOR RESPECT FOR PRIVACY’

Yıldırım further stressed that the expulsion of someone from their profession based on their sexual activities constitutes a disproportionate intervention in their right to demand respect of privacy. The text also states that it was against the principle of equality to sentence soldiers to expulsion for engaging in actions considered ‘unnatural intimacy’. It was pointed out that people employed in security directorates, the justice system or religious services are not subject to such heavy sentences.

The constitutional Court has carried out the principal examination of the application, rejecting the demand for cancellation of the regulation in question.

‘THE CONSTITUTION CAN LIMIT THE PRIVATE LIFE ON CERTAIN CIRCUMSTANCES’

The justification of the constitutional court ruling stated that although everyone has right to demand respect for personal and family life according to the Constitution, however there can be limitations to the protection of private life in certain circumstances and that this right is not considered to be absolute.

The text also suggested that fundamental rights and liberties can only be limited by law and based on the circumstances envisioned only by the constitution without infringing on their essences, and that these limitations can not be in discordance with the principle of proportionality and prerequisites for a democratic social order.

‘ IT IS NOT ACCEPTABLE IN ALL SOCIETIES’

The ruling explained that the regulation in question prohibited ‘engagement in unnatural intimacies’. The clause ‘engaging in unnatural intimacies’ being defined as ‘demonstrating unnatural sexual behaviour’ and suggested: “Such sexual behaviours can emerge in a myriad of ways and can be different from person to person or from society to society. As indicated on the Constitutional Court’s verdict dated April 1, 2015, said behaviours are sexual behaviours which have negative impacts on the moral standards of the society and can not be considered natural in all social orders”.

‘TO PROTECT THE DIGNITY AND HONOUR OF THE PROFESSION’
Yet it was also suggested that the principal objective of the penal sanction stipulated on the Martial Penal Code is to protect and to maintain the military discipline, that the sanctions on the soldiers aims to sustain the public order and productive and active work, to establish discipline and to protect the dignity and honour of the profession.

ANNOTATION BY DEPUTY CHAIR: REFERENCE TO ECHR

Constitutional Court Deputy Chair Engin Yıldırım, did not agree with the majority’s view. The Deputy Chair referred to the European Court of Human Rights (ECHR) verdicts and recommendations as well as international conventions regarding the struggle against gender based discrimination in his opposing vote note.

‘VERDICT CONTRADICTS WITH CONTEMPORARY DEVELOPMENTS’

Yıldırım emphasized that up until recently societies considered sexual relations among same sex individuals to be unnatural sexual behaviours, defined these acts as ‘disease’ or ‘perversion’, subjecting them to penal sanctions and wrote “As the understanding of human rights and social approaches improved, this [view] started to change. The evaluation of homosexual relationships as ‘unnatural intimacies’ contradicts with the contemporary developments in human rights”.

CONCRETE EXAMPLES SHOULD BE GIVEN

Yıldırım stressed that the ECHR came to the conclusion that expulsion from the army solely based on homosexuality or homosexual relations is against the European Convention of Human Rights. Yıldırım also stated that if it is alleged that the employment of homosexuals in armed forces is a risk to military discipline and operational activity then the premises for such suggestion should be put forward with concrete examples.

‘STEREOTYPES and PREJUDICES…’

Yıldırım based his rejection on the below reflections:
“The subjection of the soldier to expulsion from the Turkish Armed Forces due to the regulation in question, is not based on professional inadequacy or a related cause but is based on the person’s behaviours or preferences related to the person’s private life. This, excluding extremely exceptional circumstances, is neither the state’s nor anyone else’s concern. In a democratic system the majority should not ignore the fundamental rights and liberties of LGBTI individuals who are deemed a sexual minority. The regulation in question ignores the dignity of the soldiers with different sexual orientation, in the name of protecting the dignity of the military profession. The regulation in question reflects the stereotypes and deep prejudices regarding the LGBTI individuals which have been calcified in social life systematically throughout the history, resulting in the reproduction of said prejudices. People are valuable solely because they are humans and human dignity is a birthright, it makes the people worthy of respect, of value and of irrevocable rights based on their humanity. Are these people less valuable, less dignified because of their sexual orientations? “