Constitutional Court of Turkey

A Lesson on ‘Discrimination’ for the Constitutional Court

The Turkish Constitutional Court faces internal dissent on its verdict that banning a gay religion teacher from teaching was not discriminatory.

Source: Nurcan Gökdemir, “AYM’ye ‘ayrımcılık’ dersi”, Birgün, 8 March 2018, https://www.birgun.net/haber-detay/aym-ye-ayrimcilik-dersi-207237.html

The Constitutional Court has recently rejected the appeal of a soldier, who was expunged from the Turkish Armed Forces. The reason given by the court for the decision was that “homosexuality is detrimental to the honor of military service”. Now, the Court has ruled that there was no discrimination against a Religious Culture and Moral Values teacher, who was fired for the same reasons.

The court ruling states “It is natural for persons, who want to work educating young children, to be subjected to certain restrictions to which other people are not subjected.” Deputy Chair Engin Yıldırım and member Muharrem Topal did not support the ruling. In his statement for voting against [the ruling] Yıldırım stated that discrimination based on sexual orientation is prohibited in international agreements and stipulations, which Turkey has agreed to uphold. The statement of dissenting vote, which emphasizes the fact that the Constitutional Court’s ruling is unconstitutional, included these points as the rationale:

“The Constitution states that the State does not have an official sexual orientation and the State must be equal and impartial to all genders, sexual identities, gender identities, and sexual orientations.”

“Discrimination against sexual orientation is an acceptance of the idea that some lives are less deserving of respect and dignity, and therefore lead to hindering LGBTI+ [people’s] participation in social life with equal opportunity and dignity.”

“One of the foundational duties of the state is to protect human dignity and refrain from policies, practices, and judicial regulations that will damage the dignity of people who constitute a particular community”

“The Constitutional Court affirms [lesbian] sexual relation visuals as ‘perversion’”

[Turkey’s] Constitutional Court decided against the repeal of the law concerning “unnatural sexual behavior.” Homosexuality is still seen as a perversion.

Source: Diken, “Anayasa Mahkemesi, eşcinsel ilişki görüntülerini ‘sapkınlık’ olarak onadı” (“The Constitutional Court affirms [lesbian] sexual relation visuals as ‘perversion’”), 18 April 2015, http://www.diken.com.tr/anayasa-mahkemesi-escinsel-iliski-goruntulerini-sapkinlik-olarak-onadi/

In Aydın, a defendant, who was charged with and filed an objection against the Article 226 [1] of the Turkish Penal Code, which equates visuals of homosexual sexual relations with visuals of rape, sadomasochism, sexual relations with animals, and sexual relations with corpses. The Criminal Court judge, who agreed with the objection against the use of the term “unnatural way” in the article, forwarded the case to the Constitutional Court for the article’s cancellation.

According to the news report by Sözcü, the Constitutional Court denied the request with a majority vote. The Court opinion stated that the punishments prescribed by the article in question refers not to personal circumstances but to the distribution of pornographic images that display different “sexual preferences”[2].

Two associate justices, Serruh Kaleli and Serdar Özgüldür, wrote their dissent to the opinion, stating that “Such relations are within the framework of personal freedoms. ECtHR [European Court of Human Rights] decisions too follow this perspective.”

Kalel and Özgüldür emphasized that, excluding incest, circumstances, which both do not involve violence and are consensual, are protected by the notion of personal privacy and constitute an issue of freedom. The justices commented that “In this respect, the [penal code] article that is subject to the request for dismissal is clearly in violation of the principle of the constitutional state.”

Article 226 of The Turkish Penal Code[1] states:

The person who produces, imports, distributes, sells, transports, stores, shows, or possesses products that include textual, audio, or visual products that incorporate violent sexual behaviors or sexual behaviors that involve animals, corpses, or unnatural ways, are punished with one to four years of prison and up to five thousand days (approximately 100,000TL [$37,400]) of judicial fine.”

[1] The full text of the article in question, which outlines punishments for the possession and distribution of “obscene” products, is provided below. The Turkish Penal Code does not provide a definition of “obscenity.” -Trans.

“Türk Ceza Kanunu [Kabul Tarihi: 26.9.2004]” (“The Turkish Penal Code [as of 26 September 2004]”), Grand National Assembly of Turkey, http://www.tbmm.gov.tr/kanunlar/k5237.html

Obscenity

ARTICLE 226. – (1) The person

a) who gives, or shows, reads, makes read, or makes listen to a child the content of products that include obscene images, texts, or audio,

b) who shows in public, or displays in places where children may access or see, or displays, reads, makes read, speaks, or makes speak in a visible manner the content of these,

c) who distributes these products for sale or rental in a way that allows one to become acquainted with their content,

d) who distributes for sale, sells, or rents these products in other shopping places than where they have been assigned to,

e) who gives or distributes these products free of charge as part of or as gift along with other products or services,

f) who advertises these products,

are punished by two to six years of prison and judicial fine.

(2) The person who publishes or mediate the publication of obscene images, texts, or audio through the media is punished by 6 months to three years of prison and up to five thousand days of judicial fine.

(3) The person who uses children in the production of products that include obscene images, texts, or audio is punished by five to ten years of prison and up to five thousand days of judicial fine. The person who imports, reproduce, distribute for sale, sells, transports, stores, exports, possess, or provides for others’ use is punished by two to five years of prison and up to five thousand days of judicial fine.

(4) The person who produces, imports, distributes, sells, transports, stores, shows, or possesses products that include textual, audio, or visuals that incorporate violent sexual behaviors or sexual behaviors that involve animals, corpses, or unnatural ways, are punished with one to four years of prison and up to five thousand days of judicial fine.

(5) The person who publishes or mediates the publications in the media and who enables for children to see, listen to, or read the content of the products outlined in paragraphs three and four [above] is punished with six to ten years of prison and up to five thousand days of judicial fine.

(6) Specific security measures are to be taken against legal persons [e.g. corporations, in contrast to “real persons,” e.g. individuals] due to these offenses.

(7) The provisions of this article cannot be exercised against scientific works and, with the exception of the third paragraph and with the condition that children’s access to them is prevented, to works with artistic and literary value.

[2] It is common in Turkey for heterosexist authors / speakers to express their beliefs through the intentional use of “cinsel tercih” (“sexual preference”) instead of “cinsel yönelim” (“sexual orientation”).

“Flash lesbian decision by the Constitutional Court”

The request to cancel the article of The Turkish Penal Code (TPC), which prescribes punishment against distributors of pornographic movies that involve “unnatural ways of sexual relationship such as anal, oral, gay, lesbian,” was discussed [in court].

Source: Sözcü, “AYM’den flaş lezbiyen kararı”, (“Flash lesbian decision by the Constitutional Court”), 18 April 2015, http://www.sozcu.com.tr/2015/gundem/aymden-flas-lezbiyen-karari-807630

The [Constitutional] Court denied the cancellation request with majority rule. However, the justices who argued that the Court’s opinion was vague and who dissented to it argued stated that “Such relations are within the framework of personal freedoms. ECtHR [European Court of Human Rights] decisions too follow this perspective.”

Charges on the basis of TPC Article 226 [see footnote 1] were brought against a person who was caught selling pornographic movies that included lesbian sexual relation. As part of the processions, Aydın’s 3rd Criminal Court appealed to the Constitutional Court for the cancellation of the term “unnatural ways” used in the article. The [Criminal] Court argued that this term was open to interpretation and that consensual sexual relations in “unnatural ways” cannot be considered an offense.

However, the Constitutional Court denied the request with a majority vote. The Court’s opinion emphasized that the punishments prescribed by the article in question refers not to personal circumstances but to the distribution of pornographic images that display different sexual preferences. Justices Serruh Kaleli and Serdar Özgüldür, who dissented to the opinion, said:

“The term ‘unnatural ways’ is wholly indeterminate. ECtHR decisions have affirmed that, excluding incest, circumstances that do not involve force, violence and that depend on [the presence of mutual] consent are in fact protected by the principle of personal privacy and that this is an issue of freedom. In this respect, the rule that is subject to the cancellation request is clearly against the principle of the constitutional state. Furthermore, the fact that it violates the principle of personal privacy is self-evident.”

 


[1] The full text of the article in question, which outlines punishments for the possession and distribution of “obscene” products, is provided below. The Turkish Penal Code does not provide a definition of “obscenity.” -Trans.

“Türk Ceza Kanunu [Kabul Tarihi: 26.9.2004]” (“The Turkish Penal Code [as of 26 September 2004]”), Grand National Assembly of Turkey, http://www.tbmm.gov.tr/kanunlar/k5237.html

Obscenity

ARTICLE 226. – (1) The person

a) who gives, or shows, reads, makes read, or makes listen to a child the content of products that include obscene images, texts, or audio,

b) who shows in public, or displays in places where children may access or see, or displays, reads, makes read, speaks, or makes speak in a visible manner the content of these,

c) who distributes these products for sale or rental in a way that allows one to become acquainted with their content,

d) who distributes for sale, sells, or rents these products in other shopping places than where they have been assigned to,

e) who gives or distributes these products free of charge as part of or as gift along with other products or services,

f) who advertises these products,

are punished by two to six years of prison and judicial fine.

(2) The person who publishes or mediate the publication of obscene images, texts, or audio through the media is punished by 6 months to three years of prison and up to five thousand days of judicial fine.

(3) The person who uses children in the production of products that include obscene images, texts, or audio is punished by five to ten years of prison and up to five thousand days of judicial fine. The person who imports, reproduce, distribute for sale, sells, transports, stores, exports, possess, or provides for others’ use is punished by two to five years of prison and up to five thousand days of judicial fine.

(4) The person who produces, imports, distributes, sells, transports, stores, shows, or possesses products that include textual, audio, or visuals that incorporate violent sexual behaviors or sexual behaviors that involve animals, corpses, or unnatural ways, are punished with one to four years of prison and up to five thousand days of judicial fine.

(5) The person who publishes or mediates the publications in the media and who enables for children to see, listen to, or read the content of the products outlined in paragraphs three and four [above] is punished with six to ten years of prison and up to five thousand days of judicial fine.

(6) Specific security measures are to be taken against legal persons [e.g. corporations, in contrast to “real persons,” e.g. individuals] due to these offenses.

(7) The provisions of this article cannot be exercised against scientific works and, with the exception of the third paragraph and with the condition that children’s access to them is prevented, to works with artistic and literary value.

Constitutional Court of Turkey: Referring to gays as “perverts” is hate speech

Source: Yıldız Tar, “Constitutional Court of Turkey: Referring to gays as “perverts” is hate speech”, 17 July 2014, http://kaosgl.org/sayfa.php?id=17105

For the first time, hate speech on the ground of sexual orientation is among rulings of the Constitutional Court. The Court acknowledged that calling gays “perverts” is hate speech. The decision can be seen here in Turkish. 

Attorney Sinem Hun’s application to the Constitutional Court of Turkey about a news article that appeared on the website Habervaktim.com, which involved hate speech referring both to her and to the Kaos GL Association, has come to a conclusion.

The Constitutional Court declared that the article stating, “Sinem Hun who is registered with the Ankara Bar Association and is the lawyer of the association of the perverts called Kaos GL” on Habervaktim.com is indeed hate speech on the ground of sexual orientation but ruled that it actually takes aim at the association and not at the applicant. Hereby, this is the first time hate speech on the ground of sexual orientation has been acknowledged by the Constitutional Court.

Not an assault on honor and dignity!

The Court, in order to protect the material and moral rights of Sinem Hun, decided that it is acceptable that Hun’s right to protect her honor and dignity has been violated but that her right to respect for her honor and dignity has not been broken.

The Constitutional Court supported its decision by claiming that “Unless there is a call for violence or hate speech that might damage pluralistic democracy and might even destroy it, punishment which limits individuals’ freedom should be avoided”.

As the Court investigates Habervaktim.com’s article named “Zionist Servants Again Attack with Terror” they concluded that it did not include any hate speech regarding Sinem Hun.

Hun claimed that the expression “lawyer of the perverts” is hate speech, that there is an assault on her honor and that Habervaktim.com continuously assaults gays with its articles and hate speech.

(more…)