Source: Sosyal Politikalar, Cinsiyet Kimliği ve Cinsel Yönelim Çalışmaları Derneği. (Social Policies, Gender Identity, and Sexual Orientation Studies Association) LGBT Hak İhlalleri: Emsal Dava Analizleri (LGBT Rights Violations: Analysis of Cases.) Istanbul: Punto Baskı Çözümleri, 2013. Available at: http://www.spod.org.tr/turkce/wp-content/uploads/2013/08/emsal-dava-analizleri-son1.pdf
Subject of Investigation
The procedures of investigation and prosecution and whether these procedures have been conducted according to the rule of law and the tenets of justice.
Scope of Investigation
Istanbul First Higher Court of Aggravated Crimes File No: 2010/368 and Decision File No: 2010/285.
Procedures of Investigation
Ahmet Öztürk was killed on 08.08.2010 at the residential address of Gülbağ Mahallesi, Yağmur Sokak No: 5 D: 9. Ahmet Öztürk was killed at the scene by being stabbed: 3 times on the lower right side of his chest, 1 time on the lower left side of his chest, 1 time in his throat, 1 time in the back of his neck, 1 time in the chest.
The suspects were caught due to an anonymous tip on the following day.
1. Proceedings regarding suspect Ömer Dündar:
The police took Ömer Dündar into custody on 09.08.2010 from his hiding place after an anonymous tip. His statement was taken the same day at the Istanbul Public Order Department and he was taken to the Office of the Attorney General where the prosecutor requested his arrest and sent him to the Şişli Fourth Criminal Court of Peace. The court decided to arrest him.
The suspect gave his statement with a lawyer present at the Homicide Department. The suspect stated that he went to Taksim with his friend Tolgahan Gürsoy, met the victim Ahmet Öztürk and his friend Nevzat Can at Club 17, and went to the address where the events took place, where he had sexual intercourse with Nevzat Can. The suspect stated that he was in a different room with Nevzat Can when they heard a noise from the other room, upon which they tried to open the other room’s door but were locked out. After that, the suspect Tolgahan Gürsoy opened the door with a bloody knife in his hand and they left the house. Upon leaving the house, the suspect Tolgahan Gürsoy threw the knife into a drain and they left the scene to go swimming in Büyükçekmece.
In his 10.08.2010 statement at the Şişli Fourth Criminal Court of Peace, the suspect Ömer Dündar stated that Tolgahan and Ahmet were in a different room and that he had seen Ahmet with a knife in his hand in the kitchen. The suspect stated that there were girls with Ahmet and Nevzat at the bar but that the girls had understood that the two men were homosexuals. He stated that the girls did not come to the house, that he had sexual intercourse with Nevzat at the house, that the victim and the murder suspect came to the room together, and that they were not arguing. He stated that he then heard Tolgahan screaming, “What are you doing, stop, don’t!” and that they tried to enter the room but the door was blocked. After that, Tolgahan opened the door; Ahmet was dead on the floor; Nevzat gave them 50.00 TL as they were leaving the house and told them to run away. As they were leaving the house, Tolgahan threw the knife into a drain. The suspect stated that he was not guilty. In the court questioning, the judge on duty ordered Ömer Dündar’s arrest. The Istanbul First Higher Court of Aggravated Crimes rejected the objection to the arrest by Ömer Dündar’s lawyer on 20.08.2010.
The expert report of the Criminal Police Laboratory of the General Directorship of Security of 07.10.2010 stated that some of the objects allegedly used by Ömer Dündar matched Ömer Dündar’s DNA.
2. Proceedings regarding suspect Tolgahan Gürsoy:
On 09.08.2010 the police took Tolgahan Gürsoy into custody from his hiding place after being tipped off. He used his right to remain silent the same day at the Istanbul Public Order Department and he was taken to the Office of the Attorney General where the prosecutor requested his arrest and sent him to the Şişli Fourth Criminal Court of Peace. The court decided to arrest him.
In his statement at the court on duty, Tolgahan Gürsoy stated that he had intended to go to Ankara with Ömer Dündar but that they were unable to go and instead went to Taksim to drink beer. Regarding the event, he stated that his goal was not to kill, that his honor was under attack, that he thought he would die if he did not do as the victim said, and that he had committed the actions in self-defense because of the threat that his sexual organ would be cut. He stated that he still could not believe he had killed a person and that he felt remorse.
The expert report of Criminal Police Laboratory of the General Directorship of Security of 07.10.2010 stated that the blood stains on the glass Tolgahan Gürsoy used and on the knife’s handle matched his DNA.
3. The statement of witness Nevzat Can:
Nevzat Can, one of the witnesses in the case and a close friend of the victim, stated in his statement to the police that they had gone to the gay bar Club 17 in Taksim, that they had stayed for two hours, and that they had gone home with two people they met. He stated that he went to his room with Ömer and that as they were about to start intercourse, the victim came into the room naked with Tolgahan behind him. He stated that he heard Ahmet scream while he was taking a shower after intercourse but that Tolgahan had said that it was nothing. When he heard Ahmet scream again, they went to the room and forced the door because it was locked. When the door opened, he saw Ahmet lying in a pool of blood and that Tolgahan looking at Ahmet said, “Son of a bitch! If you try to fuck a man, this is how a man gets sliced!” He said Tolgahan was dressed and that he threw the knife on the ground and told Ömer to pick it up. He stated that he gave Tolgahan and Ömer 50 TL and told them that he would not tell on them out of fear. The men left.
Şişli Public Prosecutor’s Office’s Investigation File No: 2010/36021, Summary of Proceedings File No: 2010/1924 demanded the charge of premeditated murder for Tolgahan and the charge of disposing of, concealing or changing evidence for both defendants. Istanbul Public Prosecutor’s Office opened trial on 27.10.2010 with Investigation No: 2010/41069, Indictment No: 2010/1607.
Istanbul First Higher Court of Aggravated Crimes accepted the indictment with File No: 2010/368.
Procedures of Prosecution
Istanbul First Higher Court of Aggravated Crimes accepted the indictment on 28.10.2010 and opened a public case against Tolgahan Gürsoy and Ömer Dündar. The first hearing took place on 24.01.2011.
There were no joint plaintiffs in the Istanbul hearings. However, Ahmet Öztürk’s family was a joint plaintiff by instruction given to the local court that has jurisdiction in their domicile. The family’s request to join as joint plaintiffs was based on them being complainants and that the defendants be punished.
The case continued for seven hearings.
The 1st hearing on 24.01.2011 was the only important hearing where the defendants and the witness Nevzat Can were heard, other than the sentencing hearing. The only different voice against the scenario put forward during the investigation phase was Nevzat’s.
Nevzat Can, in his statement before the court, stated; “I met Ömer the night of the event, and then the victim met Tolgahan; we reached an agreement and went to my house all together. There were never any girls in front of or in bar CLUB 17 under any condition; we never promised them that we would be with girls, rather we said we would all have fun together. We did not go to my house with girls; the four of us left the bar and went to my house. Ömer and I were in a separate room; the victim and defendant Tolgahan were in the living room. There were no troubles between Ömer and me. From the living room where the victim and Tolgahan were, which had its doors locked; I heard the voice of the victim three times; he was screaming “Nevzat.” When we went to the door with Ömer and asked them, they said there was nothing wrong but we sensed a problem. We pushed the door with Ömer but could not open it or find out. We only understood what happened when Tolgahan opened the door. I saw my friend naked on the floor, there was blood in the middle of the futon, and there was blood in front of where he was lying on the floor. I did not see any signs of struggle and I did not see any blood on the defendant’s face or hands. But maybe I did not see because of panic. I thought they might hurt me because I witnessed this and I told them that they should get away immediately. Then Tolgahan asked, “Did you take money?” Upon hearing that I gave the 50 TL I had in the pocket of my bathrobe. Tolgahan asked for the knife that was on the carpet on the floor and Ömer may have given it to him. Tolgahan was fully dressed. The victim Ahmet was naked; as far as I can remember, the curtains were drawn and the TV and video player were turned off. I did not hear a single sentence from Tolgahan; and I cannot say anything about whether I heard Ahmet saying something about girls.”
One of the defendants, Ömer Dündar, stated; “When we got to the house, Nevzat and I went to a room. The deceased and Tolgahan stayed in the living room. There was intercourse between Nevzat and me, and then we took turns showering. I went to the kitchen at some point to drink water. The incident when I saw a kitchen knife in the victim’s hand was when we first got to the house. So I am trying to say this: the knife did not belong to Tolga; Tolga was not carrying a knife. I think the knife used in the incident was this knife in the kitchen. When we were in the room with Nevzat, we heard sounds from the living room. When I asked Nevzat about it, he told me “Ahmet is probably grumpy again.” We then heard the sounds of a short struggle. When we looked at the door, we realized it was locked. When Tolgahan opened the door, we saw the scene. Tolgahan was dressed and he had a knife in his hand; the victim was lying on the floor naked. The defendant Tolga told the witness Nevzat the words I mentioned in my statement: “Did you bring us here for this?” He said the victim propositioned him inappropriately. When he saw the scene, Nevzat hurriedly urged us to leave and said, “Go far away from here, go!” He gave me 50 TL from his bathrobe pocket. I had called Yaşar earlier so we took a taxi and met Yaşar in his vehicle. Then we went to Avcılar as we had agreed before. On the way, Tolgahan apparently took off his bloody clothes; I do not know when he undressed or when he put on his sweats as I was sitting in the front. Yaşar kept asking us what happened anyway. We did not tell the exact story to Yaşar but on the way back home, Tolgahan explained the situation to him. I did not get rid of any evidence and we did not want this event to come to this.”
The defendant Tolgahan Gürsoy stated; “It is true that we did not like the two bars we went to and so we went to this last bar where two girls signaled us in. We drank energy drinks because we had paid for them before, met Nevzat and the victim, and went out with the girls to go to Nevzat’s house. The girls left on the road and I thought they would come back later and we went to Nevzat’s house. When I asked Ahmet, he told me that the girls would come back later. On the way, Ömer said something about 50 TL and I thought that had something to do with the girls who would come and I said okay. When we got to the house, Nevzat and Ömer went to the same room and Ahmet and I went to the living room. I thought we would all sit together and chat, actually there were drinks before and we drank them. But the other defendant Ömer and Nevzat did not come to the room we were in and I asked Ahmet when the girls would come. I told him to turn on the TV, it was around 05:00 AM but the victim kept insisting that I wash my face and take a shower. I could not make sense of it and I replied that we would take showers if need be when the girls came. He went to take a shower. I understood that Nevzat and Ömer were engaged in intercourse in the other room. Even though Ömer is my friend, I had never seen him naked. Then I started to comprehend why we were there. When he came back from the shower, I sensed some weirdness in the victim’s behavior, he wanted to get close to me and become intimate. When I told him that I did not condone this with my words and actions, his voice changed as I stated in my previous statement, and I started to hear words that I was not used to, that I had never heard before. I was subjected to insults. Even though he had a knife in his hand, he was trying to impose his fantasies on me, he said things like you will be my wife, and if need be, I can be your wife. Under this pressure and force, I tried to set a lighter tone and told him I could do what he wanted. I tried to calm him but he kept forcing me and his threats were increasing; because he had a knife to my throat, I partially complied with his requests to hold his sexual organ and to put it in my mouth. I partially did what he told me; he kept on insisting on different things. At some point I head-butted him in the hope of grabbing the knife in his hand but I failed. But upon my head-butting him, his head hit my nose and we started to struggle on the futon. The struggle continued on the floor. When I tried to grab the knife that he was holding at my neck, I incurred the wound in my left palm that still has a scar; there was blood. He was still trying to kiss and bite my neck during this struggle. He was trying to fulfill himself sexually; he was trying to hold me. I had my pants at my knees upon his request; I was thinking about how to escape from him. I was not making any noise because I knew the others were in the other room; I was in shock and nervous. The victim was extremely intoxicated. He had hugged me on the way to the house, he could not walk straight and he had consumed alcohol again when we got to the house. He was using the knife he had used to peel fruit in the kitchen when we first got to the house. I honestly had not realized that he had locked the door. As I said, I could not raise my voice and scream; under the influence of the event, I do not know when I picked up the knife, when or how many times I stabbed him. But I heard Ömer scream “What’s going on?” When I tried to open the door, he held my foot and pushed me to the floor and we struggled again. I opened the door and when I did, I said something to Nevzat, I asked him if they brought us here for this reason. Then they saw the scene and the witness Nevzat told Ömer to “get away from here quickly.” At this point, the victim was breathing, he was alive. I did not even consider that he might die later, I never thought about that. But it was clear that we were both wounded. In shock, we got away from there with Ömer. I threw out the knife before we got in Yaşar’s car. Throwing out the knife and my bloody clothes was my doing; the other defendants did not even know about it.”
The defendant Yaşar İlerde’s statement was taken in regard to the charge of disposing of, concealing or tampering with evidence. In his statement before the court, the defendant said, “I was already out when they went to the bar and I had split up from them when they were going to Nevzat’s house because I thought they would meet the girls. Later, upon receiving a call, I went to a specific place, and they came to the location with a vehicle. I learned about the disposal of the knife and clothes later. Even though I asked many times, the two defendants did not tell me anything about the event. When we were closer to reaching home in Kartal, Tolga told me a little bit about the event and then we went to our houses. I learned about the event then; they were both in shock and scared. Only when we got to the tollbooths did I realize that Tolgahan had thrown out his clothes but I did not see him throwing them. Ömer did not make any suggestions about this either; he acted on his own will.”
The defendant Ömer Dündar was released at this hearing and the next hearing was scheduled for 16.03.2011.
The 2nd hearing on 16.03.2011 processed only the request of the victim’s family to join the pending case as joint plaintiffs. The hearing was set for 25.04.2011.
The 3rd hearing on 25.04.2011 did not advance the trial; it was only decided to wait for the statements of the victim’s family who had joined the case by instruction given to the local court that has jurisdiction in their domicile. The next hearing was scheduled for 16.06.2011.
At the 4th hearing on 16.06.2011, defendant Tolgahan Gürsoy’s military service friend was heard as a witness. The witness testimony is not relevant to the trial.
The counsel for the prosecution submitted its opinion and requested the ACQUITTAL of Ömer Dündar. The prosecution requested that Tolgahan Gürsoy be sentenced according to the charge of premeditated murder but also requested the APPLICATION OF A REDUCED SENTENCE because of the claim that the incident involved unjust provocation.
The defense counsel requested time to prepare their defense and the hearing was scheduled for 12.09.2011.
At the 6th hearing on 12.09.2011, the defendants and their counsel requested more time to prepare their defense. The hearing was postponed to 06.10.2011.
In between hearings, the defense counsel of Tolgahan Gürsoy gave a written defense. In the document, they requested that no punishment be given on the basis of Articles 25 and 27/2 of the Turkish Penal Code. They asked that should the court reject this, then Article 29 should be applied.
At the 7th hearing on 06.10.2011, the court made its ruling after the defense was received.
The court announced its decision after the hearing. Defendants Yaşar İlerde and Ömer Dündar were acquitted. The defendant Tolgahan Gürsoy was first sentenced to life in prison for the murder of Ahmet Öztürk but his punishment was reduced to 12 years in prison due to unjust provocation in the murder. His good behavior during the hearings led to a further 1/6 reduction and his punishment was reduced to 10 years in prison. The court also sentenced the defendant for theft for 1 year 5 months and 15 days in prison.
On 10.10.2011, Tolgahan Gürsoy’s defense counsel appealed this decision.
On 15.11.2011, Ahmet Öztürk’s sister Sıdıka Şeker’s counsel lawyer Fırat Söyle joined the case and requested an appeal of the verdict. In the appeal petition, he argued that Article 29 and 62 of the Turkish Penal Code were not applicable in this case; that there were no thorough investigations; that the defendants’ testimonies were fictional; and the testimony of witness Nevzat Can had not been investigated. He requested an annulment of the decision because the decision stood in contradiction to the European Convention on Human Rights, the precedents of the European Court of Human Rights, and Article 10 of the Constitution.
The Supreme Court of Appeals rejected the appeal request in the Republican Public Prosecution Office Notification No: 2012/29131 and affirmed the decision.
On 11.12.2012, the Supreme Court of Appeals First Penal Chamber approved defendant Tolgahan Gürsoy’s 10-year prison sentence. The First Penal Chamber of Supreme Court of Appeals also rejected Fırat Söyle’s request for an inquiry with a court hearing on the basis that the plaintiff did not possess any such right.
After the legal mechanisms were exhausted to overturn this discriminatory decision, an individual application was submitted to the Constitutional Court on 28.02.2013 with the hope of obtaining a just decision.
Conclusions on the Investigation and Observations
An analysis of the case file reveals that the court ruled on the assumption that the argument, which posits that the defendant was a victim of sexual fantasies, could not be falsified. The plaintiffs who joined the case did not have any influence other than to their statements to the local court that has jurisdiction in their domicile. Ahmet Öztürk’s family seemed not to care very much about the case. The organized statements by the defendants and their defense teams could not be countered. The prosecution ended up being convinced by the defense. In the end, the panel of judges agreed with the defense’s demands by unanimous vote.
The Supreme Court of Appeals did not place any importance on the request of the joint plaintiff’s counsel to intervene with the case through an appeal. The joint plaintiff’s counsel statements in the appeal petition that the defendant committed a hate-motivated crime and that the indictment should be prepared on the basis of Article 82/b of the Turkish Penal Code are significant. Our penal code does not consider hate-motivated crime a specific category and these crimes do not constitute a basis for increasing punishments in murder. However, the Supreme Court of Appeals’ shallow and unjustified decision has the effect of encouraging hate crimes.
The Court’s 06.10.2011 decision in favor of the defendant did not put forth a solid reasoning for the application of unjust provocation but rather simply accepted the defendant’s defense. The fact that the court provided a decision without justification violates Article 141/3 of the Constitution that states, “the decisions of all courts shall be made in writing with a statement of justification.” and Article 6 of the European Convention on Human Rights that states “everyone is entitled to a fair and public hearing.” The defense counsel also made a request for an appeal based on this argument.
The Supreme Court of Appeals First Penal Chamber’s 11.12.2012 rejection of the joint plaintiff’s counsel request for an inquiry with a court hearing on the basis that the plaintiff did not possess the right to this request stands in contrast to Article 10 of the Constitution which takes up “equality” and Article 6 of the European Convention on Human Rights that states “everyone is entitled to a fair and public hearing.” The right to an inquiry with a court hearing in the Supreme Court of Appeals is only granted to the defense according to the Code of Criminal Procedure No: 1412 Article 318. This contradiction must be eradicated by changing the Code of Criminal Procedure No: 1412 Article 318 and including the joint plaintiff’s right to request to an inquiry with a court hearing in the Supreme Court of Appeals. In fact, in cases when an inquiry with a court hearing is not granted, the clarity and soundness of the Supreme Court of Appeals’ investigation is open to doubt.
The practices of accepting the unjust provocation argument and meting out reduced sentences for good behavior by local courts and the Supreme Court of Appeals Penal Chambers are against the principles of equality and are administered with a homophobic/transphobic mentality. These practices can be seen in various cases that are similar to the Ahmet Öztürk murder case and can be seen as an open invitation to commit similar murders. It is necessary to rid all branches of the judiciary from their prejudices against hate-motivated crimes and homosexual and/or transsexual individuals. Judicial decisions support homophobic and transphobic murders. In this way, the legislative branches must institute amendments to legislation and statues and efforts must be made to ensure that all individuals who come under judiciary rule encounter no prejudice and are treated with objectivity, transparency, and fairness.
Lastly, the convict Tolgahan Gürsoy may be transferred to an Open Penal Facility for his good behavior during his period of incarceration. We can assume that the convict will be granted several permits each year to leave the facility given the fact that such permits are given to convicts in open facilities. The convict has almost completed the first half of his sentence. He will be released in 2015 or 2016.
The strengthening of homophobia and transphobia by the judiciary hurts people’s trust in justice and law. Though the right to life is among the most fundamental rights to be protected, it is obvious that the right to life of victims of hate crimes, their relatives, and individuals that belong to discriminated groups is under jeopardy. Legal regulations are urgently needed to prevent this. It is necessary to include the terms sexual orientation and gender identity in constitutional equality clause and to recognize hate-motivated crimes in the Turkish Penal Code.
Lawyer Fırat Söyle
AN ANALYSIS OF THE PENAL PROCEEDING AND DECISION IN THE AHMET ÖZTÜRK MURDER ON THE BASIS OF THE RIGHT TO LIFE AND BAN ON DISCRIMINATION
Tolgahan Gürsoy stabbed Ahmet Öztürk nine times and killed him. The Istanbul First Higher Court of Aggravated Crimes’ decision, confirmed by the Supreme Court of Appeals, accepted the defendant’s defense of “forced to fulfill sexual fantasies” and lessened the punishment through the unjust provocation reduction. This limits the boundaries of the search for justice within the law in crimes against LGBT people in Turkey. An evaluation of the judiciary’s attitude through the perspective of human rights may help to show how these decisions strengthen a certain political language. The decision regarding the murder of Ahmet Öztürk does not only reveal the judiciary’s heterosexism codified by social prejudices and allegedly moral norms, but also shows the violation of fundamental human rights by violating the right to life and a flagrant disregard for discrimination.
In the reasoning of the Court’s decision regarding the events that led to Ahmet Öztürk’s death, the Court concluded: “The victim forced the defendant to fulfill sexual fantasies as explained by the defendant, drew the knife, and demanded certain sexual acts. A struggle ensued and the defendant captured the knife, injured and killed the victim as stated in the Medical Examiner’s report. Considering the extent of the unjust actions and their effects on the defendant, a maximum reduction in penalty is necessary and the defendant must be punished by 12 years in prison.” The Court did not only apply the unjust provocation reduction of Article 29 of the Turkish Penal Code, but also gave a good behavior reduction equal to one sixth of his sentence for his behavior during the judicial process, as organized by Article 62/1 of the Turkish Penal Code. Therefore, the defendant was sentenced to 10 years in prison rather than an aggravated life in prison sentence.
In this way, the court gave the lowest possible sentence for a convicted murderer, did not consider witness testimonies, and rejected the joint plaintiff’s counsel’s requests to investigate all details. The joint plaintiff’s counsel had requested further investigation that would reveal whether the murder was motivated by hate and discrimination. For example, the defendant claimed in his defense that “they were going to the victim’s friend’s house with the girls; the girls left on the way; the victim tried to pressure, force, and threaten him to sexual intercourse even though he personally had no such intention when he was going there; the victim was still trying to fulfill himself sexually as he was trying to get away.” These claims were not investigated to determine if they had material grounds during the investigation or the prosecution. No one investigated the bar where the victim, the defendant, and his friends met, though the joint plaintiff’s counsel argued that homosexuals predominantly frequented the bar. No one questioned the claim that the victim forced the defendant into sexual intercourse, though they may have left the bar together to have intercourse. The testimony of the victim’s friend, who heard the victim screaming for help from the room he and the defendant were in, was not considered. The court only considered the defendant’s testimony and one witness testimony to rule that the murder occurred through unjust provocation. The Supreme Court of Appeals confirmed the first court’s decision by rejecting the joint plaintiff’s counsel’s request for an appeal. Therefore, all material facts regarding the act of murder and the events surrounding it were left without shedding light on the circumstances of the murder of Ahmet Öztürk.
1. The violation of the obligation to effective investigation in cases of the violation of the right to life
Article 2 on the right to life of the European Convention on Human Rights (ECHR) imposes a procedural obligation on states to investigate all violations of the right to life apart from deaths by natural causes, whether they are committed by state authorities or private citizens. Turkey is a signatory state and Article 90 of the Constitution puts forth that international agreements duly put into effect bear the force of law. This obligation is a natural outcome of considering Article 2 on the right to life with Article 1, which binds the signatory parties to secure the rights under the Articles of the Convention of all individuals within their sovereign jurisdiction.
According to the precedents of the European Court of Human Rights (ECtHR) that determine the scope and content of the obligation to investigate violations of the right to life, the investigation that the state is obligated to carry out for deaths that are not by natural causes must unmask the cause of death as well as all the circumstances surrounding the death and must determine the legal obligations of the perpetrators, which may result in a sentence of imprisonment and appropriate punishment. The principle goal of the obligation to investigate is to ensure that domestic laws protecting the right to life are effectively used and perpetrators are brought to justice. The ECtHR emphasizes that inquiries regarding deaths that are not by natural causes must be independent, objective, effective, and must unmask all details surrounding the death. The state must take all necessary steps to secure all evidence regarding the case within the scope of an effective inquiry. The result of the investigation must be based on a detailed and objective analysis of all data.
The ECHR’s positive obligation on the state to effectively protect the right to life extends beyond the period of investigation and includes the criminal trial. The obligation of an effective investigation tacitly requires the creation of an effective and independent judicial system that uncovers the motive of murder and the punishment of criminals. To ensure accountability after the event of death, in cases that necessitate it, the investigation must conclude by the time of trial, the court must take the case seriously, study the case with detailed attention, and give a punishment that acts as a deterrent. In this way, any inadequacy or neglect by the judicial organs in uncovering the events surrounding the murder or the perpetrator constitutes a violation of the obligation to effective investigation. National courts cannot, under any condition, let events that threaten the right to life or end life, go unpunished.
When the positive obligation of the state to carry out an effective investigation is considered within the framework of the aforementioned principles, it is clear that such an investigation into the events and material evidence that surround Ahmet Öztürk’s murder, and the motivation of the perpetrator was not conducted. The joint plaintiff’s counsel’s request to widen the scope of the investigation to uncover why the perpetrator went to the house and how and with whom the murder weapon got to the room where the murder took place was rejected. The question of how Ahmet Öztürk could continue to fulfill his sexual fantasies while calling for help, according to the witness testimony, was left unanswered. The state has violated the protection of the right to life by failing to conduct an effective and adequate investigation into the details of the murder.
The application of a reduced sentence for “unjust provocation” requires that the crime must be committed as a result of a victim’s unjust act. It is a violation of the right to life that the court deem the assumption that Ahmet Öztürk was “fulfilling homosexual fantasies” as an unjust act without sufficient grounds. By considering the desire to engage in same-sex relations an unjust act, the court leaves the individual unprotected against threats to his life and property. Significantly reducing and disabling the penalty, in such a serious breach of the right to life, through the unjust provocation reduction removes the deterrent effect of punishments, which is an aspect of the obligation to investigate effectively.
It must further be emphasized that judicial practices that reduce penalties, such as unjust provocation and good behavior reductions, create an environment of impunity that protect perpetrators who violate the right to life and the physical integrity of certain groups. Regarding a person’s sexual orientation and gender identity as a cause for unjust provocation, when the criminal hearing should instead uncover and punish perpetrators, is discrimination by the judiciary itself.
2. The obligation to investigate murders suspected to have been committed due to discrimination and the violation of the ban on discrimination based on sexual orientation due to impunity created by “justice”
The penal court’s decision on the murder of Ahmet Öztürk must be analyzed in two fundamental perspectives of the ban on discrimination based on sexual orientation. The European Convention on Human Rights, to which Turkey is party, mandates the detailed analysis of racist and discriminatory motivations that may constitute the background to a murder through the state’s obligation of investigation, based on the protection of the right to life and physical integrity. Submitting acts of violence and aggression motivated by racism and acts not motivated by racism to the same evaluation constitutes a violation of the ban on discrimination by neglecting the hate-motivated nature of an act in the first category. Not separating acts that are different by nature and evaluating them in the same way is an indirect violation of the ban on discrimination. The European Court of Human Rights’ fundamental principles in the investigation of violent acts by third parties based on ethnic or racial hatred also applies to hate-motivated killings based on sexual orientation and gender identity. This application is due to the fact that the ban on discrimination aims to protect individuals and groups who are structurally unprotected and prone to being subjected to violence because of their identities based on race, gender, ethnicity, and sexual orientation. In this context, not investigating whether or not the murder of Ahmet Öztürk was motivated by hate because of his sexual orientation is a significant failure.
Instead of investigating if the murder of Ahmet Öztürk was committed as an act of hate towards his homosexual identity, the court considered Ahmet Öztürk’s homosexuality and “the desire to fulfill his homosexual fantasies” as elements that provoke murder and reduce the perpetrator’s penalty. We must study the implications of the unjust provocation defense, which has become the standard defense in homophobic and transphobic murders in Turkey, and the courts’ generous acceptance of this claim.
Until recently, the judiciary has applied unjust provocation and good behavior reductions in the murders of women as well as the murders of homosexual, transvestite, and transsexual people in Turkey. The legal and political struggle led by the feminist movement and female lawyers who have insistently revealed and pursued cases has resulted in a significant drop in unjust provocation reductions in cases of murdered women. It is the organized women’s movement’s crucial gain that courts have started to impose the harshest penalties in these cases.
However, it is still common for prosecutors to request and for judges to rule on the unjust provocation reduction in hate-motivated killings of homosexual, transvestite, and transsexual people. In the murder of Ahmet Öztürk, the court accepted “the victim’s suggestion of homosexual relations” as grounds for an unjust provocation reduction even though the crime of killing a human being should be punished with life in prison.
Ahmet Öztürk’s homosexuality caused the penalty of life in prison for the crime of “premeditated murder” to be reduced to 12 years by the “unjust provocation” reduction and then to 10 years by “arbitrary reduction.” The case of Mustafa Murat Yüceel, murdered by Cemal Tikici after going home with six people he met at a gay bar, is another hate-motivated killing that parallels the case of Ahmet Öztürk. Cemal Tikici also received a reduced sentence for good behavior.
Similarly, a prosecutor requested the unjust provocation reduction for İlker Karataş who shot and killed 19-year-old trans sex worker Günce Hatun.
Again in 2010, Savaş Tarkan was tried for stabbing his friend of 10 years, Dr. Teyfik İlker İzmirlioğlu, 25 times. His penalty was reduced to 13 years because he committed the crime under harsh provocation when the victim wore a red thong and forced him to have sexual intercourse
7 years ago in 2006, Baki Koşar was found at his home in Feriköy, Istanbul having been stabbed 27 times after meeting Serhat B. online and invited him to his house. Serhat B. used “the unjust provocation reduction by claiming that Koşar offered him “inverted relations”” and his penalty was reduced to 15 years.
The commonalities in these murders with multiple stab wounds and the perpetrators’ testimonies are intriguing. In each case, the perpetrators argued that the victims, killed by multiple stab wounds, forced them to have intercourse and when the perpetrators refused the victims threatened them with knives. In all examples, the penal courts legitimized the hate motive, which led to murder as a reaction against sexual advances, through reduced sentences due to unjust provocation. As seen in these examples, unjust provocation reductions have served to aid perpetrators who committed hate-motivated killings based on sexual orientation. However, these murders directly targeted the victims’ identities and constitute hate crimes with homophobic and transphobic motivations.
When the systematic use of unjust provocation reductions in the murders of homosexuals, transvestites, and transsexuals are evaluated within the framework of human rights laws, we can easily conclude that the state violates the ban on discrimination. It does so through its politics of punishment and indemnity that are a result of the courts’ heterosexist attitudes.
In its Opuz decision against Turkey, the ECtHR emphasized that the lack of deterring penalties in cases of violence against women in Turkey points to Turkey’s general and discriminatory judicial passiveness. The Court ruled that this attitude affects women and that violence against women constitutes a type of discrimination based on social gender. The Court stated that the passivity of the judicial system, and the indemnity used by perpetrators, creates an environment that leads to domestic violence in Turkey. Furthermore, it and considered Turkey’s failure to take preventive measures against violence and its inability to execute effective penal justice as discrimination.
The Court specifically emphasized that a general policy or measure, which has negative effects on a specific group even if it does not specifically target the group, can be considered discrimination. This is important for individuals whose right to life has been violated based on their sexual identity.
The unjust provocation reduction does not directly target individuals whose rights to life or physical integrity have been violated because of their sexual identity. However, this reduction, embodied in cases regarding the violation of the right to life, creates a negative effect on individuals with different sexual orientations and constitutes a discriminatory treatment in the context that the prevalent penal policy in the courts considers proposals of homosexual intercourse as unjust acts. The systematic use of unjust provocation reductions in this type of murder cases and therefore, this environment of indemnity, has a discriminatory effect on victims because of their sexual identities.
We live in a country where we are subjected to a justice system that gives the lowest possible penalties to the murderers of homosexual, transvestite, and transsexual people. In this country, an organized and violent lynch mob targets trans people to kick them out of their homes and the prosecutors consider this freedom of expression and does not pursue them. Trans people continue their struggle to live with the violence and hate that they are subjected to daily. State officials continue to deem homosexuality a sickness. The social and state discourse that creates violence and discrimination based on sexual orientation and gender identity lays the foundations of physical violence and hate-motivated killings. This discourse shapes the judicial policies that recirculate hate. This is why the struggle for rights against the heterosexist justice system must work in tandem with a political struggle that targets the oral, written, symbolic, and material violence and discrimination LGBT people face in all parts of their lives.
Self Defense and State of Necessity
ARTICLE 25– (1) No punishment is given to an offender who acts with immediate necessity, according to the prevailing conditions, to repulse or eliminate an unjust assault against his or another person’s rights, of which the recurrence is highly expected. (2) No punishment is given to the offender for an act executed to protect himself from a severe and definite danger or an assault against his or another person’s rights, where he has no other choice to eliminate this danger. However, there should be proportional relation between the imminent necessity to protect oneself and the seriousness of danger, and the means used to eliminate this danger.
 Exceeding of limit ARTICLE 27– (1) Where the limit is unintentionally exceeded due to excusatory causes, the punishment is imposed by reducing the punishment stipulated in the law for negligent offenses (from one sixth up to one third), if the act is subject to punishment even executed in negligence. (2) No punishment is given to the offender if the limit during self-defense is exceeded as a result of excusable excitement, fear or anxiety.
 Unjust Provocation ARTICLE 29– (1) A person committing an offense with affect of anger or asperity caused by the unjust act is sentenced to imprisonment from eighteen years to twenty-four years instead of aggravated life imprisonment, and to imprisonment from twelve years to eighteen years instead of life imprisonment. In other cases, the punishment is abated from one-fourth up to three thirds.
 Matters of Discretionary Mitigation ARTICLE 62– (1) In case of existence of the discretionary matters of mitigation extenuating the punishment in favor of the offender, the offender is sentenced to life imprisonment instead of aggravated life imprisonment; or twenty-five years imprisonment instead of life imprisonment. The grounds for discretionary mitigation are indicated in the court’s decision. (2) In evaluating the circumstances for mitigation, background, social relations and behavior of the offender after the commission of offense and during the trial period, and potential affects of the punishment on the future of the offender is considered.
 Qualified form of felonious homicide
ARTICLE 82– (1) In case of commission of this offense for the following reasons the offender is sentenced to aggravated life imprisonment; a) Willfully, b) Ferociously or brutality, c) By use of nuclear, biological or chemical weapons which cause explosion or result with fire, flood, destruction, sinking etc. d) Against any one of the antecedents or descendants, or spouse or brother/sister, or e) Against a child or a person who cannot protect himself due to corporal or spiritual disability, or f) Against a pregnant woman, or g) By virtue of public office, or h) With the intention of concealing or facilitating commission of an offense, or destroying the evidences, or i) Blood feud, j) Ethical reasons.
 Angelova and Iliev v. Bulgaria, 26/07/2007, App. Nr: 55523/00, § 94, and Rantsev v. Cyprus & Russia, App. Nr: 25965/04, § 232.
 Salman v. Turkey, 27/06/2000, App. Nr: 21986/93, §106; on evidence: Tanrıkulu v. Turkey, 08/07/1999, App. Nr: 23763/94, §109; Gül-Turkey, 27/10/1999, App. Nr: 22676/93, §89.
 Nachova v. Bulgaria, 26/02/2004, App. Nr: 43577/98 43579/98, §131.
 Calvelli and Ciglio v. Italy, 17/01/2002, App. Nr: 32967/96, §49-51.
 Öneryıldız v. Turkey, 30/11/2004, App. Nr: 48939/99, §94-96.
 Mojsiejew v. Poland, 24/03/2009, App. Nr: 11818/02, §53; Esat Bayram v. Turkey, 26/05/2009, App. Nr: 75535/01, §47.
 Nachova v. Bulgaria, 26/02/2004, App. Nr: 43577/98 43579/98, §160.
 http://www.kaosgl.com/sayfa.php?id=11907. The perpetrator’s defense’s reasoning to get an unjust provocation reduction is almost the same as Ahmet Öztürk’s perpetrator’s defense: “The night of the event, Murat Yücel told me that there were girls at home and invited me. When I saw that there were no girls at the house, he said “Am I not a girl, what don’t I have that a girl has?” and locked the door. He offered intercourse. I accepted. Then he said “It’s my turn” and I lost it.”
 Opuz v. Turkey, 09/06/2009, App. Nr: 33401/02, §192, 200.
 Opuz v. Turkey, §183.