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 the investigation and prosecution and whether these procedures have been conducted according to law and justice.
Scope of Investigation
Istanbul Sixth Higher Criminal Court for Aggravated Crimes File 2006/172 E, 2007/26 K.
Procedures of Investigation
Baki Koşar was found dead on 24.02.2006 in his house at Şişli Bozkurt Mah. Eşref Efendi Sok. No: 84/1.
Proceedings regarding suspect Serhat Süs:
Serhat Süs was taken into custody as a murder suspect on 25.02.2006 after his fingerprints were discovered at the crime scene. The same day, his time in custody was extended by 1 day on the orders of the Şişli Public Prosecutor.
The same day, the Şişli Second Criminal Court of Peace ruled to take blood samples from the suspect for criminal investigation. Again on the same day, the Şişli Second Criminal Court of Peace allowed a search of the suspect’s house.
On 25.02.2006, Serhat Süs’s friend Atilla Uslu gave a statement to the Şişli Public Order Department. In this statement, there was no information that would indicate that the suspect Serhat Süs was prone to violence.
The suspect Serhat Süs used his right to remain silent during his statement to the Şişli Public Order Department on 26.02.2006.
When the suspect Serhat Süs gave his statement to the Şişli Public Prosecutor on 27.02.2006, he admitted to living with the victim but denied the murder allegation. The Şişli Public Prosecutor sent Serhat Süs to the Court with the request for his arrest on the same day.
On 27.02.2006, the Şişli First Criminal Court of Peace interrogated Serhat Süs and the suspect denied the allegations. The Court ordered his arrest. On
07.03.2006 the Şişli Twelfth Criminal Court of First Instance rejected Serhat Süs’s lawyer’s objection to the arrest.
On 27.03.2006, upon the one-month completion of suspect Serhat Süs’s detention and the review of the arrest, the Şişli First Criminal Court of Peace decided that the arrest would continue.
The other suspect, Serhat Bağlan, admitted to the crime on 31.03.2006 at the Public Order Department- Homicide Department and Serhat Süs was released on 01.04.2006 by the Şişli Criminal Court Judge on Duty.
The “Expert Report” submitted by the Criminal Police Laboratory of the General Directorship of Security on 05.04.2006 states that there was no blood trace on the seized belongings of Serhat Süs.
The Şişli Public Prosecutor issued a “Decision of non-prosecution” on 18.06.2006 for Serhat Süs and Serhat Bağlan’s friend Emrah Arslan.
Proceedings regarding suspect Serhat Bağlan:
While inspecting the house, law enforcement officers discovered that Baki Koşar’s cell phone (0 555 455 72 47) was missing and requested the phone records from the Prosecutor’s Office since it could have been stolen by the perpetrator(s). The Prosecutor’s Office informed Avea GSM on 25.02.2006 and the GSM operator responded on 27.02.2006.
The investigation revealed that the SIM card associated with phone number 0 535 777 67 91 belonging to Serhat Bağlan was inserted to Baki Koşar’s cell phone on 25.02.2006 and used for an 18 second call. Upon this discovery, on 04.03.2006 the Şişli First Criminal Court of Peace ordered Serhat Bağlan’s phone to be monitored, recorded, and traced for three months starting on 04.03.2006 in accordance with Article 135 of the Code of Criminal Procedure.
Upon using Baki Koşar’s phone by inserting his own card, Serhat Bağlan and his friend Emrah Arslan were taken into custody in Milas, Muğla on 30.03.2006. Their colleague İbrahim Canatan, who was called in to make a statement, stated his knowledge of Serhat Bağlan and Emrah Arslan’s same-sex relations.
On 31.03.2006, Serhat Bağlan and Emrah Arslan’s time in custody was extended by 1 day. The same day, the Şişli First Criminal Court of Peace ruled to take blood samples from the two suspects for criminal investigation.
On 31.03.2006, Serhat Bağlan gave his statement at the Public Order Department- Homicide Department as a suspect. He stated that he met Baki Koşar on the 15th or 16th of February in an online chat room, chatted a couple of times, and agreed to meet at Baki’s house on 18.02.2006. When they met, Baki Koşar told him he wrote for several newspapers and had worked as a reporter for the TV channel NTV for a bit. They then had breakfast and Baki told him that the intercourse would be two-sided. The suspect told him he could not accept this but the door would not open when he tried to leave. He stated that Baki told him he could not leave this house anymore because he knew all of Baki’s secrets. Upon this he stated that Baki Koşar went to the kitchen and came back with a knife in his hand and waved it towards him. The suspect Serhat Bağlan stated that he took the knife from Baki but, as he was heading to the living room, Baki put his right hand around his neck and started to strangle him, and he stabbed Baki. They then struggled and Baki took the knife from him several times to try to stab him but the suspect prevented it. During this time, the suspect incurred a wound in his hand, took the knife, and stabbed and killed Baki, though he cannot remember how many times he stabbed him. He thought the voice recorder might have recorded the sounds, that the cell phone might incriminate him because they had called each other before meeting, and therefore he stole them.
After his statement, Serhat Bağlan was arrested by the Şişli Criminal Court of Peace on Duty on 01.04.2006.
The “Expert Report” submitted by the Criminal Police Laboratory of the General Directorship of Security on 05.04.2006 states that the blood samples from the scene matched Serhat Bağlan’s DNA.
The victim’s family’s lawyer Gülşen Tunç petitioned the Şişli Public Prosecutor’s Office on 25.04.2006 to demand the necessary investigation.
In an indictment on 06.07.2006, the Istanbul Public Prosecutor’s Office demanded a public case against the suspect Serhat Bağlan. The indictment demanded that Serhat Bağlan be punished based on the crime “murder with the intention of concealing a crime or facilitating the commission of an offense, or destroying the evidence or avoiding capture” and “looting property.”
Procedures of the Prosecution
Istanbul Sixth Higher Court of Aggravated Crimes accepted the indictment on 11.07.2006 and opened a public case against Serhat Bağlan. It was decided that the trial would start on 31.08.2006.
On 31.08.2006, on behalf of Baki Koşar’s family, lawyer Gülşen Tunç submitted a petition to the Istanbul Sixth Higher Court of Aggravated Crimes requesting to join the pending case as a joint plaintiff.
In the 1st hearing on 31.08.2006, the defendant Serhat Bağlan stated that the victim Baki Koşar asked him to be the passive party, that he was attacked with a knife when he refused, and that he took the knife and stabbed the victim. The joint plaintiff’s counsel requested witness testimonies to reveal that the victim was not the active partner. The hearing was postponed to 01.11.2006.
In the 2nd hearing on 01.11.2006, the joint plaintiff’s counsel presented a petition to claim that the records of this previous hearing were incomplete and differed from the proceedings. She stated that the victim did not hide his sexual orientation, argued that the defendant’s statement of the victim worrying for his career were meant to help him evade punishment, and that the victim’s last partner Serhat Süs should be called to testify in order to clarify the active-passive situation. The hearing was postponed to 08.12.2006.
In the 3rd hearing on 08.12.2006, the victim’s friend Reyhan Yıldız testified as a witness and stated that the victim never hid his sexual orientation. The other witness Serhat Süs stated that he was always the active one and that the victim Baki Koşar never requested to be active. The hearing was postponed to 30.01.2007.
In the 4th hearing on 30.01.2007, the public prosecutor declared his view on the matter. The prosecutor accepted the defendant’s statements as true and demanded that he be punished for murder with unjust provocation and for theft but with a low value of goods reduction. The hearing was postponed to 27.02.2007.
In the 5th hearing on 27.02.2007, the joint plaintiff’s counsel read out a three-page petition, which argued that the unjust provocation reduction should not be applied. The defendant’s counsel repeated the petition of 13.02.2007 argued self-defense and requested the defendant’s acquittal.
The court announced its decision after the hearing. The defendant Serhat Bağlan was sentenced to life in prison for the murder of Baki Koşar but his punishment was reduced to 18 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 15 years in prison. The court also sentenced the defendant 1 year 5 months and 15 days in prison for theft.
On 01.03.2007, the joint plaintiff’s counsel appealed this decision and requested an inquiry with a court hearing.
On 09.04.2008, lawyer Onur Kaleli informed the Supreme Court of Appeals that the joint plaintiff’s counsel had gone abroad to study language and that he would now serve in the case as the joint plaintiff’s counsel.
On 18.07.2011, the Supreme Court of Appeals First Penal Chamber approved defendant Serhat Bağlan’s 15-year prison sentence and quashed the punishment for theft. The First Penal Chamber of Supreme Court of Appeals also rejected the joint plaintiff’s counsel’s request for an inquiry with a court hearing on the basis that the plaintiff did not possess any such right.
Conclusions on the Investigation and Observations
- The context of the file reveals that the joint plaintiffs did not effectively dispel the defendant’s defense on active-passive. It is interesting that the joint plaintiff’s case did not include any arguments about the defendant being motivated by hate. Even though hate crimes are not recognized as crimes in our penal code and are not considered as aggravating circumstances, we believe that if the joint plaintiff had informed the court board on “hate crimes,” the reduction based on “unjust provocation” could have been avoided. Therefore, the amendment of Article 82 of the Turkish Penal Code No: 5237 to include the expression “killed due to perpetrator’s bias and hate based on the person’s race, language, religion, gender and sexual orientation” would ensure that defendants in murder cases, like the case of Baki Koşar, get “aggravated life in prison.”
- The Court’s 27.02.2007 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 Supreme Court of Appeals First Penal Chamber’s 18.07.2011 rejection of the joint plaintiff’s counsel’s 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.
- Because our scope of investigation of the Baki Koşar file is limited to the file’s content, we do not know whether effective campaigns to raise public awareness against the Court’s unjust provocation application were conducted during the days of the trial. The effectiveness of such public campaigns in such cases is beyond doubt.
- Lastly, the convict Serhat Bağlan 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 file does not contain information on the last status of Serhat Bağlan’s sentence for theft; we can assume that he may be released on probation on 30.03.2015 regarding his 15-year prison sentence. (This is a prediction and is not certain; more accurate information can be gained from the convict’s log.)
- This situation hinders the deterrent effect of punishments and points to the fact that the system does not protect victims’ rights when the policies of the penal system are taken into account; a perpetrator who ends a person’s right to life gets to walk out of prison on probation after 6-7 years in detention.
Lawyer Erkan ŞENSES
AN ANALYSIS OF THE LAW’S ROLE IN THE DISCRIMINATION AGAINST LGBT PEOPLE: THE BAKİ KOŞAR CASE
Baki Koşar, a journalist, author, and TV producer, was found dead in his house on 24 February 2006. There were tens of stab wounds on his body. The investigation at his house revealed that his cell phone was missing. Call logs from the phone led police to the suspect Serhat Bağlan. The suspect Serhat Bağlan gave the following statement at the Precinct: he met Baki Koşar in an online chat room, they met at Koşar’s house for sexual intercourse, he tried to leave the house when Koşar asked him to be passive, Koşar tried to prevent him from leaving with a knife, they struggled and he took the knife from Koşar and stabbed Koşar numerous times, though he could not remember the count. The prosecutor’s indictment demanded that Serhat Bağlan be punished for “murder with the intention of concealing a crime or facilitating the commission of an offense, or destroying the evidence or avoiding capture” and “looting property.” However, the public prosecutor accepted the defendant’s defense during the prosecution and demanded that Bağlan be punished for the crimes of “murder under unjust provocation” and “theft.” The joint plaintiff’s counsel tried to prove that Koşar was not the active party in intercourse through witness testimonies and demanded that unjust provocation reduction not be applied. The defense’s counsel demanded the defendant’s acquittal on the basis of self-defense. This story ends with the acknowledgment of the murder but the reduction of life in prison to 15 years due to unjust provocation and good behavior reductions and the approval of the Supreme Court of Appeals First Penal Chamber. The report above also clearly shows that the court did not use any substantial reasoning in the application of unjust provocation in favor of the defendant. The report also reveals that the convict Serhat Bağlan may be released on probation in March 2015.
The institution of “unjust provocation” as set out by Article 29 of the Turkish Penal Code works to reduce the severity of penalties. We constantly come across “unjust provocation” in murders of women, homosexuals, and trans people. Groups who are already discriminated against by society because of their gender, sexual orientation, and gender identity are left unprotected by the state against violations of the right to life. This constancy in legal practices leads to a specific and inevitable perception; killing a woman, a homosexual or a trans person automatically leads to penalty reductions. This attitude in legal practices means the application, and constant reproduction, of a certain mentality.
What does this mean about a country’s legal politics?
The primary role of penal laws in a legal system that is based on democracy and human rights is ensuring the protection of fundamental individual rights through the penal system’s general and specific preventive attributes. Of course penal law is not the only means for this protection. On the contrary, the high amount of work required from penal institutions suggests a failure of the state’s other institutions in their obligation to ensure these rights. Within the legal framework, the following questions are really about the state’s legal politics and political values: what acts constitute a crime, which punishments are stipulated for which crimes, which acts constitute aggravating or reductive causes, how is the application of the law shaped? A country’s penal legislation and legal practice says lots about that country.
A critical evaluation of law reveals the law’s bias. In a legal system that is based on inequality, the emphasis on equality serves to mask the system’s role in the reproduction of the inequality bred by power relations in society through the law’s false claim of objectivity; everyone is equal, but some are more equal than others. The process of self-criticism in human rights law has played, and continues to play, a crucial role in establishing the effect of bias in law and has initiated steps towards transforming the law to everyone’s benefit.
Exposing the law’s bias plays a significant role in legal activism and the legal struggle of individuals facing rights violations and discrimination because of their gender, sexual orientation, and gender identity. The pursuit of the application of “unjust provocation” reductions, its analysis, and critique are solid steps in this exposure. Organizations of women and LGBT are taking these steps.
While hate-motivated killings would be cause for aggravating penalties in many countries, our legal system rewards them through unjust provocation reductions. The case of Baki Koşar is an example of this. The application of unjust provocation and the way it is applied reveals the role law plays in discrimination against LGBT people. This mentality is: killing a person is bad but killing some people is not as bad [as killing others].
Returning to the Baki Koşar file, we can draw the following assertions:
- The victim Baki Koşar was gay and was killed because of his homosexuality.
- The perpetrator Serhat Bağlan went to Koşar’s house to engage in sexual intercourse and killed him by stabbing him. The basis of his defense is the claim that “he asked me to be passive.”
- While the court did not heed the defense’s self-defense argument, it applied the unjust provocation reduction by accepting the defendant’s unsubstantiated testimony.
- The joint plaintiff’s counsel had to try to prove that Baki Koşar was not the active party in intercourse in order to try to prevent the application of unjust provocation. This can be thought of as an obligation caused by the legal system’s bias.
- The court did not provide a solid reasoning for the application of unjust provocation.
- The perpetrator inflicted Baki Koşar with tens of stab wounds in order to kill him.
To understand what went wrong in the court proceedings, we must go back to the technicalities of penal law and analyze the conditions of unjust provocation.
The unjust provocation reductions can be applied to any crime if the conditions set out by Article 29 of the Turkish Penal Code are fulfilled. These conditions are:
- There must be an act that constitutes provocation.
- This act that constitutes provocation must be an “unjust act,” meaning an act that is not protected by law or is against the law. (Therefore, acts that are against morals, traditions, etiquette, and courtesy are not unjust unless they clash with the law.)
- The unjust act must induce the feeling of grievous anger or violence in the perpetrator and the crime must be committed with these feelings. Therefore, the unjust act must be of a serious nature that would induce these feelings in an average person. On the other hand, the nature and character of the crime must be compatible with the grievous anger or violence that the unjust act caused.
- There must be a causal connection between the crime committed and the unjust act. (If the defendant’s crime is committed for a reason other than the grievous anger or violence caused by the unjust act, then it is not possible to speak of a causal relation between the two acts.)
Unless all these conditions are present, the unjust provocation reduction cannot be applied.
This question comes to mind: when two adults meet with the purpose of sexual intercourse, does one adult’s offer of homosexual intercourse to the other constitute an act that contains provocation? Even if it was accepted as such, is the offer of sexual intercourse to an adult an unjust act that is against the law? In light of the event’s material facts, could such a proposal cause grievous anger or violence? Even if it is accepted as such, what kind of proportional relation is there between the feelings that the proposal induced and stabbing someone tens of times and killing him? Can the victim’s action, that cannot even be considered unjust, cause feelings of anger that lead to such a brutal murder? Or can we talk about hate-motivation within the framework of “hate crimes?”
It is clear from the report of the Baki Koşar file that the Court ruled without asking any of these questions or without discussing the acts’ legal characteristics. The Court applied the statute of unjust provocation even though there was no evidence of what ensued between the perpetrator and the victim other than the defendant’s testimony. The Court did not even discuss whether the conditions of unjust provocation were fulfilled within the framework of the defendant’s testimony. Even if the defendant’s testimony was considered enough to be material facts, it is clear that “asking one to be passive in sexual intercourse between two consenting adults” is not an act that would fulfill all the conditions of unjust provocation.
In this situation, one must think that the murder may have been committed with the motivation of hate. Unfortunately, despite active campaigns, the concept of “hate crime” is not included in the Turkish Penal Law. Furthermore, acts that are considered within the concept of hate crimes are rewarded with “unjust provocation” reductions. This means “the victim or victims were targets of a crime due to fundamental and unchangeable characteristics like race, ethnicity, nationality, language, color, sex, sexual orientation, gender identity, age, physical and mental disabilities,” and that the crimes “breed results that deeply affect not only the victim but also the group the victim is identified with.” This means that a strengthening of social prejudice and discrimination by the state is at the roots of fundamental rights violations, especially the right of life of individuals belonging to these groups.
The institution of unjust provocation, that is generally open to criticism in its arrangement in Turkey, works to the advantage of perpetrators even in this environment of criticism towards its application. Even though the state has the positive obligation to eradicate discrimination and rights violations, the fact that it stands against the victim shows the state’s involvement in reproducing prejudice and discrimination through law. People grow up with the values and prejudices of a society filled with discrimination against certain groups and society accepts, by implication, that individuals belonging to these groups may induce feelings that would provoke a person to commit a crime by just purely existing. Therefore, perpetrators take advantage of unjust provocation reductions. This also means that the relevant discrimination is, in practice, under legal protection.
In every situation where legal regulation and its application reward discriminatory mentalities and acts, the state commits discrimination itself. The application of unjust provocation in the Baki Koşar case leads to the inevitable conclusion that the state is an accomplice to those who murder gay and trans people.
Assistant Professor Reyda ERGÜN
 Hate crimes are often violent crimes that target a person or a group based on grounds that may be motivated by bias regarding race, language, religion, gender and sexual orientation. If the crime is not a singular event and is continuous, the perpetrators are called hate groups. Laws promulgated with the aim to prevent these crimes and to punish perpetrators are called hate laws. (http://tr.wikipedia.org/wiki/Nefret_suçu)
 The following sources on unjust provocation have been consulted: Zeynep T. Kangal, “Türk Ceza Hukukunda Haksız Tahrik,” (“Unjust Provocation in Turkish Penal Law,”) EÜHFD, C. XIV, S. 3-4 (2010); Elif Ceylan Özsoy, “Eşcinsel İlişki Teklif Etmek Haksız Bir Fiil Midir?” (“Is Proposing Same-Sex Intercourse an Unjust Act?”), Bianet, http://bianet.org/biamag/bianet/113198-escinsel-iliski-teklif-etmek-haksiz-bir-fiil-midir
 The Hate Crime Legislation Campaing Platform, Hate Crimes Law Draft,