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 (The Rights Violations Against LGBT People: Selected Case Analyses.) 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
Action for annulment of the administrative act with a stay motion at the Administrative Court and implementation and whether these procedures have been conducted according to the law and justice.
Scope of Investigation
Küçükçekmece Public Prosecutor’s Office Investigation File No: 2012/38854 and Istanbul Eighth Administrative Court action for annulment of the administrative act with a stay motion File No: 2012/2027
Procedures of Investigation
The suspect Hürriyet Aydın, who settled in Avcılar Meis Housing Complex after the seven prior complainants, began the provocation and was joined by many people in behaviors that led to harassment, provocation, and violence towards seven clients who had been living in the complex for many years. This behavior got more violent with time and was presented to the public by some media agencies leading to events that would further provoke the public and constitute a hate crime.
The Crimes Subject to Investigation
In the last days of September 2012, complex residents Hürriyet Aydın, Turgut, and Lawyer Nusret Cem Işık and complex doorman Selim Palandöken verbally and physically assaulted trans women who were long-time complex residents. They organized walks with torches to incite the public. During these walks, they provoked invitations to lynch these trans women and the trans women were threatened to leave the complex. Even though these demonstrations took place at midnight and were against the law, the police did not intervene in the demonstrations. The hate campaign spread by the distribution of memos to local shopkeepers and they were told not to serve the trans women under any condition.
Law enforcement officials connected to the Ambarlı Research Center organized raids to search the complainants’ houses during these events and a large sum of money belonging to one of the individuals disappeared during the search. During the search, the complainants and their friends who were with them at that moment were handcuffed to each other, which is against the law. After the search, the Directorship of Ambarlı Research Center ordered the complainants to leave the housing complex within one week.
An official complaint was made against the residents of the complex for the following crimes: Turkish Penal Code’s Article 106 (Threat), Article 116 (Violation of the Immunity of Residence), Article 134 (Violation of Privacy), Article 122 (Discrimination), Article 125 (Defamation), Article 142 (Qualified Larceny), Article 151 (Damage to Property), Article 216 (Provoking People to be Rancorous and Hostile), Article 257 (Misconduct in Office) to be considered in tandem with the articles that mandate the protection of the Right to Life by the Constitution’s Article 17 and European Convention on Human Rights Article 2.
1. Complainant U.B.’s statement
On 18.10.2012, complainant U.B. was present at the Küçükçekmece Public Prosecutor’s Office with her lawyer to give her statement. The complainant stated that she had been living alone in the Meis Housing Complex for the last 8 years and that she was mostly away from the city because she works as a singer. From 01.10.2012 on, complex resident, [a previous doorman, who bought a flat in the complex, and who was elected as the administrator, who now works again as the doorman] Selim Palandöken, Hürriyet Aydın, and Nusret Cem Işık, who moved to the complex 7-8 months prior and was elected as the administrator, along with “Turgut” or “Tuğrul,” who resides in the neighboring housing complex, and retired soldier İsmail, organized and provoked the public. She stated that these people went from building to building, shop to shop, distributed notices, and organized demonstrations at 21:30 for 4-5 days after 01.10.2012 to protest trans identities. The crowd gathered in a nearby mosque and started demonstrating, walked towards the front side of the building complex and chanted, “No to prostitution!” “We don’t want transvestites in Avcılar,” “Come and explain to my kid what you are,” “Take these to the army,” “Creatures that you can’t tell what they are,” “One, two, where’s the third,” “Transvestites out, honor in,” “We will fight against you like we fought against the PKK,” “Shops that sell to them are dishonorable,” “Those who don’t join our demonstration are ignoble.” This crowd would also stop cars that passed by and made the people in the cars join the demonstration.
The complainant claimed that the suspect İsmail had a megaphone; a person named Nusret said, “we will eradicate your roots, the State supports us, if we must we will demolish this building and bury you in the ruins,” by the fire lit during the demonstration on 06.10.2012; law enforcement forces did not take any action. The complainant further stated that on 04.10.2012, Tuğrul, Hürriyet Aydın, a woman in a headscarf, and a man she did not know went on air on Kanal Turk TV’s “Scalpel” program and attacked trans people’s gender identities. Hürriyet Aydın announced trans woman U.Y.’s identity during the live show. On the sixth day of the demonstrations, Tuğrul /Turgut and İsmail announced on the megaphone, “We are halting demonstrations for a week, during this week they better smarten up and leave, if they do not leave, the municipality is on our side, thank God the police are on our side, they have no choice, they will either live at will or by force,” clearly threatening the trans women.
Upon the Public Prosecutor’s questioning, the complainant said that the Police Department did not protect them; the posters that contained hate speech were still hanging on the building; when they went to the police to explain the situation, the chief said, “It is their right to demonstrate, you forget them, when are you going tell me.”
2. The process after the sealing of the houses while the investigation continued
While the investigation by the Küçükçekmece Public Prosecutor’s Office continued, the apartments of trans individuals U.B., D.K., F.K. (Alev), U.Y., N.Ş., and M.Ç. were sealed by the Avcılar District Governorate’s Decision No: 2012/08 on 31.10.2012 for 3 months. The decision to seal was not announced ahead of time, and the houses were sealed on 06.11.2012 at the same hour and day of the default notice.
3. Action for annulment of the administrative act with a stay motion before the Istanbul Eighth Administrative Court
The case was brought against the defendant administration’s [Avcılar District Governorate Health Administration’s Venereal Diseases and Fight Against Prostitution Commission Presidency] Decision No: 2012/08 dated 31.10.2012.
The lawsuit petition stated that the Küçükçekmece Public Prosecutor’s Office included a criminal complaint about the events in the investigation file. On the other hand, the prostitution relations defined in the General Regulations regarding Brothels and Prostitution and the Fight Against Venereal Diseases were considered to be between a man and a woman. Therefore the lawsuit petition stated that the trans people in dispute are not within the scope of the legislation on prostitution because the legislation does not include an arrangement on gender identity. It further stated that the Venereal Diseases and Fight Against Prostitution Commission Presidency, which made the decision, is not a lawmaker and emphasized the inviolability of legislative prerogative.
On the other hand, the defendant administration also violated “privacy” in general and “the immunity of residence” specifically with its decision and the demonstration violated the Constitution’s 13th and 21st Articles. For these reasons, a request for action for annulment of the administrative act has been filed considering that the administrative act was put in motion by ignoring the Code of Administrative Procedure’s Article 16, which details notice and response times.
The Defense of the Defendant Administration
The Administrative Court gave the defendant administration 10 days to prepare its defense; the defendant administration gave its defense on 28.12.2012, later than the time allowed. The defendant administration states in its defense, “Avcılar Denizköşkler Meis Housing Complex Residence No: 18, 29, 73, 75, 91, 98, 102, 106, 109, and 110 were mentioned in a tip off to the Prime Ministerial Communication Center. The Public Security Branch Office assessed the situation on 25.09.2012 at around 18:00 and determined and confirmed that a transvestite with the nickname Alev provided and facilitated prostitution and marketed the other transvestite people present with Alev for money. Upon this confirmation, the search warrant for Miscellaneous Decision 2012/959 was issued by the Fifth Criminal Court of Peace on 02.10.2012, the District Governorate approved the document on 13.10.2012, and the aforementioned business places and flats where prostitution is being conducted were sealed for 3 months by a unanimous vote based on Article 95 and 104 of the General Regulations regarding Brothels and Prostitution and the Fight Against Venereal Diseases.”
Irregularities of the Istanbul Eighth Administrative Court File No: 2012/2027:
The court ignored our request for the action for annulment of the administrative act with a stay motion before the Istanbul Eighth Administrative Court. Even though the defendant administration did not submit its defense on time, the case was rejected. However, the established precedents of the Council of State show that it may be decided to take action for annulment of the administrative act in situations when the administrative act causes irrecoverable damage, when it is clearly against the law or when the defense is not made or cannot be taken. It is an established precedent that the administrative act, whose effect would be exhausted by application, can be stopped for a renewed decision after the defense is submitted. (Council of State Fourth Chamber 2013/181)
Even if we consider for a moment that the defendant administration had given its defense on time, the investigation after the tip off to the Prime Ministerial Communication Center, as asserted in the defense, was for one person’s house. However, 9 homes were sealed in the Meis Housing Complex based on the investigation of only one suspect and this administrative act is clearly against the law. The Administrative Court rejected the request to annul the administrative act and the stay motion on 17.01.2013. Stating that the defendant administration did not submit its defense on time, the court based its rejection, illegally, on the Code of Administrative Procedure’s Article 27. It also stated in its decision that situations when the administrative act causes irrecoverable damage and when it is clearly against the law were not present. (We will object to this decision within 7 days of the arrival of the notice of reasoned decision.)
During the case before the Administrative Court that involved the requests to annul the administrative act and the stay motion of sealing the houses against the law, the seal of 8 of the houses in the Meis Housing Complex were broken on the evening of 10.11.2012. The people whose houses were sealed and some other residents witnessed this event. The people whose houses were sealed immediately informed the Avcılar Central Police Station. Avcılar Research Center police officers determined that the seals were broken unlawfully and they claimed that the people whose houses were sealed had broken the seals. When it became clear that these people were not responsible for breaking the seals, the law enforcement officers arbitrarily gave up on taking statements and made out a simple report. At midnight on 12.11.2012, some people once again broke the seals. A suspect with the nickname Murat Karayılan gave his statement at the police station.
The Latest Situation of the Küçükçekmece Public Prosecutor’s Prosecutorial Case
The Küçükçekmece Public Prosecutor’s Office was informed of the seals broken on 10.11.2012 and 12.11.2012 and the prosecutor immediately demanded video recordings. The prosecutor asked for victim D.K.’s statement. The plaintiff Nazlı stated, “On 06.11.2012 at around 15:00 when police from an unidentified unit came to my house and stated that there was a decision by the District Governorate Fight Against Prostitution Commission to seal my house for 3 months; they removed me from the house and sealed the house.” She continued, “On 10.11.2012 at around 20:00, my friend Murat Güven’s cousin Serkan Neşeli saw that the seals were broken and so I called Police 155. When I saw that the other seals were also broken, I waited for the police and went to the Avcılar Central Police Station. My statement was not taken and only a report was filed.” The next day all the houses were resealed but the seals were broken again in the morning hours of 12.11.2012. She called Police 155 again but said that she will not go to the police station and that her statement can be taken at the location but the police did not take the statements and left without resealing the houses. She stated that Murat Karayılan, who is being protected by resident Hürriyet Aydın, broke the seals to make the lives of the trans individuals more difficult. She stated that she saw Murat Karayılan by her flat and that she wanted the video recordings between 06.11.2012 and 14.11.2012 from the camera at her house to be investigated.
The Küçükçekmece Public Prosecutor’s Office issued a directive to the Avcılar Police Center to investigate the video recordings from 06.11.2012 to 14.11.2012 and to reseal the houses. This directive was delivered by hand to the station. Two police cars went to the Meis Housing Complex and opened the victim Nazlı’s house with a locksmith in order to retrieve the video recordings. However, because of the house’s sealing, the electricity was turned off and there were no camera recordings. We requested that the recordings be taken just in case. The prosecutor sent the recordings and the file to an expert.
F.K.’s (Alev’s) statement after assault and threats on Sunday 17.02.2013:
On Sunday 17.02.2013 in the evening, F.K. (Alev) was beaten, insulted, and threatened by the suspects Tuğrul Selçuk and İsmail as she was going to her home in the Meis Housing Complex. She went to the Avcılar Police Center with her lawyer and her witness Michelle Demishevich. F.K. (Alev) stated that her house was sealed for 3 months and the seal had been removed 10 days prior and their residence permitted. On 17.02.2013 at 17:30, she was coming home from shopping. As she was parking her car, Tuğrul Selçuk and İsmail [who has a walking disability] approached her car. She parked and was entering her home when Tuğrul said, “One minute, can you look?” She went to them and said, “Hello, how are you?” Tuğrul said, “Are you still living here, we got your houses sealed but you are back, you should sell your house and move immediately, we do not want to see you here. İsmail saw you leave your house as a transvestite.” She told them that she did not have any other place to live in, that she was not a prostitute, and then she did not bother anyway. Tuğrul said, “That’s not my concern, I do not want a transvestite in the building.” She responded by saying, “we were lynched, our houses were sealed, I had to live in random places for 3 months and our lawyers and judges are looking at the case.” Tuğrul then exited his car and said, “I’ll fk the p*****s of your lawyers and the judges and fk your p***y as well.” He then attacked her, held her ears and then hit her head on the wall, tore her clothes, head butted her and broke her glasses, pulled her by her hair towards his car, took an object from the ground to hit her with. She said, “Ok brother, I will leave.” He then pushed F.K. (Alev) to his vehicle and said “Don’t make me cut your throat, I am watching you and your friends every day, leave the house immediately.” She stated that Tuğrul was intoxicated.
She ran away from the suspect, went to the police, and when the law enforcement officers came to Tuğrul’s residence, he walked towards F.K. (Alev) and said, “Are you a man, I will tell them you swore at me.” F.K. (Alev) stated that she would press charges at the police station.
Conclusions on the Investigation and Observations
When we analyze the Küçükçekmece Public Prosecutor’s Office’s case, we see that there are three separate crimes and three separate prosecutions. Regarding the Police Department, there are three main prosecution files on misconduct in office, discrimination, and the cancellation of the seal procedure. The entire file has been sent to the expert. However, it is interesting that the public prosecution finds one plaintiff’s statement (U.B.) to be sufficient. On the other hand, the fact that the public prosecution gave importance to the fact that the seals were broken several times by unknown people is also significant.
Our complaint on the issue of the seals being broken during the night by unknown people is substantiated with D.K.’s statement as a plaintiff.
The assault, insult, and threat that F.K. (Alev) experienced on 17.02.2013 are the continuation of the complaint. Because the parties are the same in our prior criminal complaint, we have added this victim’s statement to the case file.
The suspects’ testimonies and the defendant administrations’ defenses, if they have been taken, have not been seen because the file is at the expert.
We have appealed the Istanbul Administrative Court’s rejection of our request to annul the administrative act of sealing the houses and the stay motion. The reasoned decision states that in order for “the stay motion of an administrative act” to be accepted, the conditions of irrecoverable damage and impossible conditions must exist together. The court ignored that the acts were pre-meditated and consciously hurtful, extended the decision time regarding the request and therefore showed its goal for passive/accessory judiciousness. The judges ignored the lawyers’ demands and once again proved that ruling in favor of the administration is customary.
The principle reason for the slow processing of both case files and the negative results is that the victims are trans individuals. The judiciary’s homophobic and transphobic attitude continues to reduce trans people to nothingness and to provoke hatred and crime.
The situation of the so-called ban on discrimination in the Turkish Penal Code is clear, especially in the cases of LGBTs. Therefore, demands for constitutional equality must be fulfilled and the legislation on hate crimes must include LGBT people. Furthermore, the ban on discrimination in all legislations must create significant punishments that have a deterring effect as soon as possible.
Lawyer Rozerin Seda KİP
PROSTITUTION IS THE EXCUSE, DISCRIMINATION RULES: THE EXAMPLE OF THE MEIS HOUSING COMPLEX
The Republic of Turkey leads a policy of harassment regarding lesbian, gay, bisexual, and trans (LGBT) people through violence, pressure, unjust punishment, and guilt even when they are the victims. This policy of intimidation is directed at people who choose not to or who cannot hide their identities. The most visible targets of the intimidation policy are trans women.
Trans women cannot continue their education because of humiliation, exclusion, and pressure. They also have limited job opportunities because of discrimination. Therefore, sex work becomes the only path to continue their existence. The facts that regulations regarding pre-op trans individuals in brothels are not drafted and that a limited number of post-op trans individuals are allowed to work in brothels mean that the majority of trans women have to work on the streets or in their homes where their lives are in danger. Because sex work is not included as a branch of employment and the necessary regulations are not applied, individuals are targets to the State’s arbitrary practices and the assaults of customers and others. Despite that fact that prostitution is not illegal, prostitution is considered to be immoral by the majority of society and therefore sex workers are considered to be criminal elements. When trans individuals are the subjects, the State visibly adopts a policy of “prostitution is the excuse, discrimination rules.”
The events at the Avcılar Meis Housing Complex are just one example of the violence and pressure trans women in Turkey undergo. An analysis of this example is important to determine the problems and the solutions to trans victimization.
In September 2012, a group of people gathered in front of the Meis Housing Complex to protest prostitution within the complex. The crowd of women, men, and children carried banners and torches and the demonstrations lasted for weeks. The police did not prevent the demonstrations by claiming that they were using their democratic right to assemble. However, what was presented as a democratic demand turned into threats against trans residents and the announcements of their identities to turned them into targets.
The demonstrations against prostitution in the Meis Housing Complex quickly turned into transphobic discourses like “We do not want trans people here” and hate crimes. After the demonstrations, the fact that the houses of trans women who were not engaged in sex work were sealed and the houses of sex workers who are biologically women were not sealed show that the transphobic and discriminatory attitude were supported by the State. The example of Meis reveals once again that violations of the right to housing suggest violations of the right to life. Housing complex resident Seda was found assaulted on 8 March 2013 near Meis and she passed away 2 days later.
LGBT Associations and lawyers continuously point to the obvious rights violations and practices that cannot be considered legal. It is important to understand the difficulties trans individuals faced during the 3-month period when their houses were sealed. The facts that a result for the request to annul the administrative act of sealing the houses took longer than the 3-month period, that the people whose houses were sealed were not given alternative housing during this period, that the people who wanted to move out could not even enter their houses to gather their belongings show that their lives were turned upside down for 3 months. Rather than incentivizing the search for a new order in their lives, the administrative sanctions went beyond their goals and created new rights violations. No regulations regarding “ending” sex work were established and individuals who work as sex workers naturally went back to their previous lives once the seals were removed. This is proof that the State’s practices are not concerned with sex work but rather with discrimination.
Trans people are in a never-ending vicious cycle because state institutions fail to fulfill their responsibilities and violence from individuals continues. The urgent need for the State to take solid steps towards preventing violations of trans people’s rights is obvious. The inclusion of the terms sexual orientation and gender identity in the new constitution and the State’s recognition of LGBT existence and legal equality are significant. The inclusion of these terms in the constitution will prevent the unjust fines trans women are exposed to through the Law of Misdemeanors. Furthermore, the ambiguous concepts of “general morality” and “public order” in the 1982 Constitution, which are used against LGBT individuals as a legal weapon, should not be included in the new constitution. The Legislation on Hate Crimes must be put in motion immediately to prevent violence from individuals. Hate crimes must be clearly defined and activities to create awareness must be started. Furthermore, trans people’s possibilities of employment must be broadened to ensure that they have equal opportunities. Safe working zones for trans people who choose to work as sex workers must be created. It is our hope that the State will realize its responsibilities towards its citizens before more lives are taken and more rights are violated.
Restriction of Fundamental Rights and Freedoms ARTICLE 13. (As amended on October 17, 2001) Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be in conflict with the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular Republic and the principle of proportionality.
Inviolability of the Domicile ARTICLE 21. (As amended on October 17, 2001) The domicile of an individual shall not be violated. Unless there exists a decision duly passed by a judge on one or several of the grounds of national security, public order, prevention of crime commitment, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorised by law in cases where delay is prejudicial, again on the above-mentioned grounds, no domicile may be entered or searched or the property therein seized. The decision of the authorised agency shall be submitted for the approval of the judge having jurisdiction within 24 hours. The judge shall announce his decision within 48 hours from the time of seizure; otherwise, seizure shall automatically be lifted.
 General Regulations regarding Brothels and Prostitution and the Fight Against Venereal Diseases
BROTHELS WITHOUT PERMITS
ARTICLE 95: The morality police conduct an initial investigation in houses where secret prostitution is allegedly being facilitated. When secret prostitution is proven by evidence, the chief police present the report and the secret investigation report to the commission. The commission applies protocol according to Article 104 to these places.
ARTICLE 104: The commission seals places where secret prostitution without permit is evidenced based on Article 95 and 96 for maximum three months.
 For a short analysis of the violence trans women experienced from individuals and from state organs, see: http://www.turkishpolicy.com/dosyalar/files/Vol_11-no_4_Cakmaktr.pdf
 See press release by LGBT organizations on Seda’s death: http://www.spod.org.tr/turkce/basin-aciklamasi-biz-bu-oyunu-gorduk-seyirci-kalmayacagiz/