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:
The stages of the investigation and whether these stages have been conducted according to the law and justice.
Scope of Investigation:
Istanbul Governorship Human Rights Commission Presidency investigation and Bakırköy Public Prosecutor’s Office Investigation No: 2011/6553.
Summary of the Event Before Investigation:
S.Ç. applied for a job at an institution named Media Monitoring Center and was called in for an interview by the responsible human resources department.
When the interview was completed, S.Ç. was told that he had all the necessary qualifications for the position. The authorized person at the human resources department representing the company congratulated him and gave him the list of necessary documents for employment.
While handing over the list, the authorized person asked S.Ç. why he had been exempted from his military service and S.Ç. told him that his sexual orientation exempted him.
The following day, the same person called him and told him that one of the managers of the company, Ms. Sevil, thought S.Ç.’s sexual orientation would cause problems among employees and therefore had to cancel his recruitment.
Istanbul Governorship Human Rights Commission Presidency Investigation:
S.Ç. applied to the Prime Ministerial Human Rights Presidency for the determination of rights violations regarding the cancellation of his recruitment by the company’s managers based on his sexual orientation. S.Ç. thought that this cancellation violated the European Convention on Human Rights Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination), as well as the Turkish Penal Code’s Article 112 on discrimination.
The Prime Ministerial Human Rights Presidency sent S.Ç.’s application to the Istanbul Governorship Human Rights Commission Presidency on 01.02.2011 with Document No: 242 for investigation
The Istanbul Governorship Human Rights Commission Presidency asked the company that allegedly committed the crime of discrimination to submit a written defense to constitute the basis of the investigation. The Media Monitoring Center submitted the defense on 25.04.2011 and stated that the company’s analysis department had been searching for an employee for the position of “analysis editor.” However, the administration decided to integrate the Analysis Department and the Press Department and therefore their employment needs changed and all applicants to the position were rejected.
Istanbul Governorship Human Rights Commission Presidency sent its unanimous decision, Document No: B.05.4.VLK.0.34.03.01/521.05/25639, to S.Ç., which stated that though the Media Monitoring Center submitted a defense arguing that the position was cancelled through an administrative decision, the real reason for the cancellation of his recruitment was the complainant’s sexual orientation. The company’s procedure was prejudiced and constituted a strengthening of these prejudices and therefore violated the ECHR’s Article 14 by discriminating against him.
The Istanbul Governorship Human Rights Commission Presidency sent the company that committed discrimination and violated international agreements and the penal code a warning, which stated that they should avoid attitudes and behaviors that would violate human rights and to act sensitively and diligently.
Bakırköy Public Prosecutor’s Office Investigation No: 2011/6553:
On 30.06.2013, S.Ç. submitted his complaint petition to the Bakırköy Public Prosecutor’s Office and included the Istanbul Governorship Human Rights Commission Presidency’s 03.06.2013 decision that they had detected the suspect’s practices, which violated the ban on discrimination.
Proceedings regarding suspect Yılmaz Kabaoğlu:
The prosecutor’s office took Yılmaz Kabaoğlu’s, one of the partners of the company, statement as a suspect. Kabaoğlu stated that he works as the production manager and human resources manager at the Media Monitoring Center, that he evaluates applicant interviews and employs qualified applicants. However, he also stated that he did not remember the complainant and such a conversation among them did not occur, that the complainant’s claim that he was not employed because of his sexual orientation was not true, and no person called Sevil worked in the company. He did not accept the allegations.
Bakırköy Public Prosecutor’s Office’s decision of non-prosecution:
The investigation conducted by the Bakırköy Public Prosecutor’s Office under Investigation No: 2011/6553 resulted in Decision No: 2012/20112 on 04.06.2012 that a public prosecution was not necessary.
The reasoning for this decision was that there was not enough reliable evidence to bring the suspect to trial.
Objection to the decision of non-prosecution:
Though an objection to the decision of non-prosecution was filed at the Istanbul Seventh Higher Court of Aggravated Crimes on 05.07.2012, the Court rejected the objection on 17.08.2012 Decision No: 2012/886 and stated that they did not detect inappropriateness and that the decision was in line with the law and practice.
Conclusions on the Investigation and Observations
The first striking aspect of the file at the Bakırköy Public Prosecutor’s Office is that the investigation was not complete. The prosecutor’s office found it sufficient to take the testimony of only one company partner and did not take the statements of the other four.
The fact that the prosecutor’s office did not apply to the Social Security Administration (SGK) to get the list and positions of company employees or take their statements means that the prosecutor’s office led an incomplete investigation.
The SGK keeps logs of employee positions by categorizing them under occupation codes. The prosecutor’s request to the SGK would reveal not only the names of the company’s employees but also their positions.
The prosecutor’s office should have applied to the SGK for employee and partner names once the suspect stated, “no person called Sevil worked in the company.”
Furthermore, the prosecutor’s office should have applied to the relevant GSM operator to determine the owner of the number that called the complainant and told him that his recruitment was cancelled. The investigation should have included that person’s statement.
Though it was included in the file, the prosecutor’s office ignored the Istanbul Governorship Human Rights Commission Presidency’s observations on discrimination. Furthermore, they ignored the inconsistency between the suspect’s statements to the Istanbul Governorship Human Rights Commission Presidency and to the Prosecutor’s Office.
Even though the Prosecutor’s Office violated practice and law and made a decision of non-prosecution without adequate investigation and evaluation, the Istanbul Seventh Higher Court of Aggravated Crimes rejected the objection to the decision. The Court ignored the Prosecutor’s inadequate investigation and the possibility of gaining more information through warrants and statements. The Court did not see the lack of investigation as an inadequacy and sufficed with rejecting the objection to the decision of non-prosecution.
Another fault is the fact that the file was not sent to an expert witness before the decision of non-prosecution.
S.Ç. made his first application to the Prime Ministerial Human Rights Presidency on 01.02.2011. The investigation, the decision of non-prosecution, and the rejection of the objection concluded on 17.08.2012. It is interesting that all of this took one and a half years even though the investigation was inadequate. As stated above, the statement of only one company partner was taken, yet the period of investigation lasted over a year. This should be evaluated as a violation of the right to fair trial.
It is a known fact that trials take a long time in Turkey and a large number of the applications to the European Court of Human Rights against Turkey contain the violation of Article 6 (right to a fair trial) of the European Convention on Human Rights.
The facts that S.Ç.’s investigation was inadequate and yet took a year and half points on one hand to the problems of Turkey’s penal system; on the other hand, it points to the prosecutor’s attitude towards discrimination and homophobia.
The ban on discrimination in the Turkish Penal Code has not taken root in practice. The prejudices and homophobic attitudes of judges and prosecutors lead to the non-prosecution of complaints.
Yet we urgently need a standard of protection against discrimination in national regulations, the application of the ban on discrimination, and regulations and mechanisms that increase and incentivize equal treatment.
Even though the ban on discrimination is regulated by national legislation, there are no mechanisms to ensure its application and monitor its practice.
The Constitution should include the terms sexual orientation and gender identity, guarantee the immunity of privacy, and thereby not force anyone to reveal their sexual orientation and gender identity against their will. Discrimination based on sexual orientation should be included in the ban on discrimination in employment within employment law and other relevant statutes.
When the crime and its punishment are analyzed, it is clear that the Penal Code’s regulations on the crime of discrimination are not effective or deterring. Effective investigation and the deterrent effect of punishments must be considered in future regulations.
Lawyer Özlem AYATA