Source: Yıldız Tar, “Constitutional Court of Turkey: Referring to gays as “perverts” is hate speech”, 17 July 2014, http://kaosgl.org/sayfa.php?id=17105
For the first time, hate speech on the ground of sexual orientation is among rulings of the Constitutional Court. The Court acknowledged that calling gays “perverts” is hate speech. The decision can be seen here in Turkish.
Attorney Sinem Hun’s application to the Constitutional Court of Turkey about a news article that appeared on the website Habervaktim.com, which involved hate speech referring both to her and to the Kaos GL Association, has come to a conclusion.
The Constitutional Court declared that the article stating, “Sinem Hun who is registered with the Ankara Bar Association and is the lawyer of the association of the perverts called Kaos GL” on Habervaktim.com is indeed hate speech on the ground of sexual orientation but ruled that it actually takes aim at the association and not at the applicant. Hereby, this is the first time hate speech on the ground of sexual orientation has been acknowledged by the Constitutional Court.
Not an assault on honor and dignity!
The Court, in order to protect the material and moral rights of Sinem Hun, decided that it is acceptable that Hun’s right to protect her honor and dignity has been violated but that her right to respect for her honor and dignity has not been broken.
The Constitutional Court supported its decision by claiming that “Unless there is a call for violence or hate speech that might damage pluralistic democracy and might even destroy it, punishment which limits individuals’ freedom should be avoided”.
As the Court investigates Habervaktim.com’s article named “Zionist Servants Again Attack with Terror” they concluded that it did not include any hate speech regarding Sinem Hun.
Hun claimed that the expression “lawyer of the perverts” is hate speech, that there is an assault on her honor and that Habervaktim.com continuously assaults gays with its articles and hate speech.
Court admitted calling people “perverts” is hate speech
The Ankara Public Prosecutor’s Office asserted that there is no room for prosecution and also added that the hate speech on the website is aimed at the Kaos GL Association, not at the attorney, Sinem Hun.
It has been acknowledged that the expression “perverts’ association” directly pointed to the association and “a specific category” of people. Thus, for the first time it has been legally confirmed that referring to LGBTI people as perverse is hate speech and makes them a target.
First time in Turkish courts: Hate speech on the ground of sexual orientation
Examining the decision of the Office of the Chief Prosecutor, the Constitutional Court admitted that hate speech regarding sexual tendencies are as serious as hate speech on the grounds of “race, ethnicity or color”. This decision is also a first in the Supreme Court cases on hate speech.
An objection from a member of the Constitutional Court
Osman Alifeyyaz Paksut, who is a member of the Constitutional Court, objected to the rejection. He said that “The applicant, having sued the website before because of their anti-Jewish and discriminatory attitudes represented in an advertisement with Hitler and insulted women, has become a target”.
“Calling people ‘perverts’ is not freedom of expression!”
Paksut argued that the expression “the lawyer of the association of the perverts called Kaos GL” cannot be evaluated under the idea of freedom of expression. He said that “It is a government’s utmost duty to prevent discrimination, exclusion and hate aimed at people with different sexual orientation”. By recalling decisions of the ECtHR, Paksut asserted that hate speech against gays should be punished by law.
Paksut added that there is an effort to damage Hun’s reputation through LGBTI people whom she willingly defends and represents. He claimed that “Hun should be protected by the law against hate speech, which she has no obligation to tolerate and endure.”
Attorney Hayriye Kara: Hate speech on the ground of sexual orientation
Att. Hayriye Kara who is a lawyer at the Kaos GL Association, also examined the court decision and claimed that “It is a very important ruling”.
“This court decision is the first time the Constitutional Court has regarded hate speech as a crime and therefore it is also the first time hate speech has been regarded as a judicial issue. As the Constitutional Court examines the issue in terms of its acceptability, they claimed that there is both judicial and punitive sanctions to the violations of the right to honor and dignity. Although the Constitutional Court stated that in order to apply to the Constitutional Court personally, all judicial paths be extinguished; they accepted an application to the criminal court as an adequate basis to take up the case. This is certainly a significant decision. The decision also clarifies that hate speech should have penal sanction. Moreover the judgment also shows the Court’s stance regarding hate speech. It is very important that the Court stands against hate speech against different sexual orientations.
“The expression takes aim at Att. Sinem Hun”
“Although the expression is accepted as hate speech, it is also claimed to be aimed only at the association, not at Att. Hun. As contrary votes also suggest, the hate speech is not only targeted to LGBTIs but also at Att. Sinem Hun. Hate speech can also take aim at LGBTI people’s families, supporters and rights defenders and such speech can be regarded as crimes committed against to these people, too. That’s why it cannot be said that ‘the lawyer of the perverse’ does not offend Att.Hun’s rights.”
What had happened?
Att. Hun sued Biota Medication and Cosmetics Laboratory and Advertising Campaign, claiming insult to women and the Jews in “Hitler of a shampoo” ad for ‘Biomen’. She argued that the advertisement insults women and the Jewish identity and insisted that the crimes of praising a criminal and insulting a group of people had been committed.
After this case was issued, Habervaktim.com published an article named “Zionist Servant Attacks with Terror”, targeting both the Kaos GL Association and Att. Sinem Hun. As well as being discriminative and against Jewish people, the news also showed homophobic hate.
Hun’s official complaint regarding this issue was declined by the Office of Chief Prosecutor because there was no need to prosecute and that’s why Att. Hun applied to the Constitutional Court.