Law & Politics

Judicial and political environment in Turkey on LGBTI issues

Kaos GL: “Good behavior” reduction to threat against LGBTI+ individuals

Far-right ultranationalist Alperen Hearths’ Istanbul Chair Kürşat Mican receives a judicial fine of 4,000 Turkish Liras (about 1,050 USD) due to his “good behavior” on trial where he was charged with “inciting the public to hatred and enmity” after he threatened Pride March. The Alperen Hearths are a far-right ultranationalist and Islamist youth group linked to the nationalist Great Union Party (BBP).

Source: “ ‘Good behavior’ reduction to the threat against LGBTI+ individuals” (“LGBTİ+’ları tehdide ‘iyi hal’ indirimi”), kaosgl.org, December 14, 2017, http://kaosgl.org/sayfa.php?id=25086

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The third hearing of the trial of Alperen Hearths’ Istanbul Chair Kürşat Mican took place on Dec. 14 in Kartal Courthouse, 44. Court of First Instance. Mican was charged with “inciting the public to hatred and enmity, deliberately insulting a section of the public based on differences in social class, religion, sect, gender and region” after his threat against the 2016 LGBTI+ and Trans Pride March.

Mican, on trial with a demand for up to 6 years in prison, was sentenced to 4,000 Turkish Liras (about 1,050 USD) judicial fine due to his “good behavior” on the charge of insulting a section of the public based on differences of gender. Dogan news agency reported that the court decided that the fine be paid in 10 installments.

Ankara ban becomes premise for Mican

Mican defended himself at the last hearing, saying “The state should not allow these to do such things. Our state has protected every sect’s belief but the liberty demanded here is not a normal liberty.” At today’s hearing Mican pointed out the ban issued by the Ankara Governor’s Office against LGBTI+ activities as a premise.

What had happened?

Muslim Anatolia Youth, a group organizing over social media issued a call for an event called ‘ We won’t let undignified perverts walk’ against the 2016 LGBTI Pride March planned for June 26 and June 16 Trans Pride Marches.

Alperen Hearths Foundation Istanbul Chair Kürşat Mican threatened the June 26 LGBTI Pride March, using homophobic and transphobic hate speech. Alperen Hearths had gathered on Istiklal Avenue during Pride Walks as a small group and tried to provoke the crowd yet failed to block the walk. Their chair Mican stated:

“We will never allow this type of immoralities which touch upon the nerve ends of the society disguised as Pride Walks, to be normalized or encouraged. Our reaction will be clear and severe. They always do the same things on a holy month. They mock us, ignoring our values and making fun of us. Esteemed state authorities, do not let us be occupied with these. Either do what’s necessary or we will take care of it. We will take every risk, we will directly block the walk. Our state should stop this, considering our national values. Because this is not a normal liberty. This is our warning now. We let you know about what is to come beforehand, we will not be held accountable after this point.”

Istanbul LGBTI Solidarity Association and Human Rights Association had filed a common criminal complaint regarding the threats and demanded that Mican and other stand trial. Halkevleri had also filed a criminal complaint.

Following the reactions Mican suggested that he did not threaten the walk, saying “I’m not suggesting that we chase people around with bats in Taksim.”

Sputnik: Turkish Constitutional Court rules sex workers cannot be fined on the Law of Misdemeanors

Upon the application of a transsexual sex worker, the Turkish Constitutional Court decided that police officers cannot issue fines against sex workers based on the Law of Misdemeanors. The high court approved the verdict with majority of votes and the decision would establish a precedent.

Source: “Constitutional Court: Sex workers can not be fined on Law of Misdemeanors” (“AYM: Seks işçilerine Kabahatlar Kanunu’ndan para cezası kesilemez”), Sputnik, 21.12.2017, https://tr.sputniknews.com/turkiye/201712211031491432-aym-seks-iscisi-para-cezasi/

According to a report by Deniz Ayas of Sözcü daily newspaper, a police squad issued a fine against a sex worker based on Law of Misdemeanors No. 5326 as she was waiting for clients in a 2014 incident. The sex worker protested the fine of 91 Turkish Liras and took it to the court. Yet the local court ruled for the law enforcers.

After the appeals procedures, the sex worker took the case to the Constitutional Court where her objection was evaluated. The detailed ruling was issued in the Official Gazette Thursday and included striking evaluations.

The verdict, which is to become a legal precedent was reached with a majority of votes and found the sex worker to be right, emphasizes that the procedure carried out based on the Law of Misdemeanors No.5326 dated March 30, 2005 cannot be valid.

The Law of Misdemeanors does not include prostitution bargaining

The reason for the ruling was stated as the noncompliance between the act of “disturbing others with the aim of prostitution” as reported on the administrative fine of the police officer and the article defined on Art. 37 of Law No. 5326; suggesting that in this incident the act “does not correspond to prostitution”.

“It cannot be fined”

 

It was stressed that the verdict was made based on the principle “No one can be fined due to an act which is not considered criminal based on the law in force at the time. No one can be sentenced to a heavier sentence than the one defined for that crime at the time the crime was committed”. As a result, it was decided that the right of the transvestite* was violated and that the 2 thousand lira cost of “judicial procedures” be paid to her. One member of Constitutional Court objected to the verdict.

Verdict sets legal precedent

The verdict sets a legal precedent for the practices that will follow. This means that the police will not be able to fine sex workers waiting for clients on the streets and avenues ‘just because they are waiting for clients’.

Translator’s Note: The original article uses the words “transsexual” and “transvestite” interchangeably. The article was translated verbatim so as to demonstrate the original wording of the reporting.

For more on the use of the Law of Misdemeanors, please see these translations.

Anadolu: Turkish court annuls infertility requirement for gender change

Turkey’s state-run Anadolu news agency reports the Constitutional Court ruled to annul a stipulation in the Turkish Civil Code “to be deprived of the ability to reproduce” to allow gender change. This is verbatim translation like all our translations.

Source: Aylin Sırıklı Dal, “Cinsiyet değiştirmede ‘üreme yeteneğinden yoksun olma’ şartı kalktı,” Anadolu Ajansı, Nov. 30, 2017, http://aa.com.tr/tr/turkiye/cinsiyet-degistirmede-ureme-yeteneginden-yoksun-olma-sarti-kalkti/985974

The Constitutional Court decided to annul the legal requirement “to be deprived of the ability to reproduce” to allow gender change.

According to information gathered by Anadolu Agency correspondent, a homosexual opened a case in the Ankara 4th Court of First Instance after being unable to change their identity card due to not having had gender change surgery.

The court petition asked the court to evaluate the claim that the Turkish Civil Code’s Article 40/2 mandating the requirement of gender change surgery to change one’s identity card violated the constitution.

Ankara 4th Court of First Instance found the petition to be serious and took the file to the Constitutional Court.

The General Council of the Constitutional Court discussed the basis of the petition at its meeting. The Council rejected the annulment Turkish Civil Code’s Article 40/2 with a majority of votes stating “the court can make the necessary changes in the population registry after an official health institution confirms the gender change surgery was realized.”  

Annulment of requirement to be deprived of reproduction ability

Another petition on this subject was made by the Edirne 1st Court of First Instance. The court applied to the Constitutional Court to annul the statement “….and to be permanently deprived of the ability to reproduce…” in the second sentence of Turkish Civil Code’s Article 40/1.  

The General Council of the Constitutional Court discussed the basis of the petition and made its decision.

The High Court found the requirement “to be permanently deprived of the ability to reproduce” to allow gender change to be contrary to the Constitution and annulled it with a majority of votes.

The first paragraph of the law used to state, “A person wanting to change their gender may apply to a court in person to request the allowance of gender change. However, in order to be allowed, the person needs to have passed the age of 18 and be unmarried, and document through an official health council’s report from an education and research hospital that they are of transsexual constitution, that it’s necessary to undergo gender change for their psychological health and be permanently deprived of the ability to reproduce.”

 

Activists: Ankara ban on LGBTI+ events spreading to other cities!

The “politics of repression” that began with police attacking the 13th Istanbul LGBTI+ Pride March in 2015 when some 100,000 people were expected to attend, and hardened with the state of emergency declared after the July 15, 2016 coup attempt, has increasingly shrunk our living spaces.

After President Erdogan characterized LGBTI+ existences as contrary to morality on Nov. 9, the Ankara governor’s office banned all LGBTI+ events within the province in an indefinite period via a statement on Nov. 18. Cancellations of events in Izmir, Bursa, Kocaeli and Mardin followed the Ankara ban. Now, LGBTI+ events within the framework of Nov. 25 — the UN’s International Day for the Elimination of Violence against Women — have been banned in Istanbul. These bans have followed a common program with hate speech campaigns led by dark pro-government newspapers.

At this stage, local authorities are banning events like film screenings, exhibitions, forums, panels and meetings by LGBTI+ groups in arbitrary and illegal grounds, thereby taking away LGBTI+s freedom, living space and city rights. The grounds for this attitude that is limiting our freedom has been shown as “social sensitivities and sensibilities,” “protecting public health and morality” and “protecting other people’s rights and freedoms.” But we know that the “sensitivity” in the foreground of these allegations can only be found within repressive and oppressive ones. It’s an incontestable fact that LGBTI+ individuals face discrimination in fundamental rights such as education, health, housing, employment, security and transportation in their daily lives and within the law, both in our country and the world. LGBTI+ organizations in Turkey are respectable civil society groups tied to the country’s law on associations working for more than 25 years to ensure LGBTI+ individuals lead safe, healthy and equal social and economic lives. These mass bans are completely contrary to human rights, democratic values of our century and social development is enough to show that the administration in Turkey is now at a point beyond logic.

We invite the national and international public to raise their voice to put an end this craziness. We want these decisions that are limiting our freedoms and taking away our living spaces to be reversed immediately!

We invite authorities to “allow life to go back to its normal course”!

Please contact reverseankaraban@gmail.com for further info and your questions.

Kaos GL: Kaos GL and Pink Life Take the Governorship Ban to Court

Kaos GL and Pink Life filed a lawsuit against the ban announced by Governorship of Ankara, demanding the court to cancel the ban and halt the execution.

Source: Kaos GL, “Kaos GL ve Pembe Hayat Valilik yasağına dava açtı” http://kaosgl.org/sayfa.php?id=25014 November 29, 2017.

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Kaos GL and Pink Life, LGBTI associations in Ankara, have filed a lawsuit against the governorship’s decision to ban LGBTI events for an indefinite period of time, with two separate demands from the court to cancel the ban and halt the execution.

These groups demand the decision of the governorship, which cited concerns of “social sensitivities and sensibilities”, “public security”, “protection of public health and morality” and “protection of others’ rights and liberties” as reasons to ban LGBTI activities, be cancelled. Kaos GL and Pink Life call for immediate halt of the execution of the ban decision and warn the ban will have irremediable consequences.

The attorneys of both associations evaluated the decision and the lawsuits against the decision:

“It harms the associations with every passing moment”

Att. Emrah Şahin, Pink Life: The “indefinite ban” of the Governorship of Ankara against the LGBTI_LGBTT Associations’ activities is not only against the International Conventions and constitutional rights but also against the local legislation provisions upon which the premises of the decision are built. Therefore, as the injured party of this ban we filed a lawsuit at Ankara Administrative Court. The execution of the ban should immediately be halted so as the end this deliberate violation of rights and a cancellation should follow. The fact that the ban is for an indefinite period of time causes the associations active in this field material and moral damages with every passing moment. Beyoğlu District Governorship unfortunately followed Governorship of Ankara’s line of conduct. Although these consecutive bans lead one to think that these decisions are political, we would like to think that these decisions do not stem from the policies of the state but rather from the faulty perspectives of the individuals. Therefore we hope that our rightful case will be won through domestic law without applying to ECHR or other international institutions and/or that the administration immediately gives up on this misguided approach and lifts the ban.

“An attack against the freedom of speech and right to organize of the LGBTIs”

Att. Kerem Dikmen, Kaos GL Association: Although the governorship decision does not formally seem like it bans the activities of the associations working for LGBTI rights, the consequences of the decision essentially ban these activities in their entirety.  In short: the governorship is telling associations that they can remain open and that it does not concern their legal entity status, but that they should not step out of their buildings and should not reach out to people other than their members and activists. One can ask whether the governorship has the jurisdiction to make such a decision under the state of emergency conditions, but under current circumstances the governorship can not assume such authority. On the question if governorship can make these decisions, we respond it should not have such authority. Our cause for alarm stems from the way governorship has passed comprehensive bans on the activities of LGBTI associations such as cinevision, screenings, theatre plays, panels and discussions for an indefinite period of time. What indefinite means is that there is no deadline for the ban. Surely this is a deliberate attack against the rights of the LGBTI individuals to organize as well as their freedom to express themselves in an organized manner. When all activities of an association are banned, it is a de facto banning of the association–which subsequently voids the constitutional right to form associations. It is important to note: the Turkish constitution does not even permit parliament to abolish the right to form associations through legislation, let alone through the governorship.

“We would like to believe that this inconsistency will be eliminated through judiciary process”

We should also clarify, there are no legal categorizes for LGBTT or LGBTI associations in Turkish law. However, “LGBTT_LGBTI” associations are the subject for the new decision. While civil society can coin such terms or categories, serious concern is raised when these terms are used by the state. Additionally, there can be no discriminatory consequences for organizations or their members because the association is LGBTT or LGBTI. We need to think of discrimination that exists not only on individual level but also on communal level. When you ban the right of the LGBTI and LGBTT community associations to organize and form peaceful assemblies, it is a discriminatory decision that also negatively affects individuals. As a result, we find this decision to be inconsistent within the administrative framework of the state of emergency and of state policy. As such, we would like to see this inconsistency eliminated through the judiciary process as soon as possible.

If this is the purpose [of the practice], it will not help weaken the LGBTI movement in Turkey. The civil society movement has reached a wide audience and will not be conformed to discriminatory regulations which seek to reduce the visibility of LGBTI or LGBTT associations. The only consequence of these bans would be to strengthen the resolve and solidarity among the LGBTI individuals and communities.

 

Official Statement: Beyoglu District Governor’s Office bans LGBTI+ events on Nov. 25

Source: T.C. Beyoğlu Kaymakamlığı, “Basın Duyurusu,” Nov. 24, 2017, http://www.beyoglu.gov.tr/basin-duyurusu

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Regarding speculation gathered from social media and open sources that a  meeting and demonstration march with theme “November 25 LGBTI+” as well as film and discussion events in the same theme was planned to take place in our Beyoğlu district on 25.11.2017:

Because applications for the aforementioned events were not submitted within the framework of Law No: 2911 and 2559.

Because the events may be contrary to the Constitutional order or general morality, and because they may pose clear and immediate danger to public order and security:

They will not be allowed to ensure public order and security, to protect other people’s rights and freedoms and to prevent crime, within the framework of our District Governor’s 24/11/2017 2283 and 2284 decisions based on Law No: 2911 on Meetings and Demonstrations’ Article 17 and 28, Law No: 2559 on Police Powers Appendix 1 and Law No: 5442 Article 32/ç.

Respectfully announced to the public.

 

Kaos GL and Pink Life: Ankara governor’s ban on LGBTI events illegal

Source: “Kaos GL ve Pembe Hayat: Valilik kararı hukuka aykırı,” Nov. 19, 2017, http://kaosgl.org/sayfa.php?id=24994

We learned that the governor’s office of Ankara bannedfrom November 18, 2017 onwards, activities of LGBTT-LGBTI organizations such as film screenings, cinevision, theater plays, panels, talks, exhibitions which include certain social sensitivities and sensibilities” via its website.

We will follow legal proceedings on the governor’s illegal, discriminatory and arbitrary ban. There can be no legitimate or legal grounds for such a wholesale ban that touches the core of rights.  

In an omnibus ban with a very wide scope, we are facing a situation that is vague, open to interpretation and rights violations, criminalizing LGBTI existence. LGBTI civil society organizations are respectable institutions working for years to combat discrimination and hate crimes for equal citizenship. This ban, which goes beyond limiting the areas of activity of these institutions and making them inoperable, cannot be accepted in a democratic society.   

Ankara governor’s office’s grounds for the omnibus ban, including the phrases “protecting public health and morality,” “social sensibilities and sensitivities,” “public security” and “protection of other people’s rights and liberties” are clearly discriminatory. This decision legitimizes rights violations and discrimination against LGBTIs.

This decision and the illegal and vague grounds for it violate the very fundamental freedom of expression and association as well as other fundamental rights and freedoms. With this ban, fundamental rights have been interfered with in their essence.

Ankara governor’s office’s decision to ban violates our constitution’s Article 10 on equality and Article 26 on freedom to announce and disseminate thoughts, as well as international agreements Turkey is party to.  

With this announcement the civil administration is endangering public safety by turning LGBTIs and civil society organizations, who are an important part of the public, into targets instead of fulfilling its duty to ensure public security.  

We expect this decision to be rethought and withdrawn in the shortest amount of time. In our country where discrimination and hate based on sexual orientation and gender identity is rampant, it is the duty of national and local administrations to combat this discrimination and hate.