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 case filed at the administrative court to annul the illegal decision by the Ministry of the Interior to terminate state employment and whether the trial was conducted according to the law and justice.
Scope of Investigation:
Istanbul Eighth Administrative Court 2009/476 E and Decision No: 2009/2242.
Summary of the Event Before Investigation:
F.E. passed his police exams in June 2006 and started working at the Security Branch Directorship of the Istanbul Police Department.
There was a tip off that he sexually abused children and committed obscenities and the investigation conducted led to a decision of non-prosecution.
In this period, he was psychologically pressured to resign but the discipline investigation within the institution continued. F.E. withdrew his resignation but it was not processed and the discipline investigation concluded with a decision to terminate his state employment. A suit was filed to annul this illegal decision with a motion to stay the implementation.
Pre-Trial Investigation and Prosecutorial Processes:
F.E.’s house was searched on 24.09.2007 after the tip that he sexually abused children and committed obscenities.
Though there was no warrant for the confiscation of his computer, it was confiscated instead of obtaining a back up. There is no record in the file that F.E. was reminded of his rights. Neither was there a person or a neighbor to sit with him during the search, which is against the laws of confiscation.
Though there was no evidence of child pornography during the search, the investigation of the crime of obscenity continued. In File No: 2007/167515 E., the Bakırköy Public Prosecutor’s Office made a decision of non-prosecution on 04.12.2008, Decision No: 2008/41285. The confiscated belongings were returned after the decision.
The Discipline Investigation by the Ministry of Interior’s High Discipline Board:
The process that started with the tip against F.E. continued with the discipline investigation by the Ministry of Interior’s High Discipline Board. The illegal search and confiscation were taken as grounds for this investigation.
The inspectors of the Ministry of Interior recommended that F.E. be punished with termination of state employment based the State Personnel Law No: 657 Article 125/E-g that states “engaging in shameful and embarrassing behaviors that are not befitting of someone within state employment.”
The discipline investigation claimed that during his employment at the Security Branch Directorship of the Istanbul Police Department, F.E. engaged in homosexual relations, had close relations with former sergeant, went to gay bars frequented by homosexuals, took part in gay/homosexual chats online, and sexual images and videos were found on his personal computer. His defense was requested in light of the State Personnel Law No: 657 Article 125/E-g that states engaging in shameful and embarrassing behaviors that are not befitting of someone with the title state employee, which is punishable by termination of state employment.
The discipline investigation concluded on 17.07.2008 with the Ministry of Interior’s High Discipline Board Decision No: 2008/44 giving a decision of termination of state employment.
F.E.’s Resignation During the Discipline Investigation:
F.E. was psychologically pressured to resign on 24.09.2007 as it became impossible for him to work in the institution during the ongoing prosecutorial and discipline investigations.
On 05.10.2007, F.E. submitted a new petition to withdraw his resignation. With File No: B.05.1.EGM.0.71.02.04/173708 dated 23.10.2007, the Ministry of Interior’s Police Department remarked on the petition that his resignation and termination from 26.06.2007 onwards was accepted on 24.09.2007 on the basis of State Personnel Law No: 657 Article 94 (resignation).
The Case Filed at the Administrative Court to Annul the Termination of State Employment:
Following the conclusion of the discipline investigation and the decision to terminate F.E.’s state employment, a case was filed at the Istanbul Eighth Administrative Court under File No: 2009/476 E to annul this illegal termination with a motion to stay the implementation that would cause irrevocable damage.
The trial petition stated that the decision to expel from F.E from his profession violated Articles 8, 9, and 10 of the European Convention on Human Rights.
The punishment would prevent F.E., a master’s student at the Istanbul University Science Institute, from starting an academic career. Termination of state employment would also prevent him from going back to the job he was going before passing the police exams, when he was working as a chemistry teacher.
The petition stated that the continuation of the discipline investigation despite his resignation and the decision to expel from him from the profession was against the law.
The Court first assessed the request for a stay motion but rejected it without providing reasoning. The objection to the rejection was also not accepted by the Court, again without providing reasoning.
Following the proceedings, the Istanbul Administrative Court rejected the suit by stating that no violation of regulations had been found under File No: 2009/476 and Decision No: 2009/2242.
In its reasoned decision, the Court stated, “…the plaintiff lived with two men who are deemed to be homosexual from time to time, went to a bar frequented by homosexuals with his boyfriends, unnatural pictures, texts, and photographs were stored in his computer along with natural pornographic images, the ceased computer revealed that using a nickname, he chatted online with people with homosexual tendencies and these chats had homosexual content, lived with a woman who left her home without permission even though she is an adult. Further, the sexual photographs from the ceased computer were analyzed and showed resemblances to a female police officer who was his colleague, and he had close relations with a sergeant who left the military in the Office of the Commander of Chief Air Force Command with a letter that expressed his homosexuality on 23 October 2007.
The Court stated, “…Given the investigation report and its addendum, the candidate police officer lived periodically with two homosexual persons documented by the health institute, possessed homosexual materials at home, frequented clubs where homosexuality continued, and at different times and locations met, talked with, and befriended people online and in person. These qualified actions are not befitting of someone within state employment and therefore, the punishment given to the plaintiff does not violate regulations,” and rejected the case.
The decision by the Administrative Court was appealed with a stay motion request.
The Council of State Twelfth Chamber File No: 2010/3201 discussed the request for a stay motion; despite the chamber president’s caveat, the request for a stay motion was denied with four members’ nay votes. The file is still at the Council of State and its appeal investigation has not been completed.
Conclusions on the Investigation and Observations
Both the defendant administration and the Court have arbitrarily interpreted the State Personnel Law No: 657 Article 125.
Homosexuality is not considered a crime in the Turkish Penal Code or in our other laws. When the administration chose to terminate F.E.’s state employment after the discipline investigation, it acted arbitrarily, illegally, and unjustly. The decision clearly violates the principle of proportionality.
The High Discipline Board and the Court’s definition of homosexuality as unnatural sexual intercourse, as an act that is shameful and embarrassing is against science, law, and justice.
The inspectors of the Ministry of Interior who led the discipline investigation and the Court judges who ruled in contradiction with the law have clearly violated the Constitution’s Article on Equality.
The discipline investigation against F.E. also violates the basic penal law principle of no punishment without law. Neither the State Personnel Law No: 657 nor any legal regulation define homosexuality as a disciplinary crime. Yet the High Discipline Board regarded homosexual relations as a shameful and embarrassing behavior not befitting of someone within state employment. The Court’s ratification of the punishment of termination of state employment shows that homosexuality is a shameful and embarrassing behavior not befitting of someone within state employment.
The punishment of termination of state employment and the ratification of this illegal decision by the Court also violated the international agreements Turkey is party to.
The European Convention on Human Rights Article 8 is the right to, and respect for, private and family life and private life includes a person’s sexual life and sexual orientation. The police and the Discipline Board’s investigation into F.E.’s sexual orientation and activities as well as the details of his encounters is a clear violation of the right to respect of his private life.
Even though our national law includes regulations on the prevention of discrimination, albeit insufficient and lacking in monitoring mechanisms, there are still plenty of regulations that can lead to discrimination. The expressions in State Personnel Law No: 657 Article 125 that include, “behaviors and attitudes that are not befitting of someone within state employment,” “behaviors outside the bounds of general morality and manners,” “shameful and embarrassing behaviors,” and “dignity” are only a few examples of discriminatory regulations.
Discriminatory regulations must be determined through a comprehensive survey and must be amended to be consistent with international agreements.
Lawyer Özlem AYATA