European Court of Human Rights

Gay inmate: “It wears me down to be penalized on top of my sentence”

“Some of us only wish for a cup of tea.”

Source: “Hücre cezası uygulanan eşcinsel: Ceza içinde ceza yatmak beni çok yıpratıyor” (“Gay inmate: It wears me down to be penalized on top of my sentence”), T24, 1 December 2015, http://t24.com.tr/haber/hucre-cezasi-uygulanan-escinsel-ceza-icinde-ceza-yatmak-beni-cok-yipratiyor,318524

14 LGBTI inmates in Alanya L-Type Closed Prison are serving time in solitary cells – a practice that only applies to convicts sentenced to aggravated life imprisonment – and are denied a special ward despite their numbers. Lawyers affiliated with the Alanya Board of Women’s Rights say, “The convicts are held in confinement 23 hours a day and are let out for fresh air for only an hour.” The convicts reported on their situation in letters that they sent to non-governmental organizations:

“I feel suffocated. It wears me down to be in a situation I did not deserve and to be penalized on top of my sentence. … I am only allowed to get fresh air in the yard for an hour a day as if I am sentenced to solitary confinement. If I were, it would not feel this horrible.”

“There are 15-20 of us here with reports that identify us as gays. But they don’t open a ward for us. We are serving our time like our friends who are sentenced to aggravated life imprisonment. The well-off ones among us have things like a TV, a fridge, or an electric teapot. Others don’t have anything and only wish for a cup of tea. If there was a ward and we all lived there, we would at least have an environment to share things among us.”

“They only let us out for an hour a day and they let us out one by one. I can’t sit down and have a conversation with any one of my gay friends. You could guess that we are already ostracized by our families because we’re gay. Our mental state is already off. We need to support each other at times like these, but we’re further banished by the government instead.”

Turkey had been convicted

Turkey was convicted by the European Court of Human Rights as a result of a lawsuit known as “X v. Turkey” about a gay individual who was confined to a solitary cell for 8 months. It is also against Turkish law to confine an inmate to a solitary cell without a sentence to that effect.

“The capacity is much higher [than stated]”

During the lawyers’ visit, prison director Ali Şeref Gül reportedly said, “The prison has a capacity of 480 inmates, though it currently holds more than 1600 convicts and detainees. So it is difficult to assign a special ward for people suffering from homosexuality.”

The capacity of the prison is stated as 1820 inmates on the website of the Ministry of Justice. The prison authorities that we were able to reach stated that the capacity is higher than 1820 inmates.

Several NGOs are collecting signatures for a petition to lift the solitary confinement penalty on gay inmates and vowed to follow up with the petition. The following is a list of the NGOs behind the petition:

 

Afyon LGBTİ Kuruluşu

Akdeniz Pembe Caretta LGBTQ

Bilgi Gökkuşağı

Boğaziçi Üniversitesi LGBTİ Çalışmaları Kulübü (BÜLGBTİ)

Boğaziçi Üniversitesi Sosyal Hizmet Kulübü (BUSOS)

Bursa Özgür Renkler LGBTİ

Ceza İnfaz Sisteminde Sivil Toplum Derneği (CİSST)

Cinsel Şiddetle Mücadele Derneği

Çağdaş Hukukçular Derneği İstanbul Şubesi

Dokuz Eylül Üniversitesi Eşit Şerit Topluğu

Edirne LGBTİ Çalışma Grubu

Erktolia

Erzincan Katre Kadın Oluşumu

Flu Baykuş

Görülmüştür

Hebun LGBT Diyarbakır

Hevi LGBTİ

İnsan Hakları Derneği Genel Merkez

İnsan Hakları Derneği İstanbul Şubesi

İnsan Hakları Derneği Sakarya Şubesi

İstanbul LGBTİ Dayanışma Derneği

İzmir LGBTİ İnisiyatifi

Kaos GL

KESK Kadın Meclisi

Keskesor LGBTİ Diyarbakır Oluşumu

Kırmızı Şemsiye Cinsel Sağlık ve İnsan Hakları Derneği

Lambda İstanbul Derneği

LGBTİ Aileleri ve Yakınları Derneği (LİSTAG)

Liseli LGBTİ

Mahsus Mahal

Malatya Gökkuşağı LGBTİ İnisiyatifi

Mersin 7 Renk LGBTİ Derneği

Moira Kadın Dayanışma Derneği

MorEL LGBTİ

Muş Kadın Derneği (Mukadder)

Özgürlükçü Hukukçular Derneği

Pembe Hayat LGBTT Dayanışma Derneği

Pozitif Yaşam Derneği

Sınır Tanımayan Kadınlar / Göçmen Kadınlarla Dayanışma Grubu

Siyah Pembe Üçgen İzmir

Sosyal Politikalar Cinsiyet Kimliği ve Cinsel Yönelim Çalışmaları Derneği (SPoD)

T-Klüp

Toplumsal Dayanışma İçin Psikologlar Derneği

Toplumsal Haklar ve Araştırmalar Derneği

Trabzon Mor Balık LGBT

Yeni Demokrat Kadın

Yoğurtçu Kadın Forumu

Queer Documentaries

Kaos GL and Pink Life’s Criminal Complaint Against Posters and Online Statements Calling for Massacring LGBTs

Kaos Gay and Lesbian Cultural Research and Solidarity Association and Pink Life LGBTT Solidarity Association is filing a criminal complaint with the Information Technology Bureau of the Chief Public Prosecutor’s Office regarding the group Young Islamic Defense’s statement issued on their website and the posters posted throughout Ankara streets which quote a hadith by the prophet Muhammad calling for the massacre of LGBT individuals. Attorneys Hayriye Kaya, Yasemin Öz, and Oya Aydın are accusing Global Analysis (Küresel Analiz), the content provider for the website, for violating constitutional rights and relevant legislation in the Turkish Penal Code regarding inciting hatred and provocation to crime. Below are key points underlined in the complaint:

EVENTS:

  • The LGBTIs have been characterized as “THE PEOPLE LIVING THE SUMMIT OF IMMORALITY” and were made the target of homophobic and transphobic hate and violence in the article entitled “Remains of the Tribe of Lot” published in the website www.gencislamimudafaa.com on 6 July 2015.

In the relevant article it was stated that:

The march of the organization entitled ‘LGBT’, that we are ashamed even to write the long form thereof, has once again proven us that the remains of the Tribe of Lot are still present in this day and age. These people living the summit of immorality also made sure to ridicule the names of the holy Three Months, namely ‘Rajab, Sha’bān and Ramadan’. We could not have remained indifferent, in the God’s righteous path, to this deprived march in the void cause. We showed effort both to raise awareness of our society and to do a small portion of our part. By putting up our posters on this matter to some areas, we shared the hadith ‘If you see the one carrying out the Tribe of Lot’s dirty work, kill the doer and the done!’ mentioned in Tirmidhi and Abu Dawood, with our society in order to show that the Muslims must not stay silent about this and that Islam strictly forbids this matter. Our wish is that we learn the conduct Islam requests from us, in the light of the Quran and Sunnah, instead of learning it from the preachers who cannot scream the truth on televisions.”

Below the statement, there were photographs of the posters (Annex-1) stating “If you see the one carrying out the Tribe of Lot’s dirty work, kill the the doer and the done” that were put up in various areas.

STATEMENTS:

There is an explicit call for the murder of LGBT individuals justified by religious references in the statement on the website  and the posters (as shown in the photographs below the statement).

  • Article 214 of the Turkish Penal Code entitled “Provoking Commission of Offense” states:

(1) The person who provokes a crime shall be punished by imprisonment for six months to five years.

(2) The person who provokes a section of society to arm itself and kill another section of society shall be punished by imprisonment for 15 to 24 years.

(3) In the event of said crimes being committed, the person who provokes the crime shall be punished as the person who enables the crime.

As explained above and as can be seen in the internet print outs attached to our petition, through this statement and posters, a call is issued to Muslims not to be spectators to “immorality” but to kill LGBT people.

  • The right to life is a basic human right. The right to life and the material and spiritual integrity of a person is guaranteed in international covenants and the Constitution. Article 2 of the European Convention on Human Rights also emphasizes the right to life as one of the most fundamental provisions.

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Turkey’s Council of State rules firing of gay teacher to be against the law

Source: “Danıştay, eşcinsel öğretmenin atılmasını hukuka aykırı buldu”, (“Council of State rules firing of gay teacher to be against the law”), memurlar.net, 17 March 2015, http://www.memurlar.net/haber/505697/

The Council of State has ruled that the dismissal of a teacher who has homosexual relations in their private life to be against the law. The Council of State has pointed to the lack of evidence, indication or witnesses to show that the plaintiff reflected homosexual tendencies in the school or engaged in such relations with students outside of the school. It also pointed to the testimonies of teachers and directors taken during the disciplinary investigation who work in the same school as the plaintiff in which they state that they have not seen any negative acts and that they have not heard anything about the issue.

Therefore, the Council of State has ruled that the act consists of consensual homosexual relations within the plaintiff’s private life and that it has no relevancy to Law No: 657 Article 124/2 on Disciplinary Law of Civil Servants and that it is not a disciplinary crime. The Council of State has annulled the decision of the administrative court which had not withdrawn the decision of dismissal from the profession.

The Council of State, 12th Circuit, No: 2011/750, Decision No: 2014/7169. Full decision in Turkish can be found here.

Editor’s Note:

The decision refers to the Turkish Constitution’s Article on Equality, Right to Respect for Private and Family Life and Article 90 that holds “international agreements duly put into effect bears the force of law”. The decision cites the European Convention on Human Rights’ Article 8 “Right to respect for private and family life” and Article 14 “Prohibition of discrimination”. The decision refers to European Court of Human Rights rulings Dudgeon v. United Kingdom (Application No: 7525/76 – Decision Date: 22.10.1981), Smith and Grady v. United Kingdom (Application No:33985/96- Decision Date: 27.9.1999), Lustig/Prean and Beckett v. United Kingdom (Application No: 31417/96 – Decision Date: 27.9.1999), Perkins and R. United Kingdom (Application No: 43208/98 – Decision Date: 22.10.2002), Beck, Copp and Bazeley v. United Kingdom (Application No:48535/99 – Decision Date: 22.10.2002), which put forth that dismissing person from the military based solely on their sexual orientation is a violation of ECHR’s Article 8 and ruling Özpınar v. Turkey (Application No: 20999/04 – Decision Date: 19.10.2010), which states that a judge’s dismissal from the profession on allegations of the judge’s relationships in their private life, way of dressing and makeup constituted a violation of the right to privacy.

 

The European Court of Human Rights to announce verdict on Turkish gender reassignment law

The European Court of Human Rights (ECtHR) will announce its final judgment on March 10 in the case of a trans man in Turkey who was not granted court permission needed for gender reassignment surgery.

Source: Ömer Akpınar, “AİHM trans geçiş sürecine ilişkin kararını 10 Mart’ta açıklayacak” (“ECtHR to announce verdict on Turkish gender reassignment law”), kaosGL.org, 24 February 2015, http://kaosgl.org/sayfa.php?id=18827

The ECtHR will announce its final verdict on Y.Y. v Turkey case regarding Article 40* of the Turkish Civil Code on gender reassignment.

What does Article 40 require?

Article 40 of the Turkish Civil Code stipulates that a court permission must be obtained in order to undergo gender reassignment surgery. According to the article, the permission can only be given if the person is over 18 and unmarried and if the person has obtained official medical board reports to prove that the operation is psychologically needed and that the ability to reproduce is permanently lost.

Proof for being “unable to reproduce” brought a legal deadlock

The applicant who wants to be registered as male and to get permission for gender reassignment surgery applied to a Court of First Instance in 2005. The next year, he got two different psychiatric expert reports in February and April, stating that he must continue his life as a man. However, following a report in May stating that the person still has the ability to reproduce, the court ruled that the applicant does not fulfill the requirements of Article 40.

How can one fulfill Article 40’s requirements if the surgery for losing reproductive ability has not been permitted?

The Supreme Court of Appeals stated in a May 2007 verdict that the decision by the Court of First Instance is correct. It also rejected the applicant’s request for a correction in the ruling in October 2007.

Y.Y. v Turkey

The applicant took the case to the ECtHR in 2008, complaining about the content and the interpretation of the law. In the proceeding which started 2 years later, he underlined that the relevant requirement of the law can only be fulfilled by a surgery, leaving him in an inconclusive situation.

Although it was proven by medical reports that the applicant identifies as a man and his physiology does not fit his gender identity, it was not enough for the court. The applicant claims that his right to privacy, designated in Article 8 of the European Convention on Human Rights, has been violated.

“If accepted, the case might lead to an amendment in the law”

The applicant’s lawyer, Ali Nezhet Bozlu, explained the possible outcomes of the case to kaosGL.org:

The legal impact depends on whether the ECtHR will accept the case and their justifications. If it is accepted, the Committee of the Ministers of the Council of Europe will monitor the implementation of the decision and perhaps mention the case in Turkey’s Progress Reports. This may lead to a discussion to amend the law, however, such amendments take time.

Article 40 of the Turkish Civil Code:

A person who wishes to change their gender may request permission to change their gender by applying in person to the court. However, for the permission to be granted, the applicant must be 18 years old and must be unmarried. The applicant must also be in a transsexual nature and must document the necessity to change their gender for their mental health and that they are permanently deprived of reproductive abilities through an official health committee report obtained from an education and research hospital. Depending on the permission granted, once the gender reassignment surgery fit for the aim and medical methods has been completed and verified by an official health committee report, the court decides to make the necessary changes in the population registry.

Prison time and fine for Conscientious Objector Mehmet Tarhan

The Sivas Military Court sentenced conscientious objector Mehmet Tarhan to 15 months in prison and a 9,000 Turkish Lira fine. The Military Court’s ruling ignores the European Court of Human Rights’ earlier verdict on Tarhan v. Turkey.

Source: “Vicdani retçi Mehmet Tarhan’a hapis ve para cezası!” (“Prison time and fine for conscientious objector Mehmet Tarhan”), KaosGL.org, 10 February 2015, http://kaosgl.org/sayfa.php?id=18692

Conscientious objector and LGBTI activist Mehmet Tarhan received a 15-month prison sentence and a 9,000 Turkish lira (~$3,600) fine based on disobedience charges.

The Sivas Military Court’s ruling on the case is in conflict with the earlier European Court of Human Rights (ECtHR) verdict from 17 July 2012, which stated that Tarhan’s rights were violated by the Turkish state.

Tarhan spoke to KaosGL.org about the court’s decision: “The Sivas Military Court has shown that it does not recognize either the constitution or the European Court of Human Rights. We will take the decision to the Supreme Court of Appeals.”

mehmettarhan1

What happened before?

Tarhan rejected military service and announced his conscientious objection in 2001. In 2005, he was forcibly taken for military service, sued for insubordination in two separate cases, and treated poorly whilst under arrest in a military prison.

In violation of the constitution and the ECtHR, Tarhan was given a physical exam because of his homosexuality.

According to records dated 25 May 2005, Tarhan’s hair and beard were shaved against his will by seven soldiers, who pulled him down onto the ground and got on top of him. Tarhan reported having suffered several bruises and abrasions on his body. He started a 28-day hunger strike the same day.

ECtHR convicted Turkey

Tarhan then applied to the ECtHR to defend his right to conscientious objection and report his maltreatment under arrest. The ECtHR ruled that the European Human Rights Convention was violated in Tarhan’s case and sentenced Turkey to pay 10,000 Euros.

Amnesty International Statement from 18 October 2006- “Turkey: Conscientious objector Mehmet Tarhan sentenced

Separate Prison for the LGBTI, Collective Isolation

Source: “LGBTİ’lere Ayrı Cezaevi, Toplu Tecrit,” (“Separate Prison for the LGBTI, Collective Isolation,”) kaosGL.org, 15 April 2014, http://www.kaosgl.com/sayfa.php?id=16329

LGBTI organizations, lawyers and MPs from Justice and Development Party (AKP) and Republican People’s Party (CHP) offer their assessment on the project for separate prisons for the LGBTI: “collective isolation,” “concentration camp,” “labelling,” “against the ECHR”

Bekir Bozdağ, the Minister of Justice, stated that plans were underway for the project to construct separate prisons for inmates with different sexual orientations and gender identities.

Bozdağ’s announcement triggered a public debate. According to the report by Ümran Avcı and Şerife Güzel from Habertürk, while some approve of the policy, LGBTI organizations have reacted and described the project as “isolation/quarantine” and “concentration camp.”

Here are some of the opinions expressed:

“This is actually collective isolation, total medieval mentality”

Murat Köylü, Kaos GL Foreign Affairs Coordinator:

We believe this exposes a very important reflex of this government. Not only with regards to the rights of gay and trans citizens, but also, in the context of national and international dynamics, its perspective on topics like human rights, the primacy of law and democratic criteria. We can see that a government that denies the existence of LGBT people when it comes to discrimination and protection from violence, can take special measures when it comes to imprisoning them. When you look at the issue from the perspective of human rights, democracy and the primacy of law, this is actually a collective quarantine. A medieval mentality. 1.5-2 years ago, Turkey was found guilty at the ECtHR in a case where a gay inmate in Izmir was placed in a separate prison for their “own safety.” Now they will be separating all the LGBT people “for their own safety.” Isolation is one of the heaviest penalties. This means, in effect, the institutionalization of social discrimination. LGBT people want to live like everybody else without being subjected to discrimination. What kind of reasoning are these policies based on? Most LGBT people have to hide their gender identity in the absence of a policy of protection. How are they going to protect those who do not want to be out in normal prisons?

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The Rights Violations Against LGBT People: Selected Case Analyses

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   

The Social Policies, Gender Identity and Sexual Orientation Studies Association has been working in the field of access to law and justice since it was founded two years ago. We have organized educational workshops on LGBT rights for lawyers in order to strengthen LGBT people’s methods of accessing justice. We have also given legal aid to LGBT people whose rights have been violated. Our other work includes tracking legislation, participating in the New Constitution drafting process, and pursuing selected cases.

This report includes case summaries and analyses of SPoD’s selected cases. The selection has been made according to the LGBT public’s key issues. Cases based on the frequent violations of LGBT people’s right to life, work, and housing have been chosen. Emphasis has been placed on joining cases as joint plaintiffs while working with lawyers, NGOs, and the Grand National Assembly of Turkey (TBMM) for positive results. Furthermore, the media has been lobbied for the selected cases to ensure the flow of correct and effective information to the public and to make sure that victims are not doubly victimized by the media’s homophobic/transphobic language. A legal battle has been waged against the “hate language” produced by the media in general. Therefore, we did not focus solely on the legal aspects of the cases but also on their background in order to change the biases that lead to rights violations.

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