VI. Discrimination and Abuse in Other SpheresA. The MilitaryIn Turkey, where the military is seenand sees itselfas the guardian of Atatürkist principles, 15 months military service is mandatory for any man between 20 and 40 years of age.177 Article 72 of the Turkish Constitution states, Military service is the right and duty of every Turk. Except for some. Turkey bans gay men from military service; it is the only member of the North Atlantic Treaty Organization to do so, other than the United States, and its ban persists nine years after the European Court of Human Rights ruled against a similar ban in the UK. Specifically, the Turkish Armed Forces Health Requirement Regulation bars people with high level psychological disorders (homosexuality, transsexuality, transvestism).178 The commentary to the regulation reads, It must be proved with documentary evidence that the defects in sexual behavior are obvious, and that when revealed in a military context would create problems. What constitutes an obvious defect or one that would create problems is not spelled out. As a result of the regulation and commentary, gay men seeking exemptions are compelled to undergo psychological and, sometimes, humiliating anal, examinations based on mythologies about homosexuality. Sometimes they are also forced to produce photographs showing them as passive partners in anal intercourse. A discharge on the basis of psychosocial illness also cuts off the possibility of future state employment. Private employers who seek information about potential hires will usually only be informed that the man was unable for military service, but even that classification can create a suspicion of homosexuality (or psychosocial illness), making employment difficult.179 Gay men who, despite the ban, try to serve in the military fear how they will be treated in an institution which one calls both basic to Turkish manhood, and the most powerful in the state.180 Kerem told Human Rights Watch about violent harassment during his army service:
In military prison, he faced further abuse from other prisoners and from guards. Guards tried to take me to the showers in the jail where the soldiers committed gang rape. The soldiers wanted to rape me; they were saying, We can have some fun. We havent seen a womans face. Youre like a woman, arent you? Finally he was placed in solitary confinement. The soldiers told the other prisoners I was gaythey gave me a nickname, pembe, pink. They shouted at me all day long. There was one toilet, not in my cell, and I was taken there once a day. The soldiers made the other prisoners stand without moving, and I went to the toilet and came back like that. Kerem was finally freed, but only after going through an anal examination and producing photographs of himself in anal intercourse, to prove his homosexuality.181 Such a succession of humiliations is common for men under military investigation to validate, or deny, an exemption. The first stage is to appear before a committee of doctors at a military hospital. Yahya told Human Rights Watch, It was very clear the doctors thought you were not normal. It is like labeling the sheep in a farm. But it isnt sheep, its men.182 Many menfollowing lore widely circulated in gay communities about how to avoid servicedress up in ways considered stereotypically homosexual. Can said, I prepared myself and exaggerated on purpose. I felt I had to do this so that they would believe me I got some feminine clothes and put make up, but I didnt want to. As we walked through the hospital the soldiers verbally harassed us.183 Barbaros told Human Rights Watch,
The committee orders applicants to undergo personality tests, and sometimes physical examination to detect signs of intercourse.185 This can result in long periods of detention in the military hospital.186 The examinations often include an abusive and intrusive anal examination. As A.A. told of such an exam, he hesitated nervously. He still has difficulty putting into words what he went through two years earlier.
Yahya described a similar ordeal:
Yahya showed us the resulting document:
Usually the applicant is made to complete psychological tests, particularly the Minnesota Multiphasic Personality Inventory (MMPI)and the attitudes of presiding psychologists show a conviction that homosexuality is a sickness. Deniz Yıldız, a student who had studied psychology, told Human Rights Watch:
Oğuz was held in the military hospital for 10 days. Involuntarily. They interviewed me over and over. They asked again and again if I shaved or waxed my body hairs. I said no, I am gay, but a gay man. I want to be with another man as a man. Finally, he was forced to take what was apparently sodium pentothal for a final interview.192
Perhaps still worse, many patients are required to produce pictures of themselves engaged in sexual positions. Seyhan applied for the exemption while still identifying as a gay man, before transitioning to a transgender identity. They asked for pictures. I had to take 40 or 50 different pictures with two different people: they were very specific, she said.194 And a doctor told Barbaros: You may be homosexual but the army has to document it. We cant know on our own who is gay and who is not.
A.A., however, refused to feminize himselfmaking his exemption harder, but also making his the first known case to reach a military court
Ultimately, paradoxically, evidence that he had been a victim of violence helped to prove that A.A. was gay.
These stories indicate how the military clings to powerful myths about both homosexuality and masculinity itself. They show how far the most powerful institution of the Turkish state will goinvestigating anuses and producing its own pornographyto adhere to its exclusive definition of the meaning of being a man. The Turkish ban on homosexuals serving in its armed forces labeling homosexuality a psychological disorder and the intrusive and humiliating questioning it enables are clear violations of the ECHR. Indeed, Turkey is the only European NATO member to persist with such practices, nine years after the European Court of Human Rights found the UKs ban on homosexuals serving in the armed forcesand the questioning its armed forces carried outto violate Article 8 (right to a private life) of the Convention.197 In a strong opinion, the Court found that the UK could not justify its ban, and indeed should adapt similar methods to combat homophobic bullying in the army as it had already done to tackle racial and gender bullying.198 The Court also found the intrusive questioning of the applicants into their private lives to breach the Convention, stating in effect that there was no justification for any questioning to continue once the persons had stated that they were homosexual.199 B. Psychiatry and the Medical ProfessionThe accounts above also reveal the persistence of prejudice in the medical profession.200 One prominent doctor told Human Rights Watch, Turkish psychiatry is very conservative, very resistant to change.201 Several young people told Human Rights Watch that when their parents learned of their sexual orientation in their adolescence, they were forced to seek treatment from a psychologist or psychiatrist. Some, indeed, found sympathetic help. Can said that when his parents insisted he seek psychiatric help at 17, the doctor told them: You must help him adjust to his life, support him. You cannot change him.202 However, Esmeexpelled from school at 16 when she declared she was a lesbiantold Human Rights Watch that the psychologist gave her anti-depressants, which he said would cure me of being a lesbian.203 Deniz described how, when as a 16-year-old student he told his mother he was gay, The family insisted I see a psychiatrist. And I was very willing, because I was depressed. But my problems were with my relationships with my family and friendships, not my sexuality. He was diagnosed by a professor at Ankara University:
Mustafa told Human Rights Watch that after a man raped him brutally, during his early twenties,
And he added, Many psychiatrists know nothing about this.
This psychiatric treatment is often provided under a misperception that the sexual orientation of young people can or should be treated or cured. The use of psychotherapy to do this is contrary to human rights. The Convention on the Rights of the Child obliges States parties to take "all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence."206 Under article 24 of the same treaty young people have the right to health, which includes, as mentioned by the Committee on the Rights of the Childwhich monitors compliance interprets the CRC, having a supportive environment by family and others.207 C. Public Morals: Restrictions on AssociationLesbian, gay, bisexual, and transgender activism has been publicly visible in Turkey for more than 10 years, but only after 2000 did groups move toward becoming legal entities. In 2003 there were no legally registered organizations devoted to defend LGBT rights in Turkey. Changes in the Law on Associations, easing the stipulations for recognition, made it possible for LGBT groups to achieve legal status.208 Yet the visibility of these groupsLambda Istanbul and, in Ankara, KAOS-GL and Pink Lifealong with that of other activists, has led to government repression. LGBT groups throughout Turkey today struggle to protect their right to exist, express themselves, and survive. On July 1, 2007, local LGBT organizations hosted the fourth Gay Pride march in Istanbul under the slogan Let us defend life together. More than 1000 people walked down İstiklal Street, a central thoroughfare in Istanbul, marking the first time a gay pride march in Turkey drew so many.209 The march gave new spirit to those supporting LGBT rights. Yeşim, 33, told Human Rights Watch, I started to think, this is a movementbefore that I thought we were just little groups.210 Three months after the march, Lambda Istanbul, one of the LGBT organizations in Istanbul, appeared before a court to defend its right to exist. On October 18, 2007, its representatives appeared at a hearing before the court of first instance, an administrative court.211 The Provincial Associations Directorate of the Governors Office in Istanbul responsible for non-governmental organizations (NGOs) demanded in early 2007 that Lambda Istanbul be shut down. The Governor s Office sent a letter to the group specifying that the words lesbian, gay, bisexual, transvestite and transsexual in Lambda Istanbuls name and objectives are against the law and morality, in breach of article 56 the Turkish Civil Code212 and article 41 of the Constitution.213 The Governors Office also claims that the groups name contravenes the Law on Associations because Lambda is not a Turkish word. In July 2007, the local Prosecutors Office rejected the complaint. The Governors Office then took the case to a higher court, the Beyoğlu Sütlüce Court of First Instance No. 5, which held a hearing that same month and ordered a second hearing for October 2007. The hearing was adjourned pending an experts opinion on the definition of morality with regards to the word lesbian, gay, bisexual, and transgender. Speaking to Human Rights Watch in October 2007, Istanbul Governor Muammer Güler acknowledged that Lambda Istanbul had legal status, but claimed that his office started proceedings against its name and purpose because those breached the law. Asked to explain this assertion, he told Human Rights Watch, Im supposed to apply the law, not interpret the law. The independent judiciary will decide, not us.214 Governor Güler then added that morality issues [are] just a thing that is provided by the law. It does not affect them [the NGOs] in practice; is there anything that limits their activities?215 In fact, there is. Until Lambda Istanbuls legal situation is resolved, its uncertain legal status will continue to have political effects some of its members fear to state their views or oppose state policies too openly and economic limitations. The lack of official status interferes with getting funds: embassies dont want to fund us; we cant even have a bank account until the situation is resolved, Cihan, a member of Lambda Istanbul, said.216 It will also affect them in their work with the community. Being an association makes people trust you,217 said the director of another gay and lesbian organization, KAOS-GL. He speaks from the similar experience this group faced. KAOS-GL and Pembe Hayat, an association that defends the rights of transgender people, faced similar threats of closure in Ankara. KAOS-GL also had initial difficulties becoming an association, registering first as a commercial company in 1999. We had to because we were publishing the KAOS-GL magazine, and the Ankara police came and said a journal had to come from a company.218 Later, in July 2005, KAOS-GL applied to the Ministry of Interior for recognition as a nongovernmental organization. The ministry initially approved the request, but Ankaras deputy governor, Selahattin Ekremoğlu, responded by launching a lawsuit to close the organization. In a letter dated September 15, 2005 the governor informed KAOS-GL of the legal action:219
On October 12, 2005, the Ankara prosecutor Kursat Kayral rejected the governors petition. He explained that the words "gay" and "lesbian" found in KAOS-GL name and charter are everyday language also used in scientific research and clarified that homosexuality does not amount to immorality.221 This decision should be a precedent-setting decision for cases like the one against Lambda Istanbul given that the governors offices accused both organizations using the same legal provisions (article 56 of the Civil Code and article 41 of the Constitution). Pembe Hayat is registered as an association, giving it its own legal personality according to article 59 of the TCK. Senem, one of Pembe Hayats lawyers, recalls that they applied [to become an organization] before the governor in the beginning of July 2006. They [the Governors office] presented a case to the prosecutor in October 2006 claiming that the association was against morality and family structure; they did not specify why.222 The Prosecutor dropped the charges on December 2006. Nevertheless, five months later, in May 2007, the governors office started another administrative procedure against Pembe Hayat, this time accusing it of failing to have its first general council meeting within the time frame established by law.223 We had had our general board meeting and the governor sent an official document saying that there was no problem, explained Hakan, one of Pink Lifes lawyers: There were no legal grounds for a fine. At the end [w]e got fined 500 TRY [US$381], said Senem, one of the lawyers representing Pembe Hayat. She added that when the trial ended the judge came up to me and said if I had an opportunity I would fine you one million Turkish lira; you could see the abhorrence, the disgust on his face.224 Amargi Women Academy, a feminist organization founded in 2001, decided not to register as an association, fearing the harassment it might suffer. According to Pınar Selek, a sociologist and editor of the journal Amargi We are registered as a cooperative. This doesnt fall under the Law on Associations. We didnt register under that law, because when you are an association the governors office checks and oversees everything.225 The language of the Law on Associations poses no express restrictions to the formation of LGBT organizations. However, authorities in Istanbul and Ankara have shown they will use the neutral formulations of the law to restrain what they see as infectious immorality bleeding into political and social life. İdil Işıl Gül, a professor of law at Bilgi University, observes that Authorities see more people [publicly] out, so there is more reaction. Since they are now legal organizations seeking legal recognition, the reaction is also legal [meaning that the authorities attack these organizations through the existing legal norms]. State organs have made it a legal issue, and react in a legal way.226 In some cases, police have actively harassed LGBT activists in their work. In 2001, members of the Ankara polices Balyoz team made a pointed visit to the KAOS-GL offices: They said they were from a special team. When we asked, Are you Balyoz, because everybody had heard of that, they said, Yes.
A harsher incident happened in 2002. The police raided KAOS. This gay guy had been stabbed:
When members explained the group published KAOS-GL, The officer asked us, Why are you publishing this kind of magazine? The police finally left, but threatened to returnand called later to demand more information about the group. Our lawyer had to call them and threaten them with a civil suit, because they were acting outside legal procedure.228 More recently, on April 7, 2008, between 12 and 15 men in street clothes entered the Lambda Istanbul Cultural Center, identifying themselves as members of the Financial and Moral Police. An officer from the City Department of Associations accompanied them. The police presented a warrant, but members of Lambda told Human Rights Watch they were not allowed to review it thoroughly. The officers refused to state the reason for their incursion. Lambdas lawyer later found the warrant was issued under article 227 of the Criminal Code, criminalizing actions that encourage, facilitate or procure a place for prostitution.229 Beyoğlu Prosecutor Serdar Gür had demanded and received the search warrant from the Magistrates' Court of Beyoğlu No. 2. According to the attorney, Lambda had been placed under surveillance since early March. Lambdas lawyer told Human Rights Watch the officers took records of decisions by Lambdas governing board, a list of its members, a register of its movable property, and records of receipts and invoices. The authorities did not make a list of the confiscated material, as ordered by law. Through court actions and police raids, the ambiguous meaning of public morals has become one of the major obstacles for LGBT human rights defenders in Turkey. Although Lambda Istanbul, KAOS-GL, and Pembe Hayat seek explicitly in their charters to protect rights guaranteed in international human rights treaties, the open-ended clauses of articles 41 in the Constitution related to the protection of the family, and of Article 54 in the Law on Associations, allow Turkish authorities to attempt to curb their activities under the elastic rubric of protecting a perpetually vulnerable public and its values. Such action violates the ICCPR230 and the ECHR.231 Under these conventions, states may restrict freedom of association only on certain prescribed grounds such as to uphold national security or public order or to protect public health or morals, and then only in particular circumstances. States are given a "margin of appreciation" in deciding what is "necessary," but the interpretation of "necessary in a democratic society" is relatively strict. Furthermore, the interpretation must take into consideration tolerance and pluralism as basic elements of a democracy, and the fact that democracy does not mean the views of the majority must prevail. It also means that restrictions must be appropriate and proportionate to the legitimate aim pursued. Article 11 of the ECHR sets forth the right to freedom of peaceful assembly and to freedom of association with others... . No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. Article 22 of the ICCPR permits restrictions on freedom of association only in certain defined circumstances: where they are prescribed by law and necessary in a democratic society and for the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Information gathered by Human Rights Watch illustrates how the existence of ambiguous clauses on public morality in Turkish law sets unacceptable obstacles in the path of human rights defenders. Organizations not yet registered, and unpopular causes round which movements are only beginning to form, will be deterred by the promise of similar problems in the future. People trying to access these institutions in need of protection and support, young girls and boys in particular, will also suffer. For instance, due to possible harassment by the police, organizations discourage children from participating.232 D. Obscenity and Free Discussion of Sexuality: Restrictions on ExpressionAuthorities harassment also encroaches on LGBT groups ability to express themselves freely. Police practice has simply reinforced the persistent Turkish official habit of censorship. Provisions in the Constitution, the Law on the Protection of Minors against Harmful Publications, and the Law of the Press allow authorities to stop the distribution of publications, without a court order, for reasons of public order or public morals.233 Administrative officials must inform a judge within 24 hours, and the judge must confirm the decision within 48 hours of the original seizure. Specific articles within the criminal code are also used to restrict freedom of expression. On July 24, 2006, the Ankara police impounded 375 issues of KAOS-GL Magazine before distribution. They accused Umut Güner, editor of the magazine and director of KAOS-GL, under article 226(2) and 11(2) of the TCK.234 There is an article in a penal code about obscenity, said Oya Aydin, KAOS-GL defense attorney [w]hen something happens related to LGBT matters they always put it under this article. The article says you cannot publish obscene material, but what is obscene is never defined.235 The magazine issue in question focused on the relationship between homosexuality and pornography. An article by artist Taner Ceylan, Love without Touch (Dokunmadan Aşk) and the accompanying pictures showing male nudity, drew the police objections.236 In Turkey newspapers have no problems with heterosexuals appearing naked, but they did when appearing in KAOS-GL magazine, so we argued discrimination. We also argued this was not pornography. We told this to the judge.237 On February 28, 2007, Güner was acquitted, with the court holding no offence was committed since police seized the magazine before it was distributed.238 The court file shows no attempt to define the obscene, or any discussion of a distinction between pornography and a critique of pornography. The issue of freedom of expression was not addressed.239 As with public morals, the ambiguity in defining obscenity has been used against organizations aiming at free discussion of issues related to sexuality. Legitimate interference by authorities in the exercise of freedom of expression should be guided by international human rights standards.240 This idea is reiterated in the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR,in addressing concepts such as public health and morals. According to the Principles, a state which invokes public morality as a ground for restriction human rights while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community; the Principles add that the margin of discretion left to states does not apply to the rule of non-discrimination as defined in the Covenant.241 Democracy means free discourse. Freedom of expression applies to unpopular as well as accepted modes of speech; images and ideas that question norms central to a society or stateincluding those around sexuality and genderdeserve particular protection, despite opprobrium. Turkeys progress toward democratic freedom entails an end to censorship and to the repressive regulation of ideas. 177 Article 2, Law on Military Service Act No. 1111 (1927). 178 Turkish Armed Forces Health Ability Regulations. Appendix: List of Illnesses and Disabilities, Article 17.D.3 [Türk Silahlı Kuvvetleri Sağlık Yeteneği Yönetmeliği]. 179 A reference to homosexuality as an "advanced psychological disorder" was mentioned in the case of Mehmet Tarhan in the final decision by the Court of Appeals in August 2005. The decision overturned his prison sentence but recommended that his sexual orientation be determined through the proper examinations. Tarhan refused. The Court of Cassation subsequently ruled that forced physical examination is a violation of human rights and the integrity of the person, but the examinations continue. Human Rights Watch interview with Mehmet Tarhan, conscientious objector, Istanbul, October 2, 2003 and October 18, 2007. Also see: Tolga Korkut, Military Court Defies Medical Science, Bia News, May 4, 2006, http://www.bianet.org/2006/05/01_eng/news78618.htm (accessed January 31, 2008). 180 Human Rights Watch interview with Mehmet Tarhan, conscientious objector, Istanbul, October 2, 2003. For a discussion of the role of the military in constructing masculinity, see Emma Sinclair-Webb, Our Bülent Is Now a Commando: Military Service and Manhood in Turkey, in Mai Ghoussoub and Emma Sinclair-Webb, eds., Imagined Masculinities: Male Identity and Culture in the Modern Middle East (London: Saqi Books, 2000), pp. 65-92. Turkey does not permit conscientious objection. The few people who have attempted to claim conscientious-objector status, on the basis of religious or philosophical conviction, have faced serious persecution or social marginalization as a result. Mehmet Tarhan, a leftist activist who is gay but chose to pursue conscientious objection to voice his pacifism publicly, says, I cant go abroad, I cant take a passport. I cant have a normal job where you pay taxes; the state can close any workplace that hires someone who has escaped the army in this way. I cant vote. I am in a jail where I cannot see its walls. (Human Rights Watch interview with Mehmet Tarhan, conscientious objector, Istanbul, October 2, 2003). His lawyers filed a complaint before the Militarys Prosecutor Office for the abuses Tarhan suffered. They alleged guards slapped Tarhan while telling him, You look like a woman with your [long] hair: we can make you the woman of the solitary confinement [area]. Tarhan has become a symbol of resistance to compulsory military service. On April 8, 2005, he was arrested by police in Izmir and sent to Sivas military prison. While there, he refused to apply for an army discharge on the grounds of his homosexuality, calling it discrimination. He stated that he was beaten severely by other prisoners because of his homosexuality; and that prison authorities did not intervene, and indeed actively encouraged the abuse. Tarhan went on a hunger strike for 28 days, demanding a separate cell to protect him from violence. Despite a court order for his release on June 9, the military continued to detain him. At his trial on August 12, 2005 he was sentenced to a draconian four-year prison term for insubordination before the unit under Article 88 of the Turkish Military Penal Code. He was released after the March 9, 2006, appellate court decision. The military appeals court ruled that he be medically examined to assess his eligibility for military service, according to article 75 of the Criminal Code. The Court also determined the penalty was highly disproportional and asked the lower court to impose a proportionate penalty. The Criminal Court in Sivas later decided that it was not necessary to examine him since the offence was not related to this issue, but was silent on the penalty issue. Tarhan was never examined. In October 2006 the Sivas court imposed a penalty of 25 months in prison. His lawyer appealed and a appeal decision is pending. See Lawyers Call Record Imprisonment for Conscientious Objector Intimidation, Turkish Daily News, August 13, 2005; Complaint presented by Adv. Suna Çoşkun and Senem Doğanoğlu before the 5th Infantry Training Brigade Commandership, Military Prosecutors Office, Sivas, May 23, 2005. In the face of such punishment for claims of conscience, the consequences of being banned from serving in the military for psychosocial illness may seem less serious to many men. 181 Human Rights Watch interview with Kerem, Istanbul, October 2003. 182 Human Rights Watch interview with Yahya, Istanbul, October 9, 2003. 183 Human Rights Watch interview with Can, Istanbul, November 16, 2007. 184 Human Rights Watch interview with Barbaros (name changed), Izmir, October 19, 2003. 185 Human Rights Watch has documented that these types of examinations to detect evidence of homosexuality are not only medically spurious but, conducted without consent, constitute torture. See: Human Rights Watch, In a Time of Torture: The Assault on Justice In Egypts Crackdown on Homosexual Conduct, March 2004 186 In its 2007 mission to Turkey the Working Group on Arbitrary Detention stated that whenever a Government, also for the most legitimate purposes, decides to deprive someone of his or her freedom, international law provides that it needs to do so on a sound legal basis and to provide an opportunity to challenge the deprivation of liberty before a court. It recommended Turkey to enact legislation governing involuntary commitment to psychiatric hospitals. Human Rights Council, Report of the Working Group of Arbitrary Detention, Mission to Turkey, A/HRC/4/40/Add.5, February 7, 2007, paras. 91 and 103. 187 Human Rights Watch interview with A.A. (name withheld), Ankara, November 6, 2007. 188 Human Rights Watch interview with Yahya, Istanbul, October 9, 2003. Much like Turkish law, the 1801 Napoleonic code decriminalized homosexual conduct per se in France but continued to criminalize various criminalize public offenses against decency, a provision which was used against suspected sodomites into the Second Empire, and which created pressure for medico-legal proofs of homosexual conduct. See Victoria Thompson, Creating Boundaries: Homosexuality and the Changing Social Order in France, 1830-1870, and William Penniston, Love and Death in Gay Paris: Homosexuality and Criminality in the 1870s, both in Jeffrey Merrick and Bryant Ragan, eds., Homosexuality in Modern France (New York: Oxford University Press, 1996). 189 The examination appears to reflect the discredited ideas of a 19th-century French forensic doctor, Auguste Ambroise Tardieu (1818-1879), who published his Étude médico-légale sur les attentats aux moeurs (Forensic Study of Assaults against Decency) in 1857. Its blend of scientific tenor and prurient themes made it a bestseller, and it had considerable influence on medical investigations in areasincluding the Ottoman territorieswhere the prestige of French medicine was high. The book laid guidelines for investigating three offenses: public outrages against decency; rape; and pederasty and sodomy, terms it used interchangeably for adult male homosexual acts. Tardieu believed that habitual pederasty left certain signs on the body, the knowledge of which will permit the forensic doctor, in the great majority of cases, to direct with sureness the pursuits which involve public morality to such a high degree. In the case of the passive partner these marks allegedly included an elastic and funnel-shaped anus. Dr. Lorna Martin, professor of forensic pathology at the University of Cape Town, South Africa, calls Tardieus theory of a permanently altered anus bizarre and antiquated rubbish. She adds, It is impossible to detect chronic anal penetration; the only time the [forensic anal] examination could be of any use is for acute non-consensual anal penetration, when certain injuries may be seen. Yet the echoes of Tardieus theories persist in Turkey, marks of a persisting mythology about the physiological effects of homosexual desire. August Ambroise Tardieu, Etude Medico-Legale sur les Attentats aux Moeurs, 3rd ed. (Paris: J. B. Bailliere, 1859), p. 135. For a fuller discussion of Tardieus theories and the forensic examinations conducted on their basis in Egypt, see Human Rights Watch, In a Time of Torture: The Assault on Justice In Egypts Crackdown on Homosexual Conduct, March 2004. 190 Socarides is well-known in the United States as a polemicist against the depathologization of homosexuality; his theories that homosexuality is a curable disease are widely discredited among the U.S. medical profession. 191 Human Rights Watch interview with Deniz Yıldız, Istanbul, October 1, 2003. 192 This is an intravenous ultra-short-acting barbiturate sometimes used during interrogations to weaken the resolve of the subject and make him or her more compliant to pressure. 193 Human Rights Watch interview with Oğuz, Istanbul, October 4, 2003. 194 Human Rights Watch interview with Seyhan, Istanbul, October 17, 2003. 195 Dr. Nevzat Tarhan, former chief of Psychiatry Clinic at Haydarpaşa Training Hospital in GATA (Eski Haydarpaşa GATA Psikiyatri Kliniği Şefi) in Istanbul, where the examinations are often performed, told the press in 2000 that When I was working at GATA we did ask for pictures to put in the file, but not that kind of photographs. I have never witnessed anything like this and did not ask for anything like this from any patient. But he added that, To diagnose homosexuality is not possible with only the word of the person himself. It has to be documented that it is his lifestyle. In these documents, you have to see solid examples related to the persons history. If this person has been in an illegal action and if he has records in the Morality Department of the police, he is asked for these documents; or if he is walking around in transvestite or transsexual clothing, going to the clubs, we ask for the pictures taken there. These are extra documents. Psychiatric clinical examination, and psychometric measurements, and personality tests determine if the patient is gay or not. If what the patient tells clashes with what we discover, usually the decision is that he should perform military service. It is not obligatory in psychiatry to inspect the patient anally. This examination only happens in criminal cases. Some doctors may ask for this examination, but this is their fault of professional standards. I wont recruit you if you prove it, Hürriyet newspaper, June 11, 2000. However, victims of the tests quoted in the same article described being asked to submit photographs of sexual acts. 196 Human Rights Watch interview with A.A. (name withheld), Ankara, November 6, 2007. 197 See Lustig-Prean and Beckett v United Kingdom (Applications nos. 31417/96 and 32377/96), Judgment of September 27,1999, para. 95-103; Smith and Grady v United Kingdom (Applications nos. 33985/96 and 33986/96), Judgement of September 27, 1999, para. 90-105, both available at www.echr.coe.int. 198 Lustig Prean et al. v United Kingdom, para 95. 199 Smith et al. v United Kingdom, para 103. 200 Health professionals cannot turn a blind eye or act in violation of international human rights law. In the report on the Situation of detainees in Guantanamo Bay, the Working Group on Arbitrary Detention, the Special Rapporteur on the Independence of Judges and Lawyers, the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Special Rapporteur on Freedom of Religion or Belief, and the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, stated that health professionals also have some right-to-health responsibilities deriving from international human rights law. It concluded, among other things, that the UN Principles of Medical Ethics apply to all health professionals. Human Rights Commission, 62nd session, E/CN.4/2006/120, February 15, 2006, paras. 68 and 73. 201 Human Rights Watch interview with Ayşe Kayhan, psychiatrist specialist in transgender care, Istanbul, October 2003. 202 Human Rights Watch interview with Can Yaman, Istanbul, October 1, 2003. 203 Human Rights Watch interview with Esme, Istanbul, October 20, 2003. More than half the lesbian and bisexual women we spoke to were sent by their family to a psychologist or psychiatrist. The attitudes described by Esme evidently persist in some doctors; others are more open to issues of sexuality. 204 Human Rights Watch interview with Deniz, Izmir, October 19, 2003. 205 Human Rights Watch interview with Mustafa, Istanbul, October 20, 2003. 206 CRC, article 19(1). 207 Committee on the Rights of the Child, General Comment No. 4, Adolescent Health and Development in the Context of the Convention on the Rights of the Child, 33rd session (2003), paras 10-11 in UN Compilation of General Comments and Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.7, May 12, 2004, p. 324. 208 Law on Associations (No. 2908), available at http://www.legislationline.org/legislation.php?tid=2&lid=7314&less=false (accessed April 25, 2008). However, in this sense some restrictions remain. According to article 4, only people over the age of 18 may an found association. This raises concerns about young peoples ability to found organizations that may provide support to LGBT children. 209 KAOS-GL participated in the May Day labor demonstrations in Ankara in 2001, with its own banner and signs. This was the first time LGBT organizations participated in a public forum. Ali, one of the founders of KAOS-GL, recalled, It was the first time we were visible. We had pink poster boards and flags. All the NGOs and media and labor unions were shocked. Human Rights Watch interview with Ali, Ankara, November 2, 2007. 210 Human Rights Watch interview with Yeşim, Istanbul, November 11, 2007. 211 Lambda Istanbuls lawyer submitted experts opinions showing that the terms lesbian, gay, bisexual, and transgender should not be considered immoral. The judge accepted the opinions and appointed a specialist to analyze their veracity. 212 Article 56 of the Turkish Civil Code states that No association may be founded for purposes against law and morality. 213 Article 41 of the Turkish Constitution states that [t]he family is the foundation of the Turkish society and that [t]he state shall take the necessary measures and establish the necessary organizations to ensure the peace and welfare of the family. 214 Human Rights Watch interview with Governor Mummer Güler, Istanbul, November 13, 2007. 215 Ibid. 216 Human Rights Watch interview with Cihan, Istanbul, October 15, 2003. 217 Human Rights Watch interview with Oya Aydin, KAOS-GL, Ankara, November 8, 2007. 218 Human Rights Watch interview with Umut Güner, KAOS-GL, Ankara, October 12, 2003. 219 Available at http://news.kaosgl.com/item/2005/9/19/establishing-a-gay-and-lesbian-organization-is-against-the-laws-and-ethical-rules-according-to-the-turkish-government (accessed January 28, 2008). 220 The letter was published by KAOS-GL on their website. Available at http://news.kaosgl.com/item/2005/9/19/establishing-a-gay-and-lesbian-organization-is-against-the-laws-and-ethical-rules-according-to-the-turkish-government (accessed April 25, 2008). 221 Emine Kart, Turkyes gays will host global meeting against homophobia, Turkish Daily News, March 5, 2006, www.turkishdailynews.com/tr/article.php?enewsid=37227 (accessed April 21, 2008); Turkish Gay Group Survives Shutdown Attempt, San Francisco Bay Times, www.sfbaytimes.com/index.php?article_id=4228&sec=article (accessed March 23, 2008); Turkish Court Not to Hear Case to Close down Gay Group, UK Gay News, October 12, 2005, http://www.ukgaynews.org.uk/Archive/2005oct/1202.htm (accessed December 8, 2007); Request to ban Turkish gay rights group rejected, Advocate.com, October 13, 2005, http://www.advocate.com/news_detail_ektid21550.asp (accessed December 8, 2007). 222 Human Rights Watch interview with Hakan, Pembe Hayat, Ankara, November 4, 2007. 223 Article 14 of the Law on Associations states, Associations must hold their first general council meeting and establish their organs within six months following the date on which their statute was published in a newspaper. If an association fails to conform to this requirement, the most senior local representative of government shall give a decision for the association to be considered to have wound itself up. 224 Human Rights Watch interview with Senem, Ankara, November 4, 2007. 225 Human Rights Watch interview with Pınar, Istanbul, October 26, 2007. 226 Human Rights Watch interview with Professor İdil Işıl Ödül, Istanbul, October 25, 2007. 227 Human Rights Watch interview with Umut Güner, KAOS-GL, Ankara, October 12, 2003. 228 Ibid. 229 Human Rights Watch interview with Belgin, Istanbul, October 20, 2007. 229 The exact wording of Article 227 is as follows: (1) Any person who encourages a child to become a prostitute, or facilitates prostitution, or shelters a person for this purpose, or acts as go-between during the prostitution of the child, is punished with imprisonment from four years to ten years, and also a punitive fine. (2) Any person who encourages another person to become a prostitute, or facilitates prostitution, or acts as a go-between or provides a place for such a purpose, is punished with imprisonment from two years up to four years, and also a punitive fine. Any act designed to draw on the income of a person engaged in prostitution to earn one's living, totally or partially, is considered encouragement of prostitution. (3) Any person who brings people into the country, or sends groups abroad, for purposes of prostitution is punished according to the provisions of the above subsection. (4) The punishment to be imposed according to the above subsections is doubled in case a person is encouraged to become a prostitute by use of threat or force, or malice, or taking advantage of one's helplessness. (5) The punishment is to be increased by one half in case of commission of offenses listed in the above subsections by a spouse, antecedent, descendant, brother/sister, adoptive parent, guardian, trainer, educator, nurse or any other person responsible for protection and control of a person, or by a public officer or employee by exerting his/her influence. (6) The punishment to be imposed according to the above subsections is increased by one half in case of commission of these offenses within the frame of activities of an organized criminal group. (7) Security precautions specific to legal entities are imposed in case of commission of these offenses by organizations that have legal personality. (8) Any person involved in prostitution is subject to treatment or therapy." 230 Art. 19 (2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Art. 22(2). Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 231 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively. 232 In 2001, the Committee for the Protection of the Rights of the Child manifested its concern that persons under 18 could not join organizations in Turkey. It recommended that the government of Turkey ensured that children could form, join and leave associations freely... . See: Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Turkey, CRC/C/15Add.152, July 9, 2001, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.15.Add.152.En?Opendocument, paras. 37-38 (accessed April 27, 2008). 233 Article 28.6 of the Turkish Constitution states that Periodical and non-periodical publications may be seized by a decision of a judge in cases of ongoing investigation or prosecution of offences prescribed by law, and, in situations where delay could endanger the indivisible integrity of the state with its territory and nation, national security, public order or public morals and for the prevention of offence by order of the competent authority designated by law. The authority issuing the order to confiscate shall notify a competent judge of its decision within twenty-four hours at the latest. The order to confiscate shall become null and void unless upheld by the competent court within forty-eight hours at the latest. Article 25 of the Press Law establishes that [t]he state prosecutor may confiscate three copies for examination at most of all printed matter. Press Law (Law No. 5187), approved on June 9, 2004. 234 Article 226(2) establishes that [a] person who broadcasts or publishes obscene images, printed or audio material or who acts as an intermediary for this purpose shall be sentenced to imprisonment for a term of six months to three years and a judicial fine of up to five thousand days. 235 Human Rights Watch interview with Oya Aydın, KAOS-GL, November 1, 2007. 236 Taner Ceylan, Dokunmadan Ask, in KAOS-GL, Summer 2006, pp. 14-15. The article showed two self-portraits of the artist naked while in an intimate relationship. These paintings had been previously exhibited in Istanbul in the Families Only exhibition in the Karşı Art Gallery in 2003. 237 Human Rights Watch interview with Oya Aydın, KAOS-GL, November 1, 2007. 238 Court Record File No. 20006/580; Trial date 28/02/2007; Session No. 2; Judge: Mehmet Nuri Öztürk 24379; Public Prosecutor: Yücel İldeniz 19205; Clerk: Murat Savaşcı 96494. 239 Ibid. However, the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression recommend to Turkey in his 1997 visit that to fully guarantee freedom of expression, policy measures requiring the courts to explain more explicitly the motivation for any judgment that restricts the right to freedom of opinion and expression and to link such judgments more directly to the obligation on the part of the State to protect the right to freedom of opinion and expression [should be adopted]. Such motivation should include the explicit consideration of the intent, purpose and effect of the opinion expressed. It should furthermore include the explicit consideration of the necessity, purpose, effect and proportionality of the restriction imposed by the courts. Mission to Turkey, Promotion and protection of the right to freedom of opinion and expression, report of the Special Rapporteur, Mr. Abid Hussain, submitted pursuant to Commission on Human Rights resolution 1996/53, Addendum, E/CN.4/1997/31/Add.1, February 11, 1997, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/17656039a505a24780256671004a98ad?Opendocument (accessed March 28, 2008), para. 58. Likewise, this Rapporteur has exalted the need to allow marginalized and vulnerable groups access to media to be able to fully exercise their right to impart information and has expressed that diversity of content ... is a desirable goal that should be encouraged. Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Ambeyi Ligabo, A/HRC/7/14, February 28, 2008,paras. 27 and 28. 240 Article 10 of the European Convention on Human Rights and article 19 of the ICCPR have as main their objective to protect everyones freedom of expression. They provide restrictions, but these must be interpreted in a strict manner. [T]he restrictions must be "provided by law"; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being "necessary" for that State party for one of those purposes. General Comment 10, para. 4. The European Court on Human Rights and the Human Rights Committee have stated that restrictions must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society. In Observer and Guardian v. the United Kingdom, Court said that the adjective necessary implies the existence of a pressing social need. It is not clear in these cases what the pressing social need is, nor has the government made this clear in its arguments for closure. Observer and Guardian v. the United Kingdom (Application No. 13585/88), Judgment November 26, 1991, available at www.echr.coe.int. Meanwhile, Manfred Nowak, an important commentator on the ICCPR, observes that there can be no doubt that every communicable type of subjective idea and opinion, of value-neutral news and information, of commercial advertising, art works, political commentary regardless of how critical, pornography, etc., is protected by Art. 19(2), subject to the permissible limitation in para. 3. It is thus impossible to close out undesirable contents, such as pornography or blasphemy, by restrictively defining the scope of protection. Manfred Nowak, CCPR Commentary (Kehl: N.P. Engel, 1993), pp. 358 and 341. 241 Siracusa Principles 27-28. These principles were developed in 1984 by a panel of 31 international experts who met at Siracusa (Sicily) to adopt a set of interpretations of the limitation clauses set forth in the ICCPR. While they are not international law, they are an important and authoritative guidance as to the meaning of the terms. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Human Rights Quarterly, vol. 7, No. 1, February 1985. |