Human Rights

Turkish Constitutional Court: Referring gays as ‘perverse’ is hate speech

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