28/02/2022 | Writer: Benan Molu
The state has the obligation to protect LGBTI+’s against discriminatory behaviors and if they could not protect, to investigate this discriminatory treatment in a way that it would also reveal the motive behind it and positive or negative obligation in terms of charging.
Especially in recent years, the systematic discrimination, hate speeches and hate crimes that have been existing for years against lesbian, gay, bisexual, trans and intersex (LGBTI+) individuals reached up to an unprecedented point with collective and indefinite bans, incriminating even the materials with rainbow themes and with the statements targeting LGBTI+’s that are made personally by top government officials.
Criminal complaints made and lawsuits brought against all these discriminatory speeches and actions predominantly result either in impunity or being rewarded by light sanctions that encourage newer ones. Constitutional Court either impede the decisions of these applications or abstain from giving decisions that confirm that actions were done with the discrimination and hate motives against LGBTI+’s. This leaves Court of Human Rights (ECtHR/Court) as the last resort. Although ECtHR have some points to criticize, they have some decisions that developed in parallel with particularly the developments experienced recently and decisions that can be deemed permanent now. There have been a lot of applications to the Court regarding the violations of rights of LGBTI+’s from other European Council countries in terms of quantity and variety of the application subject but in comparison with the other countries, the rarity of the number of applications to the Court from Turkey and number of decisions given by the Court are remarkable.
Up to now, there is only one Turkish decision that decided violation regarding a discriminatory treatment against LGBTI+’s: The X v. Turkish decision dated 2012 regarding the segregation of gay prisoner in the prison.  There are also decisions regarding LGBTI+ rights – even though no violation of prohibition of discrimination was found – decisions which determined right to respect to privacy and freedom of speech  and other applications notified to the government with the request of plead and that are still at the decision stage.
In addition, in three applications made with the claims that trans applicants have been discriminated, the Court gave three different decisions in 2019, 2020 and 2021 and found the applications inadmissible with the reason that the applications were baseless. Below, after making a brief introduction to the approach of the Court to discrimination prohibition, I will mention the criticisms about these three inadmissibility decisions given to Turkey in recent years and points to take into consideration while making applications in line with these decisions.
A Brief Introduction to Prohibition of Discrimination
Equality principle arranged in the 10th Article of Constitution finds its place in 14th Article of European Convention of Human Rights (ECHR or Convention) as prohibition of discrimination and in the 1st Article of the Protocol numbered Enclosure 12 as general prohibition of discrimination. Since Turkey is not a party of Protocol numbered Enclosure 12, the claim that discrimination prohibition was violated can be made under Article 14 of the Convention.
According to Article 14 of the Convention, “The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
As seen, in the article text, sexual orientation and gender identity are not considered as a base of discrimination but as the authority that is responsible for interpreting and applying the Convention which is a “living document” in accordance with the recent conditions, ECtHR includes sexual orientation and gender identity in the application of prohibition of discrimination which they have developed through court practices. 
There is no separate existence of Article 14 of the Convention. The article in question is applicable only regarding the “utilization of rights and freedoms” that are secured by the Convention and the Protocol. The practice of Article 14 of the Convention does not necessarily require the violation of one of the material rights secured by the Convention. The conditions regarding the case is required and enough to be included in at least one of the provisions of the Convention or the Protocol. 
In order to talk about an intervention/violation within the scope of the prohibition of discrimination, a test with three stages is applied: a) different treatment to individuals in same or similar conditions b) this different treatment having a legitimate purpose and the treatment being proportional c) the purpose aimed to be achieved and the utilized instrument being harmonized.
According to the Court, if the difference in treatment to individuals in same or similar conditions does not have a reasonable or objective justification, in other words, if the different treatment does not pursue a legitimate purpose or there is no reasonable proportion between the utilized methods and purposes aimed to be achieved, the difference is question is deemed discriminatory.
The states have the right to estimate while evaluating whether the similar conditions legitimize different treatment or to what extent legitimize different treatment. If the discriminatory action is related to gender or sexual orientation, the right to estimate given to the State is more limited. However, in these types of situations, the pursued purpose being legitimate and proportional or not being legitimate and proportional should be proven strongly with a precaution to be chosen in accordance with the proportionality principle.
When the established case-law of the Court is looked at, the responsibility of proving does not solely belong to the applicant, it is claimant proving their claim. Within this context, an applicant who claims they have been subjected to discriminatory treatment is obliged to prove that claim with sufficient and persuasive explanations and evidences. However, it is not always too easy to reach the information and documents that will prove the claim of discrimination and to prove such claim. If the applicants can submit the motivations and evidences that prove their claims even at a minimum level, the responsibility to prove will shift and proving there has been no different treatment or treatment has based on the legitimate reasons will be transferred to the public authorities that have exhibited the different treatment. The Court evaluates all the evidences submitted to them without looking at the resource and when needed, they can obtain documents ex-officio as well.
Three inadmissibility decisions given since 2019 against the claims of the transsexual applicants being subjected to discrimination
Solmaz vs. Turkey Application
The application in question is based on the claim that the applicant was forced to leave a night club during a concert in 2012 due to being transsexual and therefore, the prohibition of discrimination arranged in Article 14 of the Convention in conjunction with right to respect private life arranged in Article 8 of the Convention was violated.
The applicant claimed that they went to the night club one night prior to the concert, the employee showed them the club and the lodge and bought the ticket upon this bur that on the day of the concert, they were forced to leave the club with the reason that “they do not match the concept of the club” and only half of their ticket price was refunded.
The investigation was started regarding the club pursuant to Article 122 of Turkish Penal Code (TCK), a great number of witnesses were listened during the case that was opened at Izmir 4th Magistrate’s Court, the club personnel stated that the applicant was asked to leave because they were intoxicated and disturbing other customers, that there was no discriminatory action and otherwise they would not give permission to them to make reservation the day before; witnesses of the applicant on the other hand did not accept the actions that would disturb other customers and confirmed that they were forced to leave due to not being in conformity with the criteria of the club.
Although there were different statements about applicant being intoxicated and about the appearance of the applicant, in accordance with the witness reports that were received, 4th Magistrate’s Court uncharged the club personnel with the reason that there was no sufficient evidence supporting the ascribed crime occurred.
Constitutional Court declined the application stating that there was no element that would support the statements of the applicant or show to what extent the intervention was made directed to their private life.
ECtHR found the application inadmissible stating that in the conditions specific to the existing lawsuit, the national authorities cannot be blamed for not fulfilling their obligation pursuant to Article 14 of prohibition of discrimination together with Article 8 of the Convention that arranges right to respect private life.
While coming to this conclusion, the Court considered the facts that investigation was started after the complaint of the applicant, witness reports were received within the scope of this investigation, the judgment was made under article 122 of TCK and the applicant was represented by a lawyer, elements sufficient enough to charge the defendant did not occur after adversarial proceedings in which the witnesses were listened, possibility to object this decision existed and Constitutional Court made a detailed assessment.
The state has the obligation to protect LGBTI+’s against discriminatory behaviors and if they could not protect, to investigate this discriminatory treatment in a way that it would also reveal the motive behind it and positive or negative obligation in terms of charging.
Even though ECtHR defined the obligation to investigate in their case law “not as a purpose, but as a means obligation” and within this context, even though to determine and charge the perpetrators was not accepted as a necessity if all the steps expected from them were taken, ECtHR imposes to the party states the responsibility to determine whether or not there was any motive including a hatred or prejudice based on ethnicity, religion or sexual orientation that incites grudge and animosity emotions.
Decision of acquittal by ignoring the witness reports that opposed the applicant got intoxicated and disturbed customers and even if there was no such motive, without making an efficient investigation to determine whether or not the defendant treated with a discriminatory motive against the applicant was accepted legitimate because the witnesses were listened, applicant was represented by their lawyer and Constitutional Court reviewed the application. On the other hand, applicant being represented by lawyer or having the right to appeal to Constitutional Court have nothing to do with the efficiency of the investigation.
The Court made a similar evaluation regarding the arrests of the journalists in recent years while reviewing the claims that Murat Sabuncu and others, Ahmet Şık and Ahmet Altan decisions were given due to political reasons and considered the facts that applicants could appeal the decisions that were given and Constitutional Court made an assessment.
These examples unfortunately show that, contrary to their own settled court law, the Court abstains from looking beneath the surface and making a real assessment.
Şimşek, Andiç ve Boğatekin vs Turkey Application
The application in question was regarding imposing 72 TL and 82 TL fines to the applicants on February and April 2012 with the reason that “they ran to the road by trying to stop the cars and endangering the road safety”. The applicants claimed that those penalty fines were against law because they were fined only because they were transsexuals and there was no evidence that would prove that they made noises and endangered traffic.
ECtHR found the application lacking a clear base stating that the penalty fines were low, applicants did not suffer “a significant loss” and there was no claim that could be defended regarding discrimination based on gender identity.
According to the Court, “significant damage” term is based on the idea that violation of a right should reach a weight threshold that would legitimize the evaluation of an international court. Evaluation of this threshold is relative due to its nature and it depends on the conditions of the lawsuit like financial effect of the dispute issue or subject of the lawsuit according to the applicant.
The applicant claimed that the fines not being excessive does not have any kind of importance as these fines are sufficiently considerable for sex labors who do not have the right to be employed like everyone else. Nevertheless, the Court stated that this claimed was not supported well enough, financial damage of the applicants was still low, it could not be presented that how the fines would have a negative effect on personal or professional lives of the applicants and it was not possible to turn these fines into a precaution that would deprive of freedom in case they did not paid such fines. In addition, the Court stated that they did not see a manner or prejudice in police reports that would be attributed to the police regarding the sexual identities or activities of the applicants. However, ECtHR does not look at the amount of the penalty fine that is given when it comes to protection of fundamental rights and freedoms. Because previously in the lawsuit of the public officers who were fined due to participating union activities, violation of freedom of speech, assembly and organization was decided.
As is known, there is also a decision given by the Constitutional Court regarding the same issue. Emphasizing principle of equality and respect to private life by stating that main purpose of application of administrative fine with saying transsexual applicant exhibited behaviors that endangered traffic was to suppress the sexual identity and Cemal Duğan application regarding the claims that his individual freedom and safety was violated due to being detained unfairly by the law enforcement officers: Constitutional Court rejected these violation claims by finding them lacking clear bases. As the reason of not violating the prohibition of discrimination in terms of right to respect private life, they said as follows:
“47. (…) Traffic rules are binding for everyone whatever the sexual orientation or the purpose of being on the vehicle road is, in case individuals endanger traffic, it is only natural to apply provisions of the Law No 2918. No type of solid information or finding that would help proving that applicant was treated discriminatorily due to their transvestite identity was encountered. In this respect, it is not seen possible to say that the process was established by considering solely the sexual orientation of the applicant in concrete case.”
While it is not easy to prove discrimination claim, it becomes more difficult to prove the claim in this case where the sanction is determined based only on the police report. Because in a case where it is impossible for the applicants to submit a written evidence and it is unrealistic to expect for the persons or institutions that exhibit a discriminatory behavior to state in written that they acted with such a motive, Constitutional Court grounding on the report that was prepared by the authorities who were held responsible and mentioning that there is no solid information or finding makes the allocating the obligation to prove inapplicable and proving the discrimination is almost made impossible.
Thus, in such an application, the approach to be followed by Constitutional Court and Court of Human Rights is presented in the annotation written by Constitutional Court judge Engin Yıldırım to the said decision. According to Yıldırım, taking applicant for whom no proceeding was made regarding prostitution into the police center to prevent their behaviors endangering the traffic, making them pay administrative fine with the claim of endangering traffic, taking them to the police center, making them wait there for one hour and taking them into custody is not a practice used for everyone. When it is also considered that there was no information or finding regarding the claim that there was prostitution in the report and ‘it is not easy to prove discrimination’ in this situation, this application shows that applicant was subjected to discrimination.
Lambdaİstanbul LGBTI vs. Turkey Application
The application mentions the building of the association being watched by the police and making search in the association upon an information that LAMDA made their building available to ‘transvestites’ for prostitution purposes and the association received money by pimping out ‘transvestites. According to the report that was issued by the police and not annotated by the applicant president of association and the employees, the search was made in company with an employee of the association, many documents being one document record book, one minute book, one plant ledger, one expenditure book, one expense receipt, one certificate of receipt record book, one member registration book, one file including documents of the association and one account book were seized and no harm or damage occurred during the research.
The decision was objected by the association with the reason that the research and seizure were unlawful and this objection was declined with the reason that decision was in compliance with the regulation and law. Furthermore, decision of non-prosecution was given about the association.
Applicant association brought articles 8, 11 and 14 of the Convention forward and applied to ECtHR by complaining that the association was subjected to search discriminatory and unlawful proceeding depending on the entrance of transsexual individuals to the building and seizure of their documents and as a result, the concerns of their members increased, LGBTI individuals abstained from entering the association building and their activities were prevented.
ECtHR declined the application finding the application lacking clear base due to not finding any element that would sufficiently support their claims that they were subjected to discriminatory treatment and their activities were prevented.
The applicants have not taken the minutes during the search activity regarding the search being unlawful or any type of damage has occurred, they have not stated in front of any national authorities in any stage that how their association activities, themselves and their members were affected by this search, they have not submitted any document or information that would support or prove the claim that their number of members decreased, they had to postpone some of their activities or moved to another place and they have not opened a case against the officers of Provincial Directorate of Associations. For this reason, according to the Court, there is no element that would make someone think that the search action in question did not constitute a reasonable proportionate method with following the aimed legitimate purpose.
As we did not see the application form and file, if we make an assessment over the determinations presented solely in Court decision, the conclusion that the Court reached seems appropriate.
However, search and seizure measures aimed at LGBTI+ associations always cannot be overcome this easily. At this point, it will be useful to remind you of the decision of violation against the bust aimed at LGBTI+ rights association in Georgia named Inclusive Foundation.
In the decision in question, the police busted the LGBTI association without any search warrant or any other ruling, seized the cell phones of the persons inside at the time of bust, abused them by saying “sick”, “pervert”, “lesbian”, made nude search of almost everyone, threatened to burn the building and revealing the sexual orientations of the persons who were there to public. By considering the facts that the persons there at that time were subjected to such treatment for the police to degrade them due to their sexual orientations, criminal complaint that was made in 2010 was still not concluded and the discriminatory attitude demonstrated by the police during the bust was not evaluated by the investigation authorities, the Court decided that prohibition of discrimination was violated in connection with the prohibition of inhuman treatment.
Points that will strengthen the proof of discrimination claim
The first issue that should primarily be taken into consideration is the duration of the termination of the Court. Şimşek and others application was made in 2012, Lambda application was made in 2008 but resolved respectively in 2020 and 2021. Ever increasing workload of the Court and applications not being in application group that should evaluated promptly like imprisonment prolong the decision making duration of the applications but it is unacceptable for a Court that does not accept some of the decisions given by local courts in shorter times than these durations to give such late decisions.
On the other hand, we see that Solmaz application was resolved in 2019, in other words, two years after the application. Despite the increasing workload, the Court made some structural changes regarding notification of the Government and resolving some of the applications and they continue to make changes.
Announcing on May 30th 2017 that they made changes in the “priority policy” they introduced in 2009 and that the change would be valid as of May 22nd 2017, ECtHR decided that in addition to applications that may cause significant results in domestic law and European law and applications that have not yet been reviewed by the Court, imprisonment applications that would deprive people of freedom due to usage of a right or freedom arranged by the Court will also be reviewed primarily.
Finally, the Court announced on March 17th 2021 that they developed a new strategy for a “more focused and effective reviewing” process. With this new strategy that aims to improve the priority policy that was accepted in 2009 and changed in 2017, the Court announced that they will review the cases they called “influence cases” in case the cases meet the criteria like “result of the case has the possibility to change or clarify the international or national regulation or practice, the case concerns ethical or social issues, the case presents new or important issues in terms of human rights law, the case does not have significant media attention and/or the case is politically sensitive.”
Despite the range and commonness of the human rights violations in Turkey aimed at LGBTI+’s which have been increasing more and more particularly in recent years, with the effect of opening the way of making personal applications to Constitutional Court, there are still few applications before ECtHR.
While making an application, it will be beneficial to request priority by explaining both how the violation of the right affected the applicant and how the application will affect not only the applicant but also the LGBTI+ community in Turkey and by mentioning policy change dated 2017 and 2021.
More importantly, the difficulty of proving is submitting the data that both exhibits the discrimination claim and is acceptable by the Court. When we look at the case law of the Court, in comparison with the groups that are subjected to different types of violence and discriminations like disabled people or women, we can say that when it comes to LGBTI+’s, they more inclined to give decision of violation from prohibition of discrimination. However, in order to attain a positive result here, we have to give up relying on the assumption that the discriminatory manner that is obvious to us is also known by the Court at least as much as we do.
Since we do not see the application forms and trial files, we can make evaluation only in accordance with the information mentioned in the Court decision but when above mentioned decisions are looked at, while the Court finds the applications unacceptable, they both mention the importance of proving responsibility and show us the way by emphasizing “actions and events that were not covered in the complaints submitted to the Court were addressed in application form, some of the events occurred a couple of years after the complaint was submitted”; “no type of information or document that would support or prove such claim was submitted”; “it could not be clarified that how applicants were affected by these interventions personally or professionally, how these interventions have caused a negative effect on their lives could not be presented”; “no kind of attitude or prejudice that would be attributed to the police regarding the sexual identities or activities of the applicants could be shown”; “claims could not be supported sufficiently”.
In proving the discrimination claims; the views, statistics and reports issued by the national or international institutions working regarding the application subject during – before and after – the events have occurred play an important role as supportive evidences. Particularly the comprehensive studies made by non-governmental organizations like SPOD, Koas-GL, ILGA Europe about hate speech and discrimination will make it easier for the applicant to convince the Court while presenting that discrimination in question is not specific to applicant alone and aimed generally at LGBTI+’s. the point that should be taken into consideration here is the fact that mainly the reports regarding the event that is subject of the application and the period the violation occurred are given a place.
Again, the reports and explanations that are published by the individuals who follow the announcements of the Court closely like Commissioner for Human Rights of the Council of Europe or special reporters of United Nations can be instructive for the Court especially regarding the issues that have not been decided as violations yet.
After submission of the application to the Government, if institutions like SPOD, Kaos-GL, ILGA Europe request to submit a third party view to the application and if this request is accepted, it will be more effective for these institutions to submit a view to the Court based on case law and statistics. Since the institutions have a short time period to request to submit a third party view after the Government is notified, informing the institutions about this application and this intention while making the application will ease the process.
Translation: Vahap Karakuş
* This article is prepared within the scope of Strengthening Advocacy for Equal Rights Project supported by European Union. This however does not mean that this article reflects the official point of view of EU.
Tags: human rights