Slaughter of Trans People Goes on Unabated As Turkey Debates Hate Crimes

 

It is perhaps ironic that one of the few successful exports of Turkey to the wider world, although amazingly little known in the country itself, is the eccentric and fun crime fiction series by Mehmet Murat Somer, which features the transvestite Burçak Veral as the larger than life amateur sleuth, while, at once, the very same country appears to top all 47 Council of Europe states (which include Russia and most of the former Soviet constituent parts) in terms of hate crimes against “trans” people. (Transsexual is somewhat misleading for mixing sexual orientation in the matter. Transgender, on the other hand, which gets it right, because the issue is one of gender identity, rather than sexual orientation, is little used. And transvestite is the person who has not been through a gender re-assignment operation. Trans people, used more and more also in Turkey, seems therefore to be an ideal compromise. Hence the term used in what follows.)

 

The number of trans people killed in Turkey in hate crimes from 2008 to 2012 is 31. They were all sex workers, as ordinary employment is firmly shut to them and a roof under which they could take shelter as a personal abode invariably means a very high rent, if possible at all.

 

Right to life is one of the fundamental rights protected in the European Convention on Human Rights, an international agreement that is not only the law of the land in Turkey, but also the supreme law to be applied when there is incompatibility with the domestic legislation (Turkish Constitution, Article 90). According to Article 2 of the Convention, in addition to the general commitment by the public authority to respect life, states parties are also under obligation to adopt all measures necessary to prevent the violation of this right by private persons. In the event of a possible violation, the obligation is to conduct a proper investigation into it and in turn identify and punish the culprit or culprits, without delay.

 

In the face of this clear dictate of the provision, urging domestic measures to put a stop to the killings (in this case, the hate killings of trans people), Turkish courts have been doing their best, on the contrary, for effective impunity of murderers from punishment. As articulated in the latest (draft) report of the European Commission on Turkey’s progress, in the year 2013:

 

“Violence against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons continued. Hate attacks and hate speech against homosexuals increased. Twelve LGBTI hate murders were reported in Turkey, and several lynching attempts and incidents of torture, rape, ill-treatment, domestic violence, harassment, and cyber-attacks against LGBTIs. There was repeated application by the judiciary of the principle of ‘undue provocation’ and reduced sentences due to the ‘good behaviour’ of perpetrators of crimes against LGBTI persons. There were increasing concerns that shortcomings in the investigation and prosecution of crimes against people of a different sexual orientation or gender identity lead to impunity for the perpetrators.”

 

The “undue provocation (haksız tahrik),” invoked by Turkish courts to deliver for the murderers as light a sentence as possible, assumes that the murderer was provoked: the killer had, in short, a good or at least understandable reason for the deed. Further, there is always the “good behaviour (iyi hâl)” clause for additional mercy for the murderer. (For the pervasive anti-LGBTI bias in the judiciary, see this.)

 

Incidentally, Turkey is not only under obligation fully to implement Article 2 of the European Convention on Human Rights, but also upholds decisions, policies and principles that emanate from Turkey’s relationship with two regional organizations: the European Union (of which the European Commission cited above is an organ) and the Organization for Security and Cooperation in Europe (OSCE). Turkey aspires to be a member in the former, and is a member with the latter already.

 

The main commitment Turkey is expected to fulfill in this regard is to introduce to the domestic normative framework some anti-hate crime legislation that is much needed. That is, rather than treating hate in the community towards trans people as “provoked,” therefore at least partly justified, Turkey should by contrast make these crimes costlier (much, much costlier) to perpetrators for involving an element of hatred towards the very “identity” of the victim.

 

A hate law as such typically gives domestic authorities special impetus, greater power and adequate resources to fight hate crimes, in addition to the greater deterrence brought about by increased penalties for the offences.

 

But, as known, there are also arguments against hate crimes, voiced in Turkey recently by Gülay Göktürk, a prominent liberal journalist, contributing to the on-going debate in Turkey. In this view, a hate crime law not only punishes an act but possibly also a specific viewpoint that is behind the act. For instance, when a head-scarfed pious woman in Turkey refers to those without headscarf as “filthy,” this may be considered as unfair and distasteful, but there is also a moral or religious idea expressed, which should perhaps receive protection under the principle of the freedom of speech. What is more, the notion of hate crimes can be asserted to punish what is mere “thought,” accompanying the act, even before it becomes manifest as speech.

 

Yet, on the other side of the argument, a hate crime is obviously a special type of crime, for two basic reasons. First, it shakes the very core of a person’s being for targeting identity, which is, in most cases, not even left to the choice of the individual who is the victim. Further, it is not only committed against an individual as such but also against a community, hence with much graver consequences. At the receiving end of the treatment, feeling the cumulative effects, that is, is not one single individual alone, but the larger community, which will, one way or another, experience the unpleasant repercussions of each offence.

 

Beyond this, it should certainly be added, however, that in tackling hate crimes, especially “hate speech” as a specific form of this offence, care should be taken not to create new “blasphemy” laws – an overblown form of political correctness that will greatly diminish the precious scope of the freedom of expression. Therefore, the criterion in regulating it should perhaps privilege the point as to whether or not the speech in question is the kind that may lead, or has led, to “hate crime” in the specific society, similar perhaps to the condition in the Turkish Criminal Code, Article 216(3): if it disrupts public peace – provided that the condition is genuinely assessed and taken into account (see the case against Fazıl Say on this).

 

To convey this idea through a particularly provocative example, a speech that targets religion in Turkey (the way Fazıl Say’s did) should be protected, for it is hardly likely to lead to a crime against the overwhelming, pious majority, while speech inciting hatred against, say, the LGBTI people, who are but tiny and vulnerable minorities, should perhaps be criminalized. As for hate crimes that are physically manifest, clearly all should be punished with the added weight, be it against religion, gender, or sexual orientation.

 

What in effect happens in Turkey, on the other hand, is the exact opposite: you shouldn’t hurt religious feelings of people (which means the Muslim majority, not the Christians or Jews), it is a no-go area, but these extremely sensitive people should never feel restrained themselves in expressing their religious zeal against, say, gay people.

 

An anti-hate crime law has been promised by the Turkish government as part of the recent “democratising package” (declared on September 30, 2013), as the government must find it increasingly more embarrassing that Turkey is one of the few states in the 47-member Council of Europe without anti-hate legislation, never mind the fact that Turkey is also under obligation to introduce the very same measure by international law.

 

The latest news on this forthcoming legislation does not; however, seem to be all that encouraging. The draft law that has been submitted to the Cabinet of Ministers, which will later end up in the parliament, has inexplicably left out of the crimes designated as “hate crimes” those that are motivated by bias against a specific sexual orientation, ethnic identity, and nationality. (A behind-the-scenes account of the turn of events leading to the draft legislation is here.)

 

What is the new law going to protect then? Possibly religious values, which are already protected – indeed, more jealously protected perhaps than they actually should.

 

Hate crime as a term was first used by the OSCE at the 2003 Ministerial Council Meeting in Maastricht. This organisation has since brought the member states (totalling 57 with Turkey) to undertake a set of commitments towards an efficient control of hate crimes, from legislation to measures towards encouraging victims to report crimes, from psychological counselling of the victims to the training of public employees interacting with the victims. (See, in particular, the decisions adopted at the Ministerial Council in Athens, in 2009.)

 

Although Turkey has had no law on hate crimes, not ever; according to the most recent report by the OSCE in 2011, possibly communicated to the organization by Turkey itself, Turkey is busy combating hate crimes via such punishable offences as “incitement to hatred” and “discrimination.” Turkey, the report indicates, sentenced 242 cases in 2009; 297 in 2010; and 17 in 2011 (628 still being prosecuted for the year).

 

Yes, so many criminal convictions in Turkey, punishing hate crimes!

 

Yet, in the same report, when you look at the statistics about the incidents recorded by the police; miraculously, Turkey seems to have had no incidents! Zilch.

 

For a comparison, in the same report, Sweden has 5493 incidents communicated to the police only for the year 2011. This number is 5139 in Sweden for the year 2010. Yet, again, miraculously, out of thousands of police cases in Sweden in 2010, there is not one single conviction. Which, I suppose, means that minorities in Sweden are complaint-happy when it comes to hate crimes: they go right to the police, even if they are only slightly bothered, and whatever they state there as a complaint is taken down and processed.

 

While in Turkey, there is zero incident reported to the police in the same year (2010), but there are 297 court sentences!

 

What does that mean? This possibly means that, in Turkey, either (a) minorities find the entire thing insignificant and do not go and report to the police hate crimes and discriminatory treatment they experience from time to time, or (b) minorities are far from being encouraged to report such crimes, or perhaps, just the other way around, they are somehow frightened to report, so they do not go to the police; or, finally, (c) as the case may be, people do go to the police, but such complaints simply fall on deaf ears. (On hate crimes in Turkey more on the factual side, see this.)

 

But what about those 297 sentences delivered by Turkish courts in 2010 alone? All of these cases seem to have been initiated by public prosecutors in Turkey in the absence of complaints by private persons made to the police. These, in other words, are not sentences protecting some concrete victims of hate and discrimination, such as a Kurd blatantly disfavoured by a state agency, an insulted Jew, or a harassed gay person. 

 

So what are these sentences protecting? All or at least most of them are probably protecting the Turkish sate against political dissenters, such as the Kurdish political opposition, or perhaps against someone like Hrant Dink, the Turkish-Armenian journalist who was assassinated following a court sentence in which he was claimed to have insulted Turks.