Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Turkey LGBTI Resources

(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

According to Article 10 of the Turkish Constitution everyone is equal before the law and discrimination is prohibited on several grounds. However, the constitution does not explicitly protect LGBTI people from discrimination on the basis of sexual orientation and gender identity. In recent years the government has been pushed to include sexual orientation within the scope of Art. 10. The term was included in an early draft of an anti-discrimination bill in Parliament in 2005, but ultimately dropped.  

Article 90 of the Constitution stipulates that 'international agreements duly put into effect have the force of law'. In case of conflict, international treaties to which Turkey is party should take precedence over domestic law. In March 2012 Turkey became the first country to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence, which explicitly includes sexual orientation and gender identity as categories of non-discrimination under Art. 4(3). The protection of the rights to freedom of expression and association and the prohibition of discrimination based on sexual orientation are covered by Articles 2(1), 3 and 26 of the International Covenant on Civil and Political Rights and Articles 3, 8, 10, 14 of the European Convention on Human Rights, which Turkey has ratified. Turkey has signed but not ratified Protocol No. 12 to the European Convention on Human Rights. Article 1 of the Protocol stipulates freedom from discrimination and obliges public authorities not to discriminate. Moreover, Turkey has obligations under the International Covenant of Economic, Social and Cultural Rights. General Comment 20 prohibits discrimination on grounds of sexual orientation and gender identity.  Considering the specific international obligations to which Turkey is bound, it follows that  the government should theoretically include the protection of LGBTI persons under Article 90 of its Constitution or equivalent domestic provisions.

In June 2005, the new Turkish Penal Code came into force. Equality before the law is enshrined in Article 3 of the Turkish Penal Code. Discrimination is banned under Article 122 of the Penal Code, and Article 216 of the Penal Code prohibits provocation to hatred based on social class, religion, race, sect, or ethnicity. However, LGBTI persons are not given specific protection. Although same-sex sexual activity is legal in Turkey, Article 225 and 226 of the Penal Code on 'obscenity' and 'indecent behaviour' have been used regularly by prosecutors and judges against LGBTI persons.  Due to the unclear criteria of the wording 'unjust act' in Article 29 of the Turkish Penal Code, judges have repeatedly used Article 29 for reducing the sentences of the individuals who have been found guilty of killing LGBTI persons.

The First Turkish Civil Code was adopted from Switzerland in 1926. In 2002, a new version of the Civil Code (no. 4721) was enacted. Articles 47, 56 and 89 of the Civil Code provide for the closure of associations for allegedly violating public morals. This has been used against LGBTI associations such as Lambda Istanbul, Black Pink Triangle, Pembe Hayat, Kaos-GL and other human rights NGOs. In November 2008 Lambda Istanbul won the appeal against its closure. Meanwhile, the charges against Kaos GL (September 2005) and Pink Life (July 2006) in Ankara were dropped. In the case of Black Pink Triangle Association the local court ruled against the closure in April 2010.

Article 40 of the Turkish Civil Code 2002 provides transgender people the right to change their sex  in the official register after sex reassignment surgery. Afterwards, trans persons can apply for a pink card reflecting their self-identified gender. However, same-sex relationships are not legally recognized, making it difficult for same-sex couples to enjoy the same legal rights as different-sex married couples, such as tax breaks and inheritance rights.

Homosexuality is still legally considered to be a mental health disorder in Turkey. Consequently, homosexual men are exempted from military service. According to the 2013 Accession Report on Sexual Orientation and Gender Identity, the Medical Competence Regulation in Turkey still refers to homosexuality and trans identity as illnesses.

Every year Turkey receives large numbers of LGBTI refugees and asylum seekers from Iran, Afghanistan and other neighbouring countries. However, Turkey maintains a geographical limitation to the applicability of the Refugee Convention, making them ineligible for refugee status. Consequently, UNHCR is responsible for their protection. Asylum-seekers have to demonstrate that they belong to the 'particular social group' of LGBTI persons and that they are persecuted on this ground, both of which are difficult to prove. Asylum-seekers who are being persecuted for reasons related to their sexual orientation or gender identity who want to seek asylum in European and North American countries often have to wait in Turkey for months or even years before being able to submit their application.

In 2013 an important step took place towards the protection of asylum seekers with the adoption of the 'Law on Foreigners and International Protection' (Yabancılar ve Uluslararası Koroma Kanunu). If Turkey were to recognise sexual orientation in its constitution then this law could also protect LGBTI foreigners. 

 

CASE LAW

Halat v. Turkey, Application No. 23607/08, Council of Europe: European Court of Human Rights, 8 Nov 2011. This is a case about a trans woman who suffered physical and psychological abuse by a police officer. After eight years of judicial proceedings the judges ruled that Article 3 of the European Convention on Human Rights (ECHR) was violated in regards to ineffective investigation carried out by the investigative officers.

X v. Turkey, Application No.24626/09, Council of Europe: European Court of Human Rights, 9 October 2012. This is a case about a homosexual prisoner who was kept in isolation for nearly a year, allegedly in order to protect other inmates. The European Court of Human Rights ruled that Article 3 ECHRwas violated. This was the first time in ECHR history where Article 3 was used in relation to discrimination based on sexual orientation.

MS (Risk - Homosexual) Turkey v. Secretary of State for the Home Department, CG [2002] UKIAT 05654, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 6 December 2002. This appeal was dismissed and the appellant returned to Turkey. The Tribunal found that there may be risk of discrimination but no real threat of persecution to the appellant when returned to Turkey, despite the evidence that the police subjected him to rape. This case is no longer regarded as providing country guidance.

RRT Case No. 1208496, [2012] RRTA 1144, Australia: Refugee Review Tribunal, 24 December 2012. This is the case of a gay applicant subjected to serious assault on him and his partner by the community, police officers, family and friends, forcing them to flee to Australia. The Tribunal was satisfied with the credibility of the evidence proving his sexual orientation, and found that the applicant would not be safe in any area of Turkey if returned. Thus, the Tribunal granted the applicant protection under the Refugee Convention.  

Erduran v. Canada (Minister of Citizenship and Immigration) , 2011 FC 1287, Canada: Federal Court, 10 November 2011 This is the case of a Turkish citizen who claimed protection on several grounds. Firstly, he feared persecution due to his refusal to join the military service in Turkey. Secondly, he feared persecution due to his sexual orientation, and thirdly due to his Kurdish identity.

KAOS GL v. Turkey, Case No 4982/07, Council of Europe: European Court of Human Rights This case concerns the seizure of the LGBT-magazine KAOS GL. The authorities prosecuted the editor, claiming that the publication was obscene according to the Turkish Criminal Code. However, the applicants argued that their rights to freedom of speech and prohibition of discrimination were being violated under Article 10 and 14 of the European Convention on Human Rights. In addition, University of California Berkeley School of Law and Human Rights Watch intervened to raise concerns regarding the obligations of states to protect the rights of LGBTI people in accordance with Article 10 of the ECHR.

 

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

Although same-sex couples do not have the right to marry, the first same-sex marriage took place in Istanbul on 2nd September 2014.

According to Amnesty International, state officials often target LGBTI individuals due to their sexual orientation, and the harassment causes difficulties in accessing public services such as support for housing and work. In addition, blood donations from homosexuals are not accepted by the Turkish Red Crescent as they are ranked as a risk group in terms of blood donations. According to a report submitted to the Human Rights Committee there have been a series of human rights violations of LGBTI people in Turkey, including the State Minister for Women and Family issues who stated in March 2010 that homosexuality is a 'biological disorder' and a 'sickness'.

Istanbul has the largest population of transgender women in Turkey and the authorities have progressively forced transgender women out of particular areas, using renewal land projects such as the Cabinet decision 2006/10172, published in the Official Gazette 28 March 2006. The decision grants local authorities special powers to gain possession of the buildings.

The report 'Unsafe Haven' published by Helsinki Citizen’s Assembly and ORAM states that LGBTI refugees were exposed to violence, discrimination in the workplace, inaccessible health care, barriers to social assistance and a hostile educational environment. Furthermore LGBTI refugees in Turkey face violence and harassment by the local population.

According to several reports on Human Rights Violations Based on Sexual Orientation and Gender Identity, there have been a number of hate crimes committed against the LGBTI community in Turkey. These are also highlighted in detail in the ILGA Europe Annual Review 2013. LGBTI persons reported to amnesty international that they have no faith in the protection mechanism from the authorities and find that crimes based on sexual orientation and gender identity are not prosecuted. In 2008, Ahmet Yildiz was killed by his father Yahya Yildi. The case is discussed by the media as the 'first homosexual honour killing' in Turkey, but this should not distract from the fact that many others have died without the public taking notice. The case of Ahmet Yildiz shows the state's failure to respond to violence based on an individual’s sexual orientation or gender identity. Ahmet Yildiz filed a criminal complaint requesting protection given the threats from his family members, but it was ignored by the authorities.

A 2008 Human Rights Watch report provides detailed accounts of homophobic violence and discrimination by police officials.  Gay men suffer repeated harassment. Lesbian and bisexual women fear family violence in reaction to their alleged violation of 'honour' and 'custom'. Transgender people experience state violence, abuse, and harassment, as emphasized in a report on Human Rights Violations Based on Sexual Orientation and Gender Identity. Undercover police officers belonging to the Balyoz (Hammer) Team behave violently towards transgender individuals.

There are a number of NGOs supporting LGBTI persons in Turkey.The Helsinki Citizens Assembly is the leading NGO on issues concerning LGBTI asylum-seekers and refugees in Turkey. Kaos GL (Kaos Gay and Lesbian Cultural Researches and Solidarity Association) is a Turkish LGBT rights organization based in Ankara. The organisation provides legal assistance to LGBT asylum seekers and helps in promoting the rights and informing the public about issues related to LGBT rights. Lambda Istanbul is a LGBT rights organization located in Istanbul. The organisation  supports LGBT migrants and asylum seekers, and advocates on issues concerning LGBT rights. LGBTI News Turkey is a group of volunteer-translators dedicated to providing English translations and sources on lesbian, gay, bisexual, transgender and intersex (LGBTI) issues in Turkey for journalists, activists, scholars and the general public.

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

 

Kaos Gay and Lesbian Cultural Research and Solidarity (Kaos GL) Association

Address:     GMK Bulvarı 29/12 Kızılay Ankara
Website:      www.kaosgl.org
Telephone: +90 312 230 0358
Email:         refugeeatkaosgl [dot] org
Contact:     Hayriye Kara

Kaos GL is providing legal and social assistance to LGBT refugees since 2007. Kaos GL conducts refugee activities in the context of human rights monitoring, reporting and legal support. This support is given as social and legal activities to LGBT individuals who are coming to Turkey as a transit country. Within the scope of this program, Kaos GL provides legal assistance in cooperation with UNHCR and DGMM (General Directorate of Migration Management), within the advocacy work Kaos GL communicates and cooperates with NGOs, national and international institutions which are working in the field of immigration and human rights.

 

COUNTRY OF ORIGIN SPECIALISTS

Currently we do not list any Country of Origin Specialists in Turkey, but we welcome suggestions.

 

Researched by: Fatima Hashimi

Email: fhashmi79atgmail [dot] com

 

 

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