a) What is a hate crime?
- According to the Organization for Security and Co-operation in Europe (OSCE), “If the source of a crime committed against a person or property is related to the race, color, ethnicity or nationality, religion, gender or sexual orientation, gender identity, age, physical or mental disability of the person or similar, it is considered a hate crime.’
If the prejudice about an identifiable group, which is chosen as victim, is related to race, religion, ethnic/national origin, gender, sexual orientation, disability status and age, it will be deciding factor. Crimes committed against persons and/or property due to prejudice are called “hate crime”. In a more general sense, hate crime is any kind of damage that the other person has suffered because of their actual or assumed nature. In other words, it is the nature of the victim’s personality, not his actual personality that has been punished.
Hate crimes can be committed in the following ways: Oral harassment, threatening behavior, hate speech, giving names or nicknames, harassment via mail or e-mail, harassment via phone, harassment via messages, graffiti, physical attack, group attack, robbery, theft, mugging, harassment, rape, molestation, threatening, violence, domestic violence, arson or any other form of damage.
Regardless of whether it is a crime defined in the Penal Code of the country, any event in which victims perceive themselves as being prejudiced or hatred is case of hate crime. Examples can be seen in behaviors such as physical assault, threats of attack, damage to property, harassment, written or oral misconduct, hateful and offensive graffiti, intimidating behavior, bullying and hurtful jokes, which are described in the criminal code. Undoubtedly, very serious historical and intellectual reasons for the emergence of these movements and behavioral habits and educational processes gained from family, school, city and country communication tools related to these causes are effective and important.
- b) Historical development
Hate crimes originally conceived in the US as “prejudicial laws” in 1969 were adopted in the United States in the 1980s to include the concepts of race, religion and origin in the following years, which then spread to European states over time.
The main reason for the enforcement of the hate laws in the United States and their severe punishment is that the United States is made up of various ethnic, religious, and culturally diverse communities. The main problem of the United States, which is an immigrant country and which is trying to establish internal consensus and order by establishing a supra-national identity, is racism and discrimination. It is undoubtedly of great meaning that the USA, which was established with immigrants from many different countries, ethnic backgrounds, religions and denominations, was the first country to determine this crime and implement it in terms of the rights to be protected within the country.
Hate laws have been extended in the 1990s to include sexual crimes. It also is part in European legislation. First the discussion of the rights of local people, then
Black rights, depending on the practice of slavery and today immigrant and citizenship rights are discussed and the maintenance of the civil rights struggle and its gains, which are nourished by this discussion, is undoubtedly crucial for both the US and the world. Since the 1990s, the inclusion of attacks on the basis of gender and sexual orientation has led to an important phase in history in the fight against hate crimes. In Europe and for example, in Germany, the definition of “prejudicial crimes” has been used more often for offenses in this context, which are considered “political motives” since 2001.
- c) Victims of hate crime
Hate crime victims may vary according to political and social structure and time, but in almost every society women, homosexuals and darker citizens, which we call gypsies, can be described as common victims of this crime. Almost everyone who constitutes a minority because of their sexual, religious, ethnic, political, philosophical, class and similar qualities can be a victim of hate crime. In this context, Kurds, Armenians, Yazidis, Alawites, Christians, Jews, and people with different sexual orientation in Turkey can become a victim of hate crime in Turkey while in Germany Turks, Muslims, and Jews can suffer from this crime.
Before we give examples of hate crimes in Turkey we would like to briefly examine examples of hate crimes perpetuated in the world. According to the 2008 Annual Report on “Hate Crimes in the OSCE Region: Events and Reactions”, of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE) dated 16 November 2009; hate crimes continue to be a major problem in many OSCE countries and there are cases of hate crimes in many OSCE countries, including intimidation, threats, vandalism, assault, arson and murder. In its report, the Office for Democratic Institutions and Human Rights reports that in the OSCE area there are different categories of crimes, which are racist and xenophobic crimes, crimes against Roma and Sinti communities, anti-Semitism , crimes against Muslims, crimes against Christians and other religions and crimes against other groups.
If we are to express hate crimes that have been forced to keep alive in Turkey; there has been an increase in “hate crimes” arising from increasing racism, nationalism and intolerance in recent years in our country, as in the world. As we shall examine in more detail at the beginning of the next issue, no one has ever been tried for racism or discrimination or for hate crimes despite it being part of the constitution and law of the Turkish legislation. Almost all of those prosecuted for this crime, with a few exceptions, constituted of authors, academics and human rights advocates that are in opposition against ‘hate crimes’ stemming from racism, nationalism or intolerance in Turkey. The most important issue is that the problem of the recent years is not just the way laws are enforced. The problem is occurring as a social problem.
Since the beginning of 2006 Turkey has been a country, where a series of murders against people consisting of ethnic or religious minorities, different sexual orientation and people with different gender identity occurred. Lynching attempts against groups with different political views and the use of hate speech by politicians represents another dimension of the problem.
Despite the existence of many hate crimes in Turkey reflected in the OSCE report, said crimes are not followed by the Turkish state and are not investigated. There is no official data on the existence of hate crimes in any institution of the state. Institutions necessary for the prevention of hate crimes in Turkey have not been created and no work has been carried out on this issue. Moreover, legal regulations that envisage any criminal sanctions against hate crimes are not existent in Turkey. As a result, hate crimes and naturally hate propaganda remain unpunished.
As there is no database relating to hate crimes in Turkey there are also no legal measures to identify the problem. According to existing data and media representation it is possible to say that there are hate crimes of five different categories in Turkey. Here are some examples that correspond to the following categories:
Some examples in chronological order:
1-) Hate crimes against groups with different ethnicity, religion and minorities
April 1, 2005: The International Protestant Church in Ankara was threatened with a letter signed by the “Turkey Revenge Brigade” and tried to burn down with a Molotov-cocktail.
February 05, 2006: Priest Andrea SANTORO of the Santa Maria Italian Church in Trabzon was shot and killed by 16-year old O.A.
January 19, 2007: Hrant DINK, editor in chief of Agos Newspaper, was shot and killed in front of the company building.
April 18, 2007: Three people working at the Zirve Publishing House in Malatya were killed by cuts on their throats because “they distributed bibles”.
After three people working at the Zirve Publishing House in Malatya were killed by cuts on their throats on April 18, 2007 because “they distributed bibles”, Ankara Kurtuluş Church Pastor İhsan ÖZBEK said the following to describe the magnitude of the hatred “After the incident in Malatya, people who recognize us on the street are gesturing throat cuts with their hands.”
August 17, 2007: A case was filed against Oktay BİÇİCİ, who allegedly opened fire against the Diyarbakır Protestant Church. Oktay BİÇİCİ was arrested on the grounds that he was in the preparation for an attack on Ahmet GÜVENER, the pastor of the same church, and was released a week later for a pending trial.
December 17, 2007: Pastor Adriano FRANCHINI of the Saint Anthony Church in Izmir Bayraklı was stabbed by Ramazan BAY.
November 28, 2007: Pastor Edip Daniel SAVCI of the Mor Yakup Monastery in Mardin was kidnapped.
December 30, 2007: M.T., who came to Antalya in order to kill Pastor Ramazan ARKAN of the Antalya Church was caught.
January 11, 2008: 17-year old S.S., who was released after being detained for threatening Pastor Orhan PIÇKALAR of the Agape Church in Samsun said afterwards: “Watch me on television tomorrow. I will do a massacre.” and thus made a threat again.
April 08, 2008: 75 right-wing students attacked 3 Kurdish students in Antalya. Police officers asked the attacked students whether they were PKK members.
May 24, 2008: In Aydın, Kurdish students were attacked on the grounds that they made slogans in favor of the PKK. The students were referred to the court.
June 14, 2008: In Gebze, Kurdish workers were attacked on the grounds that they disturbed their neighbors. One worker was injured.
October 05, 2008: The people in Adana wanted to lynch a murder suspect after finding out that he was Kurdish.
October 20, 2008: In Istanbul, the police stopped a bus from Ağrı for control purposes. During the check, the bus officer was beaten together with the passengers when he objected for being held up for general information scanning. After the police said to the gathering crowd that “these were PKK“, the crowd tried to lynch them.
December 31, 2009: Ahmet Turk, former chairman of the DTP, who was shut down by the Constitutional Court, wanted to change his house. Bahattin Demircan, fellow citizen in Or-An, location of the new house, confirmed that they wouldn’t give Ahmet Türk the house. Türk said that he experienced something similar in 2005 and that three house owners said to him “that they don’t have any houses to give”.
3- Hate crimes based on sexual orientation and gender identity
June 4, 2008: The trans-individual named Sisi was stabbed 4 times in her back by a person approaching from behind while she was going shopping to the market in Kuşadası and lost her life in the hospital. While the perpetrator was caught with the knife in his hand he said to the police and crowd “Didn’t I do well?” and praised himself with the hate crime.
November 10, 2008: Dilek, who sat in her car in the Iskıtler region of Ankara, was shot in the head with a shotgun from a vehicle that approached from behind and lost her life in the hospital on November 11, 2008. Investigations continue and no perpetrators were found.
December 19, 2008: According to the news in the Takvim newspaper, a trans-individual whose identity could not be determined, was killed by two bullets in his chest on the Gebze-Istanbul highway.
December 27, 2008: “Homosexual Şaban Çelen, known as ‘Girl Şaban’, who lived in the Sur district of Diyarbakır in the Cemal Yılmaz Mahallesi Dutlupınar Sokak, was shot together with Ali Yavuz, with whom he shared a home with, and found dead with multiple stab wounds.’
A transgender woman in Eskişehir was attacked and beaten. A transgender woman in Bursa was found with a severed head. A person was killed by a friend in Edirne on the grounds that he proposed sexual intercourse. No statements were made about the murders of Ahmet Yıldız, who was shot in Istanbul on July 15, 2008 and Dilek Ince who was murdered with a shotgun on November 12 in Ankara. On March 10, in Istanbul, again a transgender female, Ebru, was stabbed to death.
4- Hate crimes based on racism and xenophobia
August 20, 2007: Nigerian citizen Festus OKEY was shot in the neck with a gun while being detained in Beyoğlu District Police Department.
5– Hate crimes against people with different political opinions
April 12, 2005: Five TAYAD members who wanted to protest the F-Type prisons by making a press statement in front of the Adapazarı Atatürk Cultural Center, were about to be lynched by about 100 people, who claimed that they were “hyper nationalists”.
6- Hate crimes based on other factors
Physically challenged Şafak PAVEY was beaten in Istanbul Beyoğlu by the so called parking lot mafia who threw his prostheses arm and leg into different corners, after which he was hospitalized. After Şafak PAVEY made a complaint to the police about the event the police said “what does a disabled man have to do outside at night” and was insulted.
- d) Regulation on the Prevention of Hate Crimes in Turkish Law
Article 10 of the Constitution of the Republic of Turkey states that everyone, regardless of language, race, color, sex, political opinion, philosophical belief, religion, denomination and similar reasons for distinction, is equal before the law. Similarly, Article 3 of the Turkish Criminal Code numbered 5237 protects the principle of equality before justice and law, article 76 prohibits the crime of genocide, article 122 prohibits discrimination and article 216 criminalizes the incitement to hatred and hostility or humiliation.
“Discrimination” has been defined in the 7th part of “crimes against liberty”, which is defined in the second part of “crimes against persons” of the Turkish Criminal Law (TCK) numbered 5237. Examples of discrimination, such as the refuse for sale of goods, the recruitment of goods, the failure to provide services or the prevention of economic freedom by distinguishing between persons with stated reasons, were punished for 6 months to 1 year. In Chapter 5, which regulates “crimes against public peace” which is the third part, which regulates “collective crimes”, the actions taken in this context are categorized.
Undoubtedly, Article 216, which is regulated by the title of “inciting and humiliating people with hatred and hostility”, is actually a matter to be applied to hate crimes. “For anyone who incites people with different characteristics in terms of social class, race, religion, sect, or territory difference to public hatred and hostility against another group”, this behavior constitutes a clear and close danger in terms of public security and the action is punished with 1 year to 3 years. This arrangement corresponds to the 2nd paragraph of the famous Article 312 of the previous TCK. However, this article, which can be used quite effectively on hate crimes, is either never applied or not applied to those who practice hate speech but to those who are opposed to it as we could see in the cases of Ibrahim Kabaoğlu and Baskın Oran. There are very few examples, where the article is applied correctly. The case filed against the Turkist Community Budun Association in Izmir because of their press release on the castration of the Kurdish people because “they were causing problems” by the members of the Contemporary Lawyers Association (ÇHD), is without doubt one of the exceptional examples of the correct application of article 216. Likewise, in March of this year, a case against a family of 16 in Denizli-Çivril, which made propaganda against a Kurdish family in form of “These are with the PKK, if we don’t kick them out the Kurds will take over the village”, which led to the fleeing of the family from the village, is another positive but rare example, although the family itself didn’t file for a case.
Apart from this, Article 301, which regulates the crime of “humiliating the Turkish nation, the Republic, the institutions and the organs of the state” within the scope of part 3 which regulates the “crimes against the sovereignty of the state and the dignity of its organs” of part 4 of “national and state crimes” has been heard by everyone by now.
Undoubtedly, if Article 216 of the TCK had been applied correctly, or if the hate speech in the country would have been carefully and accurately followed in time, priest Santoro from Trabzon wouldn’t have been murdered or young people, who tried to make a press release, wouldn’t have been tried to lynch. If the hate speech reflected on the internet would have been seriously followed in the country and deciphered in time, it might have been possible that Hrant Dink would still be alive, that the massacre in Malatya, that shamed whole Turkey, wouldn’t have happened and that the lynching attempts in Seferihisar and Kemalpaşa in İzmir wouldn’t have happened either.
- e) Regulation on the Prevention of Hate Crimes in European Law
There are laws in the European region, especially in the UK, to prevent crime. However, the law and scope of each country to prevent hate crimes are different. Both Germany and other European countries are fighting against racist “propaganda” and national socialist ideology and politics based on the perspective of militant democracy. However, there is no special arrangement in these countries (except for some exceptions such as the UK) for “violence” offenses based on racism and xenophobia.
This means that racist injuries are subject to the same punishment under normal circumstances such as injury based on jealousy. This approach is important for some limitations in terms of the crime of incitement of groups within the society against other groups due to hatred and hostility, sanctions on closing of associations and parties, prevention of insults to groups and freedom of assemblies and demonstration marches. Racist propaganda is also seen as a preparation for genocide and tried to be suppressed by militant democratic means. The punishment of denial of genocide is an example of the hardness of this approach.
The penalty for crimes due to racism or xenophobia in Germany can only be hardened indirectly with the crime of murder. A moral killer based on a low motive is a kind of violent murder in Germany that is different from simple manslaughter. In a few cases before the German Federal Court, the court ruled that the murder of a person in order to gain respect from his racist friend is an act with a low morality. Again in Germany, the judge has to keep in mind the beliefs and ideas reflected in the character when ruling. This “belief” of the racist perpetrator will surely increase the punishment and not decrease it.
In addition the Organization for Security and Co-operation in Europe (OSCE) has been following Europe since October 2006 in this field and in order to prevent hate crimes with a website (TANDIS). Developing a definition of hate crime, the OSCE has improved this definition by taking into account the differences in legislation, resources, approaches and needs. We mentioned this definition in the search for the answer of the question “what is a hate crime?” in our article.
- f) Result
To identify the hate speech and crimes of our present Criminal Code, to enrich the content of punishment and finding an application area taking into account current practices in the world are of vital importance for our future. An understanding of SPLC’s exemplary working techniques and case studies will be eye-opening in terms of both public institutions and non-governmental organizations in the fight against hate speech, which is constantly on the rise. In the OSCE reports, of which Turkey is also a member, hate crimes in Turkey, also taking into account the deficiencies and irregularities detected in these matters, should be sorted out in terms of contradictions and differences, necessary regulatory arrangements should be made and the practices must be put in a position appropriate to the equality gained from human birth.