Procedural Posture

The Prosecutor’s Office of Izmir brought a complaint to the Court requesting that the defendant association, Siyah Pembe Üçgen Izmir (“Black Pink Triangle”), be dissolved because it failed to comply with the requirements set forth in the Civil Code as well as in the Constitution.

Facts

When Black Pink Triangle was founded by LGBT activists in 2009, it sent a copy of its statute and the necessary documentation to the Izmir Department of Associations. Article 2 of Black Pink Triangle’s statute stated that its aims were to support solidarity between lesbian, gay, bisexual, travesti and transsexual individuals; establish awareness that these persons exist as part of society; create a freer social atmosphere; support self-expression of LGBT; correct societal misinformation and misunderstanding; reduce alienation of LGBT individuals; and end discrimination. The Department of Associations responded that the aims of the association were immoral, contrary to law, and in breach of both the Civil Code and Articles 33(3) and 41 of the Constitution. Article 33(3) of the Constitution provided that “[f]reedom of association may only be restricted by law in order to protect national security and public order, or prevent the commission of crime, or protect public morals [and] public health”, while Article 41 dealt with protection of the family. The Department contended that, because these Articles had been breached, Black Pink Triangle’s freedom of association could be legally restricted under Article 11(2) of the European Convention. Black Pink Triangle refused to change Article 2 of its statute and the Department of Associations then applied to the Prosecutor’s Office of Izmir to have the association dissolved.

Issue

Whether the association’s aims, as set forth in its statute, were contrary to the Constitution and the Civil Code and whether, as a result, its freedom of association could be legally restricted.

Domestic Law

Constitution of Turkey, Article 10 (equality before the law), Article 33 (freedom of association), Article 41 (protection of the family), and Article 90 (ratification of international treaties).

Turkish Civil Code No. 4721, Articles 56 to 60.

International Law

European Convention on Human Rights, Articles 11 (freedom of assembly and association) and Article 14 (prohibition of discrimination).

International Covenant on Civil and Political Rights, Article 22 (freedom of association).

Universal Declaration of Human Rights, Article 20 (freedom of assembly and association).

Reasoning of the Court

The Prosecutor’s Office argued that Black Pink Triangle should be dissolved under Article 60 of the Civil Code, which regulated the process for examining associations’ applications for recognition. According to this provision, the competent authority had 60 days to evaluate the documentation presented and, if needed, to ask the association to make amendments in accordance with national law. However, Black Pink Triangle had refused to amend Article 2 of its statute.

The Court considered the right to freedom of association. It noted that freedom of association was protected under the UDHR, the ICCPR and the European Convention. It also noted that Article 14 of the European Convention affirmed that the enjoyment of all Convention rights and freedoms must be secured without discrimination.

Article 10 of the Constitution provided that all individual were equal before the law and that State organs and administrative authorities must act in compliance with this principle in all their proceedings. Moreover, under Article 33, the Constitution protected the right to form associations and this freedom could only be restricted by law on the grounds of protecting national security and public order, to prevent crime, or protect public morals or public health.

The Court found that, despite the fact that the aims in the defendant’s statute were alleged to be immoral and contrary to law, sexual identity and orientation were not voluntarily chosen by individuals. Furthermore, according to the Court, it was “a well-known fact” that LGBT individuals existed in Turkey as in every other country in the world.

In the Court’s view, it was not possible to characterise as “immoral” the fact that someone had a particular “involuntary” sexual orientation, or the use of words such as lesbian, gay, bisexual, travesti or transsexual; nor was being lesbian, gay, bisexual, travesti or transsexual prohibited under national law. Therefore the use of such terms in Black Pink Triangle’s statute could not be considered immoral or contrary to law.

Finally, the Court addressed the issue of public morality and noted that this was a subjective concept that could change in time and place. The Court reasoned that, in order to characterise an association’s aims as immoral, it had to be shown that those aims were “against strictly determined morals that are accepted by the whole of the society”. In the present case, the general aim of the association was to strengthen solidarity among LGBT persons, cultivate a freer environment in society, end discrimination against LGBT individuals, and ensure their social integration. According to the Court, Turkish law did not prevent LGBT persons from forming an association with these aims.

The Court refused the request to dissolve the association and affirmed that lesbian, gay, bisexual, travesti and transsexual individuals have the same right as everyone else to form an association.

The People v. Siyah Pembe Üçgen Izmir Association (“Black Pink Triangle”), Izmir Court of First Instance No. 6, Turkey (full text of judgment in Court of First Instance, PDF)

The People v. Siyah Pembe Üçgen Izmir Association (“Black Pink Triangle”),Court of Appeals, Turkey (full text of judgment in Court of First Instance, PDF)