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The Honour Killings in Turkish Jurisprudence

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In this paper, honour killings are not analysed or conceptualized in socio-cultural context. The focus will be on defining the legal politics while combating honour killings, especially in Turkey after the year 2005. Turkey took concrete steps to
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  1 The Honour Killings in TurkishJurisprudence Eda Aslý Þeran In this paper, honour killings are not analysed or conceptualized in socio-culturalcontext. The focus will be on defining the legal politics while combating honour killings, especially in Turkey after the year 2005. Turkey took concrete steps to prevent the honour killings in 2005 while reforming its Penal Code subsequent tothe pressure of women rights activists. Unfortunately, legal reform has notaffected the social order as much as expected in the favour of women.The focus of this study is Turkish Supreme Court of Appeals’ generalapproach towards combating of honour killings. First, the gender mainstreamingin Turkish law order is explained. Then, Turkish Penal Code reform and thechanges regarding honour killings are defined. Finally, the Turkish SupremeCourt of Appeals’ amendments on case laws that are in relation to honour killingsare going to be discussed. Feminist methodology is going to be used to analysethe changes in Turkish jurisprudence. Honour Killings Killings in the name of honour still exist in the 21st century as one of the mostthreatening obstacle which resembles the efforts for abstaining women from being autonomous individuals. An honour crime is different from any other kindof killing, because it is a  systematic and an organized reaction  (Ecevitoðlu, 2012:22). In patriarchal societies, the tool for controlling women body, womensexuality and women space is the notion of honour. Using this notion, men forcewomen to obey patriarchal gender roles that are formed and established in oral Special thanks to Assistant Professor Dr Zeynep Özlem Üskül Engin who encouraged andsupported me to write this article and present it in Women’s Worlds Congress 2014 in Hyderabad,India. I would like to thank Aslý Takanay as well who contributed to this article by checking theEnglish writing and helped me in translation. I am very happy to know both of these inspiringwomen.  and written culture, within religious and social frames. Women are therebyexpected to conform to these patterns (Türkan, 2013: 254; McClelland, 2013: 60).In Turkish, the word  namus  is used for honour and it srcinally comes fromthe word  Nomo  , an a Ancient Greek word. The masculine word  Nomo   can bedefined as custom, law, anything that becomes settled or gained its meaning byinterpretation. In Turkish, the meaning of   namus  is loyalty, chasteness, honesty ingeneral (Akbaba, 2008: 335–336).According to perpetrators, the main reason for honour killings is thatwomen, by disobeying the standards that are defined for their sexual attitudes,dishonour both themselves and the whole family and, thus, make their familiesfilled with shame (Kandiyoti, 2011: 81; McClelland, 2013: 60). Attitudes of women that are considered to be dishonourable by the perpetrators are, in general,as follows: Emotional relationships outside the wedlock, which is seen ascheating; attempt to divorce a man or break-up with a boyfriend; new relationshipof a divorced woman with a man other than her previous husband; eloping with aman; being raped or being kidnapped; listening to music that is found ‘unsuit-able’; dressing up ‘improperly’; going somewhere that is not ‘accepted’; talkingto men (Ýçli, 2013: 174; McClelland, 2013: 60; Türkan, 2013: 257; Sev'er andYurdakul, 2001: 980–985; Akbaba, 2008: 334).Honour killings are ubiquitous in the Mediterranean countries (Berktay,2009: 155), but it can be said that they also exist in other regions of the world. Itwould be a mistake to allocate these killings to a specific region, time and religion(Ecevitoðlu, 2012: 21; Türkan, 2013: 269; McClelland, 2013: 60). In the United Nations reports, it is found that honour killings are rampant in Eygpt, Jordan,Syria, Iraq, Iran, Lebanon, Yemen, Turkey, Bangladesh, Ecuador, India,Pakistan, Uganda, Tunisia, Morocco, and Brazil (Ecevitoðlu, 2012: 23). The problem of honour killings has been existing since the ancient Roman Empire.Denoting the issue to a specific region and explaining it in terms of backwardnesswould be an orientalist point of view and associating it with Islam would be anIslamo-phobic consideration (Ecevitoðlu, 2012: 26; McClelland, 2013: 60).These misleading perceptions exist in Turkey, but the problem is rather relatedwith men trying to dominate women by controlling and forcing them to obey(Türkan, 2013: 259; Göztepe, 2005: 29–30).Killings in the name of honour can be seen in various forms: stoning,stabbing, beating, burning, hanging, disjointing the head from body, choppingfrom throat, shooting, attacking by acid, strangling and forcing to commit suicide.The most important feature is realizing that this honour killings are done in the public sphere to rebuild the ‘honour’ which was lost in the eyes of society and thisact, in a way, is a warning to other women as well (McClelland, 2013: 60). Inrecent years, perpetrators have started to force women to commit suicide or try tomake the killing look like a suicide in order to escape punishment. The amend-ments in law have challenged the act of killing publicly, but they have notweakened the societal control.Killings seem to be committed with a family assembly decision, but they can be committed without it as well (Türkan, 2013: 257; Akbaba, 2008: 337). In some 12 •  Eda Aslý Þeran  cases, we see that female members of the family support the family assemblydecision or pave the way for the killing by gossiping or even actively joining theact of killing (Akbaba, 2008: 334–339). Deniz Kandiyoti’s term, ‘bargaining with patriarchy’ may help to explain the attitudes of these women who do not makesolidarity with the victimized women. With every action that breaks the patri-archal norms such as honour, patriarchy faces a crisis. In these critical times, bargaining is reawakened between men and women. Some women gain‘protection and security by obedience, by coherence and by approving that thehonour of men depends on women’s reliable attitudes (Kandiyoti, 2011: 139). Itcan be said that, for thousands of years, the reason for women enduring control,oppression and exploitation of men has been gaining security for their obedience.To guarantee the security, to strengthen their social status and to gain respectfrom men, some women have acted as facilitators/aiders of the killings in thename of honour against the women who violate these patriarchal social norms.However, in cases where there is a family assembly decision, there are surelymany women who try to prevent these killings. Law and Honour Killings With the new millennium, Turkish women’s rights and feminist struggles withinthe scope of legislative regulations have considerably improved. The most powerful legal amendments were made, in Article 10 1 of the Turkish Constitutionwhich regulates ‘ the equal protection of law principle ’, in 2004 and 2010. By thisamendment, the State accepted the positive obligations of maintaining equality of men and women as well as the recognition of the concept of ‘ affirmative action ’.After 2002, the Civil Code, the Labour Code, the Public Servants Code and theCriminal Code were amended respectively with the aim of affecting the status of women positively and to provide equality (Benli, 2013: 123). After beingconvicted by European Court of Human Rights (ECHR) in the case of NahideOpuz (2009) – which is the first case related to the violence against women – Turkey made an extensive reform for providing protection to women againstviolence. The 6,284 Numbered Law, ‘The Protection of Family and theProhibiting of Violence Against Women’ and the regulations that are parallel tothe mentioned law are very important within the context of current positive lawaffairs. Lastly, the Council of Europe Convention on preventing and combatingviolence against women and domestic violence, that is Istanbul Convention, 2 entered into force on 1 August 2014.The strengthening and gradually gaining a more organized character of thewomen liberation struggle in Turkey, the campaigns that are run systematicallyagainst patriarchal laws and besides, global women movement’s putting the targetof preventing the violence against women and providing gender equality on thefirst line in the agenda made a strong effect in all these judicial reforms (Anýl etal., 2005). Especially, by the protection and prevention laws, the ‘State’ officialshad to accept their responsibilities about the violence against women in relation tothe women’s right to live, freedom, not to be subjected to torture, right to privatelife and right to security. The Honour Killings in Turkish Jurisprudence  • 13  To eliminate honour killings, to maintain gender equality and in terms of anysubjects that are related to preventing violence, these legal regulations are highlyimportant. Along with legal regulations, the judicial decisions and precedents andthe doctrine of law are as crucial and effective (Uygur, 2012: 17–18). It is alsoessential for the practitioners of the law (judges, prosecutors, lawyers, policeofficials, public officials and civil servants) to implement these laws, to interpretthem for the sake of equality and to take preventive measures against violence.Honour killings have become more visible than ever in the 21st centurywithin the human rights struggle. This can be attributed to two facts: first, therise of international women’s human rights struggle and secondly, the increasein the number of honour killing cases in Europe. The idea of directing the insti-tutional and organized power, to the struggle of eliminating violence againstwomen was first put on the agenda during the UN’s Fourth World WomenCongress in 1995 (Sev’er and Yurdakul, 2001: 964). Honour killings, as anotion, first entered the international law documents in the final declaration of Beijing +5 meeting that was held in New York in 2000. In this declaration, itwas mentioned as a kind of ‘ harmful traditional and customary practises ’ andwas described as human rights violation (Ecevitoðlu, 2012: 22).In Turkey, there are many researches that have been conducted on honour killings, in the field of sociology. Nevertheless, researches that examine thesubject in legal extents that are done by legal experts are very few. The number of these studies should be increased to realize their main goals. There are two maingoals to examine the issue within a legal framework: to prohibit the direct or indirect discrimination against women in the interpretation of criminal codes andto examine the use of ‘unjust provocation’ concept in honour killing cases(Göztepe, 2005: 31).In this respect, examining the precedents of the Turkish Supreme Court provides us with important knowledge about honour killings. Before proceedingwith the precedents of the Turkish Supreme Court, I am going to present honour crime related codes within the Turkish Criminal Code. Honour Killings in the Context of Turkish Criminal Law In terms of honour killings, there are two ground-breaking steps in conjunctionwith the Turkish criminal code reform in 2005: first, the wilful homicidemotivated by customs and traditions have been regarded as an aggravated reasonfor the crime and secondly, unjust provocation provision was recomposed(Göztepe, 2005: 43). Previously, the sentences with regard to honour killingswere reduced because of the moralist and male dominated point of view.Following the reform, honour killings started to be regarded as an aggravatedform of homicide. Now, we can examine it more closely. Femicide in the Name of Honour Honour killings are considered in Article 82 of the Turkish Criminal Code as aform of aggravated wilful homicide (Anýl et al., 2005: 63; Göztepe, 2005: 43; Ýçli, 14 •  Eda Aslý Þeran  2013: 148). It is stated (in the legislative intention of Article 82) that in crimesrelated with honour killings which must be charged with heavy life impris-onment, the offender cannot make use of the provision of unjust provocation(Göztepe, 2005: 43; Akbaba, 2008: 345).Under some circumstances, the tradition of custom killings and honour killings is carried out under the decision of family assembly, but not always.Therefore, the crucial duty of jurisdiction should be to ascertain the motive of tradition, custom and honour in these crimes and not the possible presence of afamily assembly decision (Akbaba, 2008: 343). In case of a family assemblydecision, the act of killing is mostly performed by the youngest member of thefamily who does not have any criminal responsibility. Thus, other familymembers are used to rescuing themselves from the punishment under the NewTurkish Criminal Code, now, the members of family assembly who act as insti-gators of honour killing get the same punishment with the perpetrator and they are punished as the aider (Anýl et al., 2005: 63; Akbaba, 2008: 344, Ýçli, 2013: 148).In this respect, the members of the family who provoke the killing under the cover of honour have also been sentenced with heavy life imprisonment. The aiders of the murders have been punished separately with regard to their ratio of involvement in these crimes. Unjust Provocation Before the reform of the penal code, the former application of unjust provocation provision was used for supporting these honour killings by interpreting the codevery widely and providing extensive discount in the punishments (Ýçli, 2013:148). In the reformed penal code, in the legislative intention of the provision, thehonour killings have been discussed with the intention of preventing thesekillings from occurring (Göztepe, 2005: 43). In the honour crime cases, the unjust provocation provision cannot be applied; however, it is not possible for all thecases (Anýl et al., 2005: 63).In order to apply this provision of unjust provocation, the act must beforbidden by the law (Akbaba, 2008: 345–346; Ýçli, 2013: 149; Türkan, 2013:281). It means, unless the situation of the victim or the concrete act which thevictim was subjected to is unlawful, the unjust provocation provision cannot beapplied for the crime and the perpetrator cannot gain any discount in the punishment. In this respect, for instance, being raped, going to a cinema,divorcing, having wilful sexual intercourse with someone which are notforbidden by the law cannot be counted as an unjust provocation. Dishonouringthe family name or similar concepts can be a reason for the punishment in a patri-archal traditional law; however, in modern society’s law, these are not the values,which the law should protect. Modern law should respect the right to decision of women on her own body by accepting the gender equality as the core principle of its system (Göztepe, 2005: 44–46). The Honour Killings in Turkish Jurisprudence  • 15
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