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OPEN LETTER AND AN ALERT FOR ACTION

Conscientous Objector Mehmet Tarhan possibly faces forced physical examination

Military Court of Appeals Overrules Objectors Case over lack of physical examination proving homosexuality


The Military Court of Appeals on the grounds of procedure overruled the verdict that sentenced conscientious objector Mehmet Tarhan to a total of 4 years on two different trials with charges of insubordination November 2, 2005.

The attorney generals suggestion to the military court of appeals was to overrule the decision on the grounds that the 4 year sentence was disproportionately high and was against the rule of fairness. Attorney generals suggestions and Tarhans lawyers numerous demands for appealing were not taken into consideration by the military court of appeals. Military court of appeals decided that the local courts decision was correct on principle but they overruled nevertheless on procedural grounds: namely that Tarhans homosexuality (and therefore his unfitness for military service) had not been established via proper physical examination procedures.

According to the verdict of the appeals court, if it was proven that Mehmet is gay through somatic examination then the elements of the crime would have disappeared and would nullify the lawsuit altogether. The military appeals court verdict also suggests that it is necessary to perform a compulsory physical examination of this kind and goes on to provide some sort of legal justification the local court can use (see below).

Turkish military still uses DSM II (Diagnostic and Statistical Manual of Mental Disorders) dating from 1968 whereas the medical community currently uses DSM IV-2000. According to DSM II homosexuality is a psychosexual disorder and those who have this pathology are considered unfit to serve in the Turkish Armed Forces. Exemption from military service on the grounds of homosexuality is an extremely difficult and humiliating process in Turkey: one is required to submit photographs or videos graphically displaying sexual intercourse with another man and/or submit to an anal examination that supposedly yields proof of passive anal sex. These are not guaranteed ways of being exempt from service; they are practiced arbitrarily at the whim of whatever military authority and are used more as a degrading strategy of systematic humiliation than anything else.

The local court is free to whether dismiss or abide by the appeals court decision. Appeals court decision is a non-binding suggestion to the local court. If the local military court decides to uptake the appeals decision, Mehmet Tarhan could be transferred to military hospital and there is a possibility that he may receive forced physical examination there.

Throughout the 7 month period of his imprisonment Mehmet Tarhan has refused all attempts at physical examination. He has stated in his declaration of conscientious objection that he sees the unfit report (which is referred to as the rotten report) as the rottenness of the militaristic order itself. Tarhan has also declared numerous times to his lawyers that he will refuse all physical examination against his will.

Although we do not know for sure how the appeals court decision will be interpreted by the local military court in practice, we are extremely worried about Mehmets bodily integrity. Forced physical examination against ones will is a violation of bodily boundaries that is comparable to rape. His lawyers will apply to the military appeals court for amendment of this verdict that encourages internal physical examination against Mehmets will. We do not yet know the trial date of the local court.


The following are the relevant articles of Criminal Procedures Law (CMK) cited by the military court of appeals in order to justify forced physical examination:

Body Examination and Taking sample from the body of the suspect or the defendant
Article 75 of Criminal Procedures Law (CMK)- (Ammendment: 25/5/2005 Article 5353/2)

(1) In circumstances where there is a request by the public prosecutor or the victim or in accordance with the juidicial notice undertaken by the judge or the court or if there is inconvenience in delaying the process, public prosecutor can decide for the internal body examination or taking blood or similiar biological samples like hair, saliva, nail..etc from the body of the suspect or the defendant in order to obtain an evidence for a crime. The decision of the public prosecutor is submitted to the courts or the judges approval in 24 hours. The judge or the court would make the final decision in 24 hours. Disapproved decisions will be void and the obtained evidence will not be used.
(2) It is required for the internal body examination or taking blood or similiar biological samples to be undertaken, that the intervention wouldnt involve any dangers to ones health.
(3) The process of the internal body examination or taking blood or similiar biological samples can only be undertaken by physician or a doctor.
(4) The examination of the sexual organs or anus is called the internal body examination.
(5) A person can not be subjected to the internal body examination or the process of taking blood or similiar biological samples from ones body for crimes, which requires imprisonment less than 2 years.
(6) Undertaken decisions by the judge or the court in accordance with this article are contestable.
(7) Clauses, regarding the alcohol examination or taking blood samples in the special law are guaranteed.

Article 18 of Regulations Regarding Bodily Examination, Genetical Examination and Determination of Physical Identity in Criminal Prodecures Law (based on Article 82 of Criminal Procedures Law (CMK))
Article 18- Consent of those concerned
In circumstances where despite the fulfillment of all conditions required in the legislation and the fact that the suspects defendants or other persons are informed about these matters, if such persons disallow examination or giving samples then necessary measures are taken by the Public Prosecutor.

Please forward this message to friends and send protest faxes to the numbers below,to show that Mehmet is not alone.


Sivas Military Prison
Fax: + 90 346 225 3915

Head of Chiefs of Staff:
Fax: + 90 312 425 0813

The Ministry of Defense:
Fax: + 90 312 417 6386

Office of the Head of the Republic:
Fax: + 90 312 427 1330

Office of Prime Minister:
Fax: + 90 312 417 0476

For more information in English see WRI website http://www.wri-irg.org/ or http://www.refusingtokill.net/Turkey/ReleaseMehmet.htm or simply reply back with your questions to the following email adresses:

[email protected], [email protected]


Please take time to sign the petition and live at least your email for future contact and the uses of this text as an open letter to protest Mehmet Tarhan's situation.

BACKGROUND INFORMATION:

Who is Mehmet Tarhan?

Tarhan was taken into custody on April 8, 2005 on the grounds that he was a military service deserter, and transferred in the accomaniment of the gendarme to Tokat 48th Infantry Regiment. He had declared his conscientous objection on October 27, 2001 at the Ankara branch of IHD(Human Rights Association).

On April 10, 2005, Sivas Military court filed a lawsuit against Mehmet Tarhan on the charge of insistent insubordination before the unit with the intent of evading military service altogether (Article 88 of the Military Criminal Code) after he refused to wear military uniform.

Mehmet Tarhan was kept in Sivas Military Prison from April 2026, 2005 for examination about his homosexuality and his psychiatric condition. But Tarhan refused examination, defining the unfit for service report (widely known as rotten report) as the rottenness of the militaristic order itself..

It was understood that from the day Mehmet Tarhan was imprisoned until May 19, 2005, he was constantly threatened, harassed, subject to blackmail and beatings by other inmates (who were encouraged by some people from the prison administration). Tarhans lawyers applied to the Military Prosecutor about these atrocities. Also shortly after the atrocities were revealed to the press and public opinion, on May 25, 2005 Tarhans hair and beard were violently and forcefully shaved by 7 soldiers. Tarhan who sustained injuries during these events went on a hunger strike with the demands of Protesting the unfair and inhumane treatment he received, legal action against the perpetrators, civilian doctors examination, having the same rights as all the other prisoners. This hunger strike lasted for 28 days.

On June 9, 2005'te the third hearing of the case was held and Tarhan was released in order to be tried free. But the vicious cycle of Military Recruitment center, Military Unit, Military Prison was put to work again and Tarhan was sent once again to the Tokat Infantry Regiment escorted by the gendarme. As he again refused to wear military uniform, a second lawsuit was filed on June 10, 2005 on the charge of insistent insubordination before the unit with the intent of evading military service altogether.

On August 10, 2005 the cases were concluded and Mehmet Tarhan was sentenced to 4 years (2 years for each case) in prison. The decision was appealed.

On September 30, 2005, Tarhans hair and beard were again forcefully and violently shaved by 7-8 soldiers. After this torture, Tarhan went on another indefinite hunger strike with the following demands: Protesting the unfair and inhumane treatment he received, legal action against the perpetrators, civilian doctors examination, having the same rights as all the other prisoners. After the negotiations by his lawyers, his demands were met on November 2, 2005 and he ended his hunger strike.

On October 26, 2005, a delegation from Human Rights Association, visited Tarhan and gathered information about the marks of violence on his body, the prison conditions and the torture.

On October 31, 2005 two doctors from the Sivas Doctors Association met face to face with Tarhan, and although they could not medically examine him, they got information. From October 31, 2005 on, as a result of the negotiation efforts from Mehmets lawyers, agreement was reached about his demands.

On November 2, 2005 his statement in relation to the complaint was taken by the Military Prosecutor. And on the same day, he ended his hunger strike.


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