Recently even in cases –that feminists also follow– where it is clear that “the attack continues” in the files of women defending their lives, which is the exact opposite of the definitions in the law, the patriarchal judiciary does not use self-defense in an unlawful manner, but instead imposes heavy penalties by applying unjust provocation. It separates the moment of crime and punishes women by ignoring the protection orders, reports of assault, shelters whose doors have been knocked, and divorce cases filed in all of them without exception, ignoring the obvious systematic male violence or not being seen as sufficient for self-defense.
In the files of the women who defended their lives and killed in order not to die, we see that especially the appeal and the Court of Cassation reverse the decisions on “acquittal and no need for punishment”, or approve the imprisonment sentences given to these women, sometimes up to life imprisonment, as in the Nevin Yıldırım case. This tendency of the Court of Cassation in recent years has also affected the decisions of local courts, and it is possible to see that more and more women are punished for their actions, which should be considered legally self-defense. Women who had to kill in order not to die are given an average 15-year prison sentence one by one by applying unfair provocation instead of self-defense or even if the women are acquitted, the decisions are reversed by the appeal and the Court of Cassation. At this point, I think that we need to discuss about why self-defense is not applied, instead the unfair provocation clause is applied, and we need to make a political statement from here. Because, in cases of violence, harassment, rape and femicide, another side of the “policy of impunity for men” is the heavy penalties given to women who defend their lives in self-defense.
According to the Turkish Penal Code, the response of a person to protect herself/himself or another person in the face of an ongoing or certain repetition attack is defined as self-defense. For the acceptance of self-defense, the attack must be directed against “any right worth preserving”, that is, there must be an attack against the right to life, physical integrity, sexual inviolability, etc. According to the law, in order for self-defense to be accepted, the conditions for attack and defense must be met together. Although a concrete attack is required in the part of what we call the conditions of the attack, it is stated that an attack that is certain to start and that will make the defense impossible or difficult if started should be considered as started, and an attack that is feared to be repeated even though it is finished should not be considered as finished yet. Among the conditions are that the attack must be unjust, that it must be directed against any right that is worth preserving, and that the attack and the defense must be simultaneous. In the part that we call the conditions regarding the defense, the defense must be compulsory and there must be a balance between the attack and the defense. In the article of the law that regulates “crossing the border”, it is stated that “the perpetrator is not punished if the crossing of the border in self-defense is caused by an excusable excitement, fear or haste”, and provides for impunity. In this case; it has been accepted that a person will not be deemed to be at fault due to exceeding the limit in self-defense, since her/his ability to direct her/his behavior will be lost due to the confusion, fear and haste she/he has fallen into because of the attack she/he has been exposed to.
Unjust provocation, on the other hand, is regulated in the Turkish Penal Code as a reason that reduces the criminal responsibility of the person who commits an offence “in a state of anger or severe distress caused by an unjust act.” The relationship between the concepts of unjust provocation and self-defense can be explained in the system envisaged by the Turkish Penal Code as follows; for example, in the case of the perpetrator injures the aggressor while the aggressor throws his gun and runs away from the scene, since there is no ongoing attack, there will be no question of self-defense, in this case, only the provisions of unjust provocation will be applied because it is considered the perpetrator acts not to protect himself/herself but in a state of anger or severe distress due to the finished attack.
Recently even in cases –that feminists also follow– where it is clear that “the attack continues” in the files of women defending their lives, which is the exact opposite of the definitions in the law, the patriarchal judiciary does not use self-defense in an unlawful manner, but instead imposes heavy penalties by applying unjust provocation. For example, Çilem Doğan’s 15-year prison sentence, which was upheld by the 1st Criminal Chamber of the Court of Cassation, was given by the Adana Heavy Penal Court No 10 on the grounds that “attack and defense were not simultaneous.” Although the presiding judge of the court disagreed that Çilem’s action should be considered as self-defense and should not be punished, in the decision taken by the majority of votes systematic violence against Çilem was accepted but this was only considered as unjust provocation and Çilem was sentenced to 15 years in prison with the good time credit. Despite the 9 protection orders in the file, the court did not accept self-defense, claiming that there was no violence on the day of the event. However, Çilem, who came face to face with death every time due to the systematic violence she saw, was dragged by her husband by the hair on the day of the event, and she fell on the bed with the effect of the blows she received, and at that time she took the gun in her hand and started shooting randomly. While it is clear that the conditions listed in the article of the law actually fit perfectly, that there are not one but many ongoing attacks and that this attack will almost certainly result in death when evaluated together with his past behaviors, Çilem was subjected to unfair provocation, not self-defense.
In the Yasemin Çakal file, although the Bakırköy 13th Heavy Penal Court accepted the right to self-defense and decided that “there is no need for punishment” and “release”, this decision was rescinded at the stage of appeal and Yasemin was again given 15 year sentence with unfair provocation and the good time credit and the file is now at the Court of Cassation. However, while her ex-husband, who had been using systematic violence for years, tried to strangle her with a belt and squeezed her child with his elbow, that is, while the attack was continuing, Yasemin desperately protected herself and her child by picking up the knife on the table and throwing it.
In the Name Öztürk case, too, which can be shown as an example of self-defense, the Kartal Courthouse 4th Heavy Criminal Court sentenced her to 12 years and 6 months in prison. However, Name had to kill to protect herself when her ex-husband, who used violence against her and raped her during her marriage and continued to rape her after her divorce, threatened to kill her by pointing a gun at her. At the appeal stage, Name was sentenced to 10 years in prison with unfair provocation and good time credit, and the case is now at the Court of Cassation.
Hülya Halaçkay, who had to kill her husband while trying to get rid of the attack of her husband, who used systematic violence against her, was sentenced to 15 years in prison with a good time credit, stating that the action was under the influence of unjust provocation, again by not accepting self-defense, by the Bakırköy 20th Heavy Criminal Court. The decision, which was upheld at the appeal stage, is still at the Court of Cassation.
Havva Zor, who was sentenced to 15 years in prison by the İskenderun 2nd Heavy Criminal Court with unfair provocation and good time credit, had to kill her husband, who used systematically violence against her and sexually abused her daughter, to protect herself and her daughter. This decision, which was upheld by the appeal court, is now at the Court of Cassation.
Affirmance of Çilem’s judgement is worrying in terms of the files of Yasemin, Hülya, Name, Havva and many other women that are currently at the Court of Cassation, and unfortunately it is not difficult to predict the outcome.
Although it is clear that legally attack and defense are simultaneous in all of the above decisions, it is not permissible for the patriarchal judiciary to decide on impunity in line with self-defense. Because what he means by the attack is to be exposed to violence to the point of death. But the process does not progress in this way for women, women mostly die at that point. Without exception in all cases, there are protection orders, reports of assault, shelters whose doors have been knocked, and systematic male violence, which is obvious in all of them, but these are not enough to implement self-defense for the patriarchal judiciary. By ignoring systematic violence or not being seen as sufficient for self-defense, it separates the moment of crime and punishes women. Systematic violence is used only as an unjust provocation remission. The reason for implementing the unjust provocation is the policy of impunity for male violence, ignoring the moments women face death and assuming that women act with the anger created by the violence they are subjected to. Women are not exposed to violence once in their lifetime. When violence is systematic, when she has to kill to protect herself, not to die, against violence, it becomes self-defense. For example, if a woman is harassed on the street, if the harasser moves away but the woman goes after him and kills the harasser, we say that unfair provocation should be applied here. However, in such a case, the male judiciary does not apply that remission to women, even where unfair provocation is required. It also uses unfair provocation remission in case of self-defense. It’s always less of justice, that is, for women.
In the “male justice” system the similarization of the action of women, who are subjected to violence systematically and are sure that they will die if they do nothing, having no choice but to kill, with the 15-year prison sentence given to men with the remission like a reward considering even the statements that have no legal validity such as “she wore white tights”, “she asked a foreigner the time” as unjust provocation is a result of this policy of impunity.
However, the “femicides” in which men are perpetrators and the murders that women have to kill in order not to die have one thing in common: Dying or being killed after systematic male violence. However, the judiciary does not allow to question male violence and punishes women by ignoring male violence. In these files, each of which is a case of male violence, what the judiciary discusses is not the long-term systematic violence, oppression, rape or threat, but whether the survivor brings together the legally correct conditions for survival. Some steps determined as a precaution against male violence, such as going to the police station, calling the police, shouting for help, stand as necessary steps not to be passed over by the woman who defends her life.
With the policy of impunity for male violence, the judiciary punishes women who say no to men, claim their lives, and resist, telling women that “you have to endure the spiral of violence you are in” and also encourages male perpetrators. He continues his misogyny by using his sexist point of view against women on all occasions. In a male-dominated system where women are left helpless against male violence, every defense they make to save themselves is self-defense and the legal equivalent of this attitude should be impunity.
Translator: Gülcan Ergün
Proof-reader: Müge Karahan