The General Criminal Assembly of the Supreme Court of Appeals decision read that Orhan Munis committed the murder of Hatice Kaçmaz without premeditation, and due to an “emotional breakdown and with an instant rage” because he was rejected by her. The decision passed with 5 votes against the 14 votes in favor. Orhan Munis stabbed with a knife and killed Hatice Kaçmaz, whom he invited to the park by saying “let’s talk one last time”. In the decision, the reason/justification for the murder was shown as passionate love, and it was described as follows: “The accused who wanted to marry the victim took a knife with him as his mood was under the effect of emotionality and anger stemming from the excessive love and passion he felt for the victim, who repeatedly refused him and shared her thoughts about breaking up with him. The accused stabbed the victim as a result of this anger.” We discussed the decision with lawyer Deniz Bayram.
The General Criminal Assembly of the Supreme Court of Appeals (the General Criminal Assembly, hereafter) decided to reduce the sentence for committing femicide. What does this decision tell us in terms of femicides and implementation of law?
In recent weeks, the Minister of Justice announced that the new judicial reform package is repealing the regulations around sentence reductions for femicides. We know from various examples that the legal system in Turkey is now shaped by reactive maneuvers to social events rather than systematic, fair, modern legal rules and internationally accepted legal logic.
When there is a case of violence that deeply affects and upsets the society and causes public debate, there are announcements about amendments to laws that follow them. It is as if these new regulations are not put in place to prevent crimes against women, eliminate violence, or create effective legal mechanisms and ensure their accessibility, but to pacify and calm the society.
The discourse claiming that, although Turkey withdrew from the Istanbul Convention, its laws, legal system is going to continue to protect women only serves to abate a quality public discussion on the issue. In a system where, at least, the legal mechanisms against gender-based discrimination exist, the decision of the Court of Appeals General Criminal Assembly serves as a clear proof that, for women, there is no security of life unless there are mechanisms to hold the state and the judges who take these decisions accountable – just like the Istanbul Convention would. These decisions seem to be taken as if the authorities are blind to the fact that femicide is a problem in Turkey; sentence reductions involving unjust provocation and discussion of specific details of premediated murders reveal a specific gender pattern; and that they are referring to a framework of criminal law that is outdated instead of modern rules of law.
The fact that the General Criminal Assembly ruled the decision means that the legal discussions surrounding an incident, and how incidents are examined, set a precedent. The decision of the General Criminal Assembly is final and does not allow for first instance courts to challenge it. Therefore, the criteria set forth to determine certain phenomena within the body of text of the decision set an example for future, widespread use.
With regards to the case at hand, there is an ongoing discussion about whether the murder of a woman was premediated or not. From what has been reported by the press, a sentence reduction is out of question. But the discussion around whether the murderer premediated the murder considers the characteristics of the crime of murder by design and the elements of the crime.
Before moving on to this discussion on the crime of murder by design, it would be useful to give the following information and refresh our memory.
Article 81 of the Turkish Penal Code regulates the criminal responsibility of intentional killing whereas Article 82 regulates the types of the crime of intentional killing. The cases in which the crime of intentional killing is considered qualified and aggravated life imprisonment is required are as follows:
a) With premeditation,
b) Brutally or through torment;
c) By causing fire, flood, destruction, sinking, bombing or by using nuclear, biological or chemical weapons;
d) Against a direct ascendant, direct descendant, spouse, divorced spouse or sibling;
e) Against a child or against somebody who cannot protect himself physically or mentally;
f) Against a pregnant woman, in knowledge of such pregnancy;
g) Against a person because of the public service he/she performs;
h) In order to conceal an offense, destroy evidence, facilitate the commission of another offense or prevent apprehension;
i) Out of frustration for not being able to commit another offense;
j) With the motive of a blood feud;
k) With the motive of tradition.
So, there is a long list of types of killing that qualify as intentional killing.
For years now, the pattern regarding the gender disparity in these killings has not been included in this list. Before we discuss whether an act of crime was premeditated or not, it is important not only to acknowledge the existence of gender patterns regarding the sentences that receive sentence reductions for the crimes committed against women, but also that willful killing is a type of major crime within today’s legal framework.
Why shouldn’t killing of women who reject marriage proposals of men, or simply men, constitute a major crime when killing someone for performing a public service, or killing out of frustration for not being able to commit another offense do constitute one. It’s difficult to fathom why crimes that reveal gender-based-inequality patterns do not constitute major crimes, especially in a country where gender inequality is deeply entrenched in society; femicides are a constant social problem; male perpetrators/murderers receive sentence reductions and do not serve time in prison proportionate to the crimes they have committed, and that creates social discontent, as much as femicides do.
The principle concerning crimes and punishments is legality. Therefore, of course, the party concerned with this issue is not the General Criminal Assembly, but the legislator.
Yet, recent history reveals a trend of discrimination between married and divorced women when we examine the legal regulation of intentional killing in their cases.
While it is possible for the husband to receive lifetime imprisonment sentence for committing a major crime, that is killing his wife, in the cases of divorced couples, the murderers have not been receiving the same sentences. Not until 2021 it was regulated that if the divorced spouse is killed, the crime will be punished with aggravated life imprisonment – as part of the judicial reforms based on the discourse that claims Turkey is fortifying its laws despite having denounced the Istanbul Convention.
This regulation continues to discriminate among women. For example, when a man kills a woman to whom he is married through a religious marriage contract (imam nikahı, which is not recognized by the State to constitute legal marriage), it is still not considered a major crime. Similarly, the crime of murder committed in other forms of relationship between a man and a woman, as partners, engaged or lovers, is not considered a major crime either. This regulation only recognizes kinship relationships between the two.
Regarding how major crimes are defined, in the event that a man commits a crime on the grounds that the woman victim has not complied with his demands or accepted his offers –meaning he committed a crime based on the control he has, or would like to have, over the woman’s decisions, life, and body– we have to ask, is it more fair to examine the relationship between the man and the woman, in terms of whether they are married or not, or the control dynamics that reflect gender inequality enabling the crime.
If we go back to the aforementioned case, the decision of the Supreme Court of Appeals General Criminal Assembly is that the crime does not constitute murder by design, and therefore aggravated life imprisonment cannot be imposed.
The criteria set forth the Supreme Court of Appeals decisions to determine premediated murders, carry the potential to set legal precedents, are:
- Unconditional/independent decision to kill;
- Not giving up on the determination to act even after a reasonable period of time has passed to calm down mentally;
- Carrying out the act of killing with perseverance and persistence by making a specific plan.
How can we discuss the act of premeditation according to these criteria, especially considering the systematic nature of the acts of violence against women that involve gendered patterns, and how they are shaped in time with relation to power and relational dynamics?
Not all acts of violence have evidence, and not all acts of violence are physical. For instance, a Supreme Court of Appeals decision has concluded that the premeditation criteria are not met due to the absence of any evidence that the perpetrator threatened the victim before committing the act. We know very well from our experience in the field about violence against women that acts of violence and threatening behaviors based on power relations and control, anger venting dynamics between men and women can be highly specific, invisible; and they can be committed without evidence.
What is the implication of this decision for future trials?
The General Criminal Assembly makes a very clear determination that when a woman refuses a man’s marriage proposal, the man can get angry and commit a crime, and this determination has two meanings. First, this determination concerns the decision makers; judges, prosecutors will search for reasons regarding a male perpetrator’s possible “emotional breakdown” in cases.
If we are talking about a subjective basis, such as an emotional breakdown, everything can now cause fragility and emotional breakdown in men; whether it is that the woman does not respond, or expresses that she does not like the man, or that she does not consent to the relationship or being in contact, or does not approve of something… We can say that this decision by the Supreme Court of Appeals introduced male fragility to the legal sphere. Secondly, this decision places an invisible limit on women’s power over their own decisions and bodies; and allows for the following logic: “If I refuse a man’s marriage proposal, that man may experience an emotional breakdown, and this emotional breakdown corresponds to something in the legal system.”
Orhan Munis fastens a 19.9 cm knife to his wrist at that last meeting where the murder was committed. The Supreme Court, on the other hand, does not see this as evidence of premeditated murder and says that the murder took place “on the basis of the possibility that the marriage request is refused”. Is walking around with a 20 cm knife common or unsuspecting from a legal point of view?
In his statement, the man states that he kept the knife with him because he was going to buy an animal to sacrifice for religious purposes. According to the information made public in the case file, there is no data or evidence to support this statement. However, the General Criminal Assembly seems to have discussed the events and facts in this case with the aim of preparing a justification for the absence of premeditation, instead of evaluating the objective evidence of the dynamics of gender-inequality-based violence.
Is the “premeditation” clause, which is an aggravating clause in the sentence, ever applied in femicide cases? Considering that murders are the last stage of male violence, that is, the result of a systematic process, how does the law perceive male violence?
I really liked a slogan the feminist movement came up with, as part of the “Kadın Cinayetlerine İsyandayız” [We Revolt Against Femicide] campaign –I was among the organizers of it in Istanbul– during the 2010s: “Dayakla başlar, cinayetle bitebilir.” [It starts with hitting; it could end in killing.] Violence against women is a systematic phenomenon. It’s not a one-time, stand-alone event. Violence has thousands of facets. You can see the whole of it when you list these facets one after the other. That holistic story is the man’s effort to gain control over the woman’s body, her decisions, and her life, and his motivation to release anger and punish the woman when he fails to do so.The above-mentioned criteria adopted by the Supreme Court of Appeals make it difficult to determine the existence of premeditation in crimes against women and involving violence against women, especially considering the specifics of the evolving process between the woman exposed to the crime and the perpetrator of violence, and the systemic, step-by-step, and steadily developing nature of violence and controlling, and the lack of evidence concerning them.
Women in Turkey and all around the world are being killed. These killings take place out in the open –as in the case of Ayşe Yılbaş–, or with monstrous motivations and involve torture –as in the case of Pınar Gültekin–, or behind closed doors, under the guise of suicide – as in the case of Şule Çet.
Upon realizing the links between the cases they are presented, the decision makers within the legal sphere should not be bound to odd and compelling criteria abstracted from the realities of the social order that surround them; and they should not treat the cases as if they take place in outer space. These events are taking place in a particular social order in particular ways, involve crimes committed by particular persons, and end up with perpetrators presenting similar defenses for their actions. Among the criteria establishing premeditated murder, there needs to be clear evidence indicating whether there was a prior threat, whether the threat was clear, and whether the murder weapon was acquired with the intention of murder.
The Committee, which signed the decision with 5 votes against it, is composed of a woman and 18 men.
Personally, I don’t think it should be a priority to know if the decision makers in areas like the courts are men or women. Women judges or decision makers may also consider cases of femicide or violence against women from a sexist point of view and decide accordingly. Just as we cannot exclude female judges, who display their sexist point of views, from the oppressed state of womanhood, we should not be approaching women judges who do the right thing with gratitude. The realization of justice should not depend on the decision makers’ personal backgrounds, thoughts, and capability for empathy.
In a land and a system where it is tremendously difficult to see the injustice, we need to be alert about the fact that men have a greater capacity to empathize with men; therefore, to empathize with the perpetrators. The fact that decision makers are men becomes important as a result of masculinity, gender inequality and its legitimization through different cultural, traditional, social reasons– as well as their strong capacity for empathy. But what do we mean by the ability to empathize?
I believe, thinking a man might have had a momentary emotional breakdown because his marriage proposal was rejected is more of a mood the judge is able to feel by putting himself in the shoes of the perpetrator– rather than a legal argument of a judge. It’s more like thinking like a man would, feeling like a man would, getting angry like a man would, going mad like a man would, panicking like a man would… We can say that this justification is not legal. We can call it empathizing with masculinity, or that the decision maker having an emotional bond with the event. However, the courts and the office of judges are not places to settle cases through empathy, they exist to implement justice.
The Justice and Development Party (AKP) withdrew Turkey from the Istanbul Convention and announced that there will be new regulations put in place to prevent male violence. They added that men will no longer be able to receive sentence reductions for good conduct– that is simply wearing a tie at the hearing. Could you comment on the state of law, considering the disparity between the laws spelled out versus their implementation, in conjunction with the decision we have been talking about?
Sentence reductions granted for good conduct, or what has been termed a “tie discount”, was used to justify impunity in cases brought to court concerning violence against women. But today, we are not talking about the “tie discount”. The matter at stake is much more serious than that. With the annulment of the Istanbul Convention, both the public at large and the decision makers adopted a perspective of impunity, through which violence against women is not prevented by the strictest and most accountable mechanisms anymore. The Istanbul Convention turned into a redline that determined whether women’s rights are protected or not. A new understanding was created around the Convention that claimed the more you opposed the Convention, the more you supported women’s rights.
The only way to do away with this understanding and to re-accept women as equal individuals in the legal system is to become a party to the Istanbul Convention again.
For the original in Turkish / Yazının Türkçesi için
Translator: Deniz İnal
Proof-reader: Müge Karahan