Mehmet Tarhan possibly faces forced physical examination
Military Court of Appeals Overrules Objector's Case over lack of
physical examination "proving homosexuality"
The verdict that sentenced conscientious objector Mehmet Tarhan to a total
of 4 years on two different trials with charges of "insubordination"
was overruled November 2, 2005 by the Military Court of Appeals on the
grounds of procedure.
general's 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 general's suggestions
and Tarhan's lawyers numerous demands for appealing were not taken into
consideration by the military court of appeals.
Military court of appeals decided that the
local court's decision was correct on principle but they overruled
nevertheless on procedural grounds: namely that Tarhan's 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
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
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 Mehmet's bodily integrity. Forced physical examination
against one's 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 Mehmet's will. We do not yet know the trial date of the local
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
court's or the judge's 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
wouldn't involve any dangers to one's health.
(3) The process of the internal body examination or taking blood or
similiar biological samples can only be undertaken by physician or a
(4) The examination of the sexual organs or anus is called the internal
(5) A person can not be subjected to the internal body examination or the
process of taking blood or similiar biological samples from one's 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.
http://www.wri-irg.org/co/turkcampaign-en.htm (in English,
www.mehmettarhan.com (in Turkish
Organising list for solidarity with Turkish conscientious objector Mehmet
Tarhan. Archives of this list are available at
http://lists.wri-irg.org/sympa/arc/soli4mehmet List run by