Conscientous Objector 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.

The attorney 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 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 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 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 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 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 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. (in English, German,French, Spanish) (in Turkish) ~ (in Turkish and English)

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