Published on 29 September 2025
SECOND SECTION
Application no. 15023/21
KAOS GEY VE LEZBIYEN KÜLTÜREL ARAŞTIRMALAR VE DAYANIŞMA (KAOS GL) DERNEĞI
against Türkiye
lodged on 22 January 2021
communicated on 11 September 2025
SUBJECT MATTER OF THE CASE
The application concerns the dismissal by the domestic authorities of the criminal complaints of the applicant, Kaos Gey ve Lezbiyen Kültürel Araştırmalar ve Dayanışma Derneği. The applicant is an association established under Turkish law and based in Ankara, whose main focus is combatting discrimination on the basis of sexual identity and orientation, and protection of the rights of persons of the LGBTI+ community. The complaints concerned the press articles entitled “There is no passage for homos in Mardin”, “Who will stop this perversion” and “Who will stop this arrogance” published in Yeni Akit, a daily newspaper with nationwide circulation. The articles in question concerned the events organised by the LGBTI+ community, including the applicant association, and referred to the members of the community concerned as “sexual deviants”.
The first article concerned a workshop on gender-focused journalism which had been organised by the applicant association, where its members, as well as the applicant itself, were referred to as “deviants” and “deviant homos”. The second article contained the following statement: “The public expects the authorities to stop perverted establishments such as KAOS GL, LGBTI, Pembe Hayat, SPod and Kırmızı Şemsiye, which want to spread their immoralities to the entire country by touching the nerve ends of the population”. The third article also referred to the applicant association as an “establishment of perverts”.
The applicant filed a criminal complaint against the directors of the aforementioned daily newspaper for the offences of incitement to violence and hatred and insult, relying on Article 216 of the Criminal Code. The Public Prosecutor rendered a non-prosecution decision dismissing the applicant’s claims. In doing so, he referred to a number of earlier precedents of the Court of Cassation, in which the latter concluded that Article 216 of the Criminal Code required an “imminent and clear danger” towards the public order as a constituent element of the offence of incitement to violence and hatred. In the public prosecutor’s view, this element had not been established in the present case, owing to his conclusion that the articles in question should be considered as being within the limits of the right to freedom of expression and freedom of the press even if the language used was harsh and severe. The Constitutional Court dismissed the applicant’s individual application in its decision of 13 November 2020, for failure to exhaust legal remedies without specifying which legal remedy it considered effective in such a case.
In its submissions, the applicant association asserts that in 2008 and 2010, it had filed two separate compensation claims before the civil courts against Yeni Akit on account of expressions used in published contents other than those subject to the present application. The domestic courts have rejected the applicant’s claims in one of these sets of proceedings, giving particular weight to the freedom of the press of the defendant. While the domestic courts have ruled in favour of the applicant association in the other set of proceedings, it is contended that the compensation ordered by the civil courts has never been paid.
The applicant association complains of a failure by the State to comply with its obligations under Article 8 of the Convention, arguing that the press articles, which in its view amount to hate speech and incitement to violence, cannot be justified by Article 10 of the Convention owing to their defamatory, degrading and hateful nature. It also maintains that by refusing to bring criminal proceedings against the directors of the above-mentioned newspaper, the judicial authorities did not only discriminate against members of the LGBTI+ community, in violation of Article 14 of the Convention, but also deprived them of their right to an effective remedy, in violation of Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Can the applicant association claim to be the victim of the alleged violations, within the meaning of Article 34 of the Convention (see Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, §§ 105 ss., 27 November 2023, and compare with Genderdoc‑M and M.D. v. the Republic of Moldova, no. 23914/15, § 25, 14 December 2021, and Association ACCEPT and Others v. Romania, no. 19237/16, §§ 46‑47, 1 June 2021)?
2. Did the applicant association duly exhaust the domestic remedies available in respect of its complaints under Article 8 of the Convention, within the meaning of Article 35 § 1 of the Convention? In particular:
(a) In the light of the information provided by the applicant association concerning the compensatory remedies it had previously sought before the civil courts in respect of other articles published in Yeni Akit, did the compensatory remedies constitute an effective domestic remedy for the said complaints, as required by Article 13 of the Convention in conjunction with Article 8 and/or by the procedural limb of the latter (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 149, 14 January 2020)?
(b) If not, can the criminal remedy available under domestic law be considered an effective domestic remedy for the complaints of the applicant association under Article 8 of the Convention?
3. Has there been a breach of the applicant’s right to respect for its private life within the meaning of Article 8 of the Convention, having regard to the content of the disputed articles (see, mutatis mutandis, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, §§ 58-61, ECHR 2012, and Lilliendahl v. Iceland (dec.), no. 29297/18, § 38, 12 May 2020)? In particular, do the expressions in the disputed articles fall under a category which is not covered by the protection of Article 10 of the Convention?
In that connection, did the judicial response given by the criminal and constitutional bodies to the applicant’s complaints concerning the expressions that the applicant considered to be discriminatory, defamatory, degrading and hateful against itself and the LGBTI+ community constitute a breach of the procedural obligations under Article 8 of the Convention (see Budinova and Chaprazov v. Bulgaria, no. 12567/13, §§ 87-90, 16 February 2021)?
4. Was the applicant association the victim of discrimination based on sexual orientation or gender identity as a result of the refusal to bring criminal proceedings against the directors of the Yeni Akit newspaper, contrary to Article 14 of the Convention taken in conjunction with Article 8 (see, mutatis mutandis, Beizaras and Levickas v. Lithuania, no. 41288/15, §§ 106-30, 14 January 2020)? In particular, was the applicant subjected to a difference in treatment as regards the interpretation of the provisions, in particular the provisions of Article 216, of the Turkish Criminal Code aimed at condemning defamatory acts and incitement to hatred against a section of the population based on differences in sexual identity?