Is the Unjust Provocation Reduction Itself Unjust?

Applying an unjust provocation reduction in favour of the defendant in the judgment for the brutal killing of Pınar Gültekin—closely followed by the public—shocked sensitive public opinion. What could that young woman have done to “justify” being stuffed alive into a barrel, burned, and covered with concrete, so that this burly bar owner from a prominent Muğla family was, in the court’s view, unjustly provoked? The judgment held that the deceased Gültekin had threatened to tell Avcı’s wife and circle about their extramarital relationship, and that this constituted blackmail under Article 107 of the Turkish Penal Code. On that reasoning, the court found that all conditions of unjust provocation under Article 29 were met and reduced the sentence because the defendant acted in anger at the victim’s allegedly wrongful conduct. Calling this “established” stretches credibility. As this case shows, every murder defendant will seek at least a quarter—or even half—reduction through an unjust provocation defence. Victims cannot contest those claims; whether there truly was a wrongful act by the victim that upset, angered, or frightened the defendant becomes hard to assess, and criminal justice’s ultimate aim—material truth—cannot be reached without reservation. Counsel for the Gültekin family, Epözdemir, has noted that perpetrators of femicide constantly invoke this defence, which he calls one of Turkish justice’s core paradoxes.

Without the full file, one must ask whether evidence beyond the defendant’s self-serving—or possibly invented—account truly led the court to that conclusion. On what is known, the extreme physical, social, and economic inequality against the woman makes a coherent argument of provocation, or of justifying the defendant, difficult. Even if the claim that Pınar demanded money or blackmailed him were true, the proper response is to complain to law enforcement. Instead of reporting the alleged blackmail to the police or the courts, the defendant chose to commit an extremely grave and brutal crime. The judiciary, whose duty is to protect social order by sanctioning crime, rewarded him with an unjust provocation discount. What a contradiction.

Another development sets the Pınar Gültekin case apart. In earlier proceedings, the judiciary’s gendered stance in criminal cases often appeared as follows: In high-profile cases watched by women’s organisations and feminists, that problematic attitude had been less able to put a masculine identity centre stage. The unjust provocation reduction in Pınar Gültekin’s case raises the possibility that the court disregarded the reaction of women’s groups and the public. It is striking that even in cases under public scrutiny, masculine identity in the judiciary may no longer feel any need to withdraw. If that assessment is correct and continues—withdrawal from the Istanbul Convention will only reinforce the attitude—neither the Constitution’s rule that women and men have equal rights and the State must ensure equality (Art. 10) nor the protective measures of Law No. 6284 on Protection of the Family and Prevention of Violence against Women can save women from gendered violence. Judicial practice and culture can bend protective statutes until they lose effect. If the judiciary will protect its masculine identity even in famous cases and ignore women’s struggle against violence, being a woman—and being human—in Turkey will become still harder. • The “suit-and-tie” discount known as good-conduct mitigation • Unjust provocation reductions shaped especially around notions of honour • Failure to move away from the lower end of the sentencing range so that penalty matches the act

Pınar Gültekin, a student at Muğla Sıtkı Koçman University’s Faculty of Economics and Administrative Sciences, left her home in Ula district on 16 July 2020 and was not heard from again. According to information shared by family and friends on social media, she was last seen waiting at a stop to go from Akyaka to Muğla. It was also reported that she went to a shopping centre in Menteşe wearing a white dress. Gendarmerie focused the search around that shopping centre. While efforts continued, a tip reported a woman’s body in a wooded area in rural Yerkesik neighbourhood of Menteşe. It was established that before disappearing Gültekin had sat with a man at the shopping centre and left with the same person. Police and gendarmerie followed Cemal Metin Avcı after he bought petrol in a large plastic bottle at a fuel station. Arrested at home, Avcı confessed at the gendarmerie: he said he entered a jealousy crisis and killed Gültekin during a fight. The case was first heard at Muğla 1st Assize Court, where Avcı was sentenced to 23 years’ imprisonment with an unjust provocation reduction. On the family’s appeal the file went to İzmir Regional Court of Appeal, 4th Criminal Chamber, which sentenced Cemal Metin Avcı to aggravated life imprisonment and his brother Mertcan Avcı to four years for concealing evidence.