The role of high court of justice on engendering and reproduction of gender based violence: Unjust provocation in court of cassation

Gender based violence could be observed in almost all societies across the world. Similarly, gender based violence in Turkey needs to be investigated as both a legal and a social challenge. This study takes upon the task of analyzing court opinions and decisions on legal cases that involve violence against women as well as LGBTI individuals from an unjust provocation point of view. Specifically, the study investigates the application of unjust provocation to gender based violence cases, and assesses the extent to which societal norms are used as reference points and basis for rulings using unjust provocation as a key argument. Turkish Penal Code has clear legal preambles and rules, setting the conditions under which unjust provocation could be utilized for defense purposes. Unjust provocation, however, is used extensively as a defensive argument on cases that involve violence against women and LGBTI individuals. Article 29 of Turkish Penal Code No. 5327 regulates unjust provocation, by taking into account a priori conditions for a person committing an offense under extreme anger or distress which is caused by a previous unjust act. The Criminal Courts of First Instance and Turkish Court of Cassation have adopted rulings, and issued judicial decisions that take into account the perpetrator's mood in deciding upon the punishment for committing these violent deeds. This study aims to uncover the unjust provocation based arguments that have been put forward in legal defense on cases of gender based violence by analyzing the rulings published in the Journal of Legal Decisions by the Court of Cassation from 2004-2018.