Source: “Yargıtay, Fransızca kitabı ‘müstehcen’ buldu,” (“Court Finds French Book “Obscene”,”) Radikal, 6 August 2013, http://www.radikal.com.tr/turkiye/yargitay_fransizca_kitabi_mustehcen_buldu-1145084
The owner of the publishing house “Sel Yayıncılık” İrfan Sancı and the translator İsmail Yerguz were put on indecency trial for publishing and translating the book “The Exploits of a Young Don Juan” written by Guillaume Apollinaire.
Istanbul, 2nd Court of First Instance arrived at a verdict to acquit, since the book was a literary work and does not constitute crime. Then the verdict was appealed and the file was seen at the 14th Penal Chamber of the Supreme Court of Appeals. The Penal Chamber denounced the verdict of the Court of First Instance unanimously, dropped the decision, and requested the defendants to stand trial for 6 to 10 years imprisonment.
Not Within the Right to Freedom of Expression
The verdict of the 14th Penal Chamber of the Supreme Court of Appeals, emphasizes that though in the Article 10 of the European Convention on Human Rights, the foreseen freedom of expression embraces the communication of a person’s thoughts and artistic works to the public without being confronted with an intervention of any public authority, the aforementioned book on trial, expresses homosexual relations as well as zoophilia in a way that provokes and abuses sexual desires. The court made these evaluations: “The book in subject does not feature any plot and it is only oriented to activate the sexual impulses with a simple and ordinary writing style expressing anal sex, lesbian sex, unnatural sex and sex with animals, and children, using a banal language. In addition to these, the book is written in an offending way, against the feelings of shame of the society, it provokes sexual desires abusively, and simultaneously, defecation of some people are expressed in a disgusting way without putting in any artistic or literary value. The book’s translation from French and its publication, which contains expressions in the level of perversion towards the mother, aunt, sister, brother, the same sex and animals cannot be accepted as actions within the scope of pluralism, tolerance, and open mindedness within the freedom of expression in a democratic society.”
Furthermore, the verdict of the Supreme Court of Appeals refers to the decision of the European Court of Human Rights dated from September 7, 1976 called “Hanyside-United Kingdom” claiming that this decision sets the limits of publications that contain obscenity and pornographic expressions and emphasizes that in a democratic society, publications may be restricted in a legitimate way through penalties in order to protect public morality and health, and to prevent crimes and disorderliness.
Criticism of the District Court by the High Court of Appeal
The 14th Penal Chamber of the Supreme Court of Appeals criticized the District Court’s decision:
“During the investigation, according to the reports compiled by the two person Court Expert Committee dated April 28, 2009 and by the Prime Ministry Board of Protection of Minors from Obscene Publication dated August 11, 2010, it is against the law to acquit on the basis that the book has artistic and literary value by ignoring the aforementioned report’s evaluation that “the book has no artistic or literary value” and instead heeding the expert report that has been prepared using general and abstract terms, and also ignoring the actions of the accused when Article 226/5 of the Turkish Penal Code* considers them a crime.
ARTICLE 226–(1) Any person who involves in an unlawful act;
a) By allowing a child to watch indecent scene or a product, or to or hear shameful words,
b) By displaying these products at places easy to reach by children, or reading the contents of these products, or letting other to speak about them,
c) By selling or leasing these product in such a way open for public review,
d) By selling, offering or leasing these products at places other than the markets nominated for sale of these product,
e) By gratuitously supplying or distributing these products along with other goods or services,
f) By making advertisement of these products, is punished with imprisonment from six months to two years.
(2) The persons who publicize indecent scenes, words or articles through press and broadcast organs or act as intermediary in publication of the same is punished with imprisonment from six months to three years.
(3) Any person who uses children in production of indecent scenes, words or articles is punished with imprisonment from five years to ten years, and also imposed punitive fine up to five thousand days. Any person who engage in import, duplication, transportation, storage , export of these products, or presents the same to other’s use, is punished with imprisonment from two years to five years, and also imposed punitive fine up to five thousand days.
(4) Any person who produces products containing audio-visual or written material demonstrating abnormal sexual intercourse by using sex, or with animals, or body of a dead person, and engages in import sale, transportation storage of the same and presents such material to other’s use, is punished with imprisonment from one year to four years.
(5) Any person who publicizes the contents of the products mentioned in third and fourth subsections through press and broadcast organs, or acts as intermediary in publication of the same, or lets children to read, hear or see this material is
punished with imprisonment from six months to ten years, and also imposed punitive fine up to five thousand days.
(6) Security precautions specific to legal entities are imposed due to such offenses.
(7) Excluding third subsection, the provisions of this article may not be applicable for the works of art which are produced for scientific, artistic or literary purposes in order to avoid children to reach such material.