“Flash lesbian decision by the Constitutional Court”

The request to cancel the article of The Turkish Penal Code (TPC), which prescribes punishment against distributors of pornographic movies that involve “unnatural ways of sexual relationship such as anal, oral, gay, lesbian,” was discussed [in court].

Source: Sözcü, “AYM’den flaş lezbiyen kararı”, (“Flash lesbian decision by the Constitutional Court”), 18 April 2015, http://www.sozcu.com.tr/2015/gundem/aymden-flas-lezbiyen-karari-807630

The [Constitutional] Court denied the cancellation request with majority rule. However, the justices who argued that the Court’s opinion was vague and who dissented to it argued stated that “Such relations are within the framework of personal freedoms. ECtHR [European Court of Human Rights] decisions too follow this perspective.”

Charges on the basis of TPC Article 226 [see footnote 1] were brought against a person who was caught selling pornographic movies that included lesbian sexual relation. As part of the processions, Aydın’s 3rd Criminal Court appealed to the Constitutional Court for the cancellation of the term “unnatural ways” used in the article. The [Criminal] Court argued that this term was open to interpretation and that consensual sexual relations in “unnatural ways” cannot be considered an offense.

However, the Constitutional Court denied the request with a majority vote. The Court’s opinion emphasized that the punishments prescribed by the article in question refers not to personal circumstances but to the distribution of pornographic images that display different sexual preferences. Justices Serruh Kaleli and Serdar Özgüldür, who dissented to the opinion, said:

“The term ‘unnatural ways’ is wholly indeterminate. ECtHR decisions have affirmed that, excluding incest, circumstances that do not involve force, violence and that depend on [the presence of mutual] consent are in fact protected by the principle of personal privacy and that this is an issue of freedom. In this respect, the rule that is subject to the cancellation request is clearly against the principle of the constitutional state. Furthermore, the fact that it violates the principle of personal privacy is self-evident.”

 


[1] The full text of the article in question, which outlines punishments for the possession and distribution of “obscene” products, is provided below. The Turkish Penal Code does not provide a definition of “obscenity.” -Trans.

“Türk Ceza Kanunu [Kabul Tarihi: 26.9.2004]” (“The Turkish Penal Code [as of 26 September 2004]”), Grand National Assembly of Turkey, http://www.tbmm.gov.tr/kanunlar/k5237.html

Obscenity

ARTICLE 226. – (1) The person

a) who gives, or shows, reads, makes read, or makes listen to a child the content of products that include obscene images, texts, or audio,

b) who shows in public, or displays in places where children may access or see, or displays, reads, makes read, speaks, or makes speak in a visible manner the content of these,

c) who distributes these products for sale or rental in a way that allows one to become acquainted with their content,

d) who distributes for sale, sells, or rents these products in other shopping places than where they have been assigned to,

e) who gives or distributes these products free of charge as part of or as gift along with other products or services,

f) who advertises these products,

are punished by two to six years of prison and judicial fine.

(2) The person who publishes or mediate the publication of obscene images, texts, or audio through the media is punished by 6 months to three years of prison and up to five thousand days of judicial fine.

(3) The person who uses children in the production of products that include obscene images, texts, or audio is punished by five to ten years of prison and up to five thousand days of judicial fine. The person who imports, reproduce, distribute for sale, sells, transports, stores, exports, possess, or provides for others’ use is punished by two to five years of prison and up to five thousand days of judicial fine.

(4) The person who produces, imports, distributes, sells, transports, stores, shows, or possesses products that include textual, audio, or visuals that incorporate violent sexual behaviors or sexual behaviors that involve animals, corpses, or unnatural ways, are punished with one to four years of prison and up to five thousand days of judicial fine.

(5) The person who publishes or mediates the publications in the media and who enables for children to see, listen to, or read the content of the products outlined in paragraphs three and four [above] is punished with six to ten years of prison and up to five thousand days of judicial fine.

(6) Specific security measures are to be taken against legal persons [e.g. corporations, in contrast to “real persons,” e.g. individuals] due to these offenses.

(7) The provisions of this article cannot be exercised against scientific works and, with the exception of the third paragraph and with the condition that children’s access to them is prevented, to works with artistic and literary value.

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