129
16.02.2010
Press release issued by the Registrar
Chamber judgment1
Akdas v. Turkey (no 41056/04)
SEIZURE OF THE NOVEL Les ONZE MILLE verges BY Guillaume Apollinaire and conviction of the publisher hindered public access to a work belonging to the european literary heritage
Unanimously:
Violation of Article 10 (freedom of expression)
of the European Convention on Human Rights
Principal facts
The applicant, Mr Rahmi Akdaş, was born in 1958 and lives in Bandırma. He is a publisher and in 1999 published the Turkish translation of the erotic novel Les onze mille verges by the French writer Guillaume Apollinaire (“The Eleven Thousand Rods” – On Bir Bin Kırbaç in Turkish), which contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism or vampirism.
Mr Akdaş was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. The applicant argued that the book was a work of fiction, using literary techniques such as exaggeration or metaphor, and that the postface to the edition in question was written by specialists in literary analysis. He added that the book did not contain any violent overtones and that the humorous and exaggerated nature of the text was more likely to extinguish sexual desire.
The seizure and destruction of all copies of the book was ordered and the applicant was given a “heavy” fine – a fine that may be converted into days of imprisonment – of 684,000,000 Turkish liras (equivalent to approximately 1,100 euros). In a final judgment of 11 March 2004 the Court of Cassation quashed the part of the judgment concerning the order to destroy copies of the book, in view of a 2003 legislative amendment. It upheld the remainder of the judgment.
Mr Akdaş paid the fine in full in November 2004.
Complaints, procedure and composition of the Court
Relying on Article 10, the applicant complained about his conviction as publisher of the novel Les onze mille verges by Guillaume Apollinaire and about the seizure of the book.
The application was lodged with the European Court of Human Rights on 2 September 2004.
Judgment was given by a Chamber of seven judges, composed as follows:
Françoise Tulkens (Belgium), President,
Ireneu Cabral Barreto (Portugal),
Vladimiro Zagrebelsky (Italy),
Danutė Jočienė (Lithuania),
Dragoljub Popović (Serbia),
András Sajó (Hungary),
Işıl Karakaş (Turkey), Judges,
and also Françoise Elens-Passos, Deputy Section Registrar.
Decision of the Court
It was not disputed that there had been an interference, that the interference had been prescribed by law and that it had pursued a legitimate aim, namely the protection of morals. The Court further reiterated that those who promoted artistic works also had “duties and responsibilities”, the scope of which depended on the situation and the means used.
The requirements of morals varied from time to time and from place to place, even within the same State. The national authorities were therefore in a better position than the international judge to give an opinion on the exact content of those requirements, as well as on the “necessity” of a “restriction” intended to satisfy them.
Nevertheless, the Court had regard in the present case to the fact that more then a century had elapsed since the book had first been published in France (in 1907), to its publication in various languages in a large number of countries and to the recognition it had gained through publication in the prestigious “La Pléiade” series. Acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage.
Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and the seizure of copies of the book had not been proportionate to the legitimate aim pursued and had thus not been necessary in a democratic society, within the meaning of Article 10. There had therefore been a violation of that provision.
The Court considered that it was not necessary to examine the applicant’s other complaints.
Since the applicant did not submit a claim for just satisfaction within the time allowed, there was no need to make any award on that account.
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The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.