Concise analysis of judgment ECtHR in the case of Akdas v. Turke

Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2010-8/1European Court of Human Rights: Akdas¸ v. TurkeyThe applicant in this case, Rahmi Akdas¸ is a publisher, residing in Bandirma, Turkey. In 1999 he published theTurkish translation of the erotic novel “Les onze mille verges” by the French writer Guillaume Apollinaire (“TheEleven Thousand Rods”, “On Bir Bin Kırbaç” in Turkish). The novel contains graphic descriptions of scenes ofsexual intercourse, including various practices such as sadomasochism, vampirism and paedophilia. Akdas¸ wasconvicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexualdesire among the population. The publisher argued that the book was a work of fiction, using literary techniquessuch as exaggeration or metaphor and that the post face to the edition in question was written by specialistsin literary analysis. He added that the book did not contain any violent overtones and that the humorous andexaggerated nature of the text was more likely to extinguish sexual desire.The criminal court of Istanbul ((Istanbul Asliye Ceza Mahkemesi) ordered the seizure and destruction of all copiesof the book and Akdas¸ was given a “severe” fine of EUR 1,100, a fine that may be converted into days of imprison-ment. In a final judgment of 11 March 2004, the Court of Cassation quashed the part of the judgment concerningthe order to destroy copies of the book in view of a 2003 legislative amendment. It upheld the remainder of thejudgment. Akdas¸ paid the fine in full in November 2004.Relying on Article 10, Akdas¸ complained about this conviction and about the seizure of the book. Before theEuropean Court it was not disputed that there had been an interference with Akdas¸’ freedom of expression, thatthe interference had been prescribed by law and that it had pursued a legitimate aim, namely the protection ofmorals. The Court however found the interference not necessary in a democratic society. The Court reiteratedthat those who promoted artistic works also had “duties and responsibilities”, the scope of which depended onthe situation and the means used. As the requirements of morals vary from time to time and from place to place,even within the same State, the national authorities are supposed to be in a better position than the internationaljudge 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 sincethe book had first been published in France (in 1907), to its publication in various languages in a large number ofcountries and to the recognition it had gained through publication in the prestigious “La Pléiade” series. Acknowl-edgment of the cultural, historical and religious particularities of the Council of Europe’s member states could notgo so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging tothe European literary heritage. Accordingly, the application of the legislation in force at the time of the eventshad not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and the seizure ofcopies of the book had not been proportionate to the legitimate aim pursued and had thus not been necessary ina democratic society, within the meaning of Article 10. For that reason, the Court found a violation of Akdas¸’ rightto freedom of expression.• Arrêt de la Cour européenne des droits de l’homme (deuxième section), affaire Akdas¸ c. Turquie, n◦ 41056/04 du 16 février 2010 (Judgment bythe European Court of Human Rights (Second Section), case of Akdas¸ v. Turkey, No. 41056/04 of 16 February 2010)http://merlin.obs.coe.int/redirect.php?id=12605FRDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.IRIS 1© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European court of human rights: case of Akdaş v. Turkey

https://biblio.ugent.be/publication/1069819/file/6720006

European court of human rights: case of Akdaş v. Turkey

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Ghent University Academic Bibliography