Voorhoof, Dirk

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Ghent University Academic Bibliography

IRIS 2017-2/1European Court of Human Rights: Kaos GL v. TurkeyThe case of Kaos GL v. Turkey is an example of a case whose findings breach Article 10 of the European Conventionon Human Rights (ECHR) on the right to freedom of expression of a particular kind. The case concerns theseizure of all the copies of a magazine published by Kaos GL, a cultural research and solidarity association forlesbian, gay, bisexual, and transgender people (“LGBT”). The European Court of Human Rights (ECtHR) foundthat the aim of protecting public morals relied upon by the Turkish authorities had been insufficient to justify theprior-censorship of the LGBT-magazine for more than five years. The judgment also shows the European Court’swillingness to extend the protection of Article 10 ECHR to sexually explicit expression, while demonstrating theneed for proportionate interferences with the right to freedom of expression in the light of the protection of minorsagainst sexually explicit content. In 2006, the Criminal Court of First Instance of Ankara, at the request of theChief Prosecutor, ordered the seizure of the 375 copies of issue 28 of the magazine Kaos GL with a view tolaunching criminal investigations. The issue in question contained articles and interviews on pornography relatedto homosexuality, illustrated with explicit images. The Criminal Court considered that the content of some of thearticles and some of the images published were contrary to the principle of protection of public morals. An appealagainst this decision was dismissed, while the president and editor-in-chief of Kaos GL magazine, Mr Güner, wassubsequently charged with publishing obscene images via the press, an offence punishable under Article 226§ 2 of the Turkish Penal Code. In particular, a painting reproduced in the magazine, which showed a sexualact between two men whose sexual organs were visible, was considered obscene and pornographic. In 2007,however, the Ankara Criminal Court acquitted Mr Güner of the charge against him. It held that not all the factorsconstituting the offence were present. It also ordered the return of all the copies of the magazine seized, althoughthe execution of this order was not implemented by the Turkish authorities. In 2012, the Court of Cassation upheldthe judgment of the Ankara Criminal Court. In the meantime, relying on its right to freedom of expression, KaosGL lodged an application before the ECtHR, complaining of the seizure and continued confiscation of its issue 28and the criminal proceedings brought against Mr Güner.While the European Court decided that Kaos GL’s complaint about the criminal proceedings against Mr Güner wasinadmissible ratione personae, it substantially evaluated whether the seizure and confiscation of the magazineamounted to a justified interference with the magazine’s right to freedom of expression guaranteed by Article10 ECHR. While there was no doubt that the seizure of all copies of the magazine was prescribed by law andpursued the legitimate aim of protecting morals, the European Court considered that the reasons given by thedomestic court were not convincing with regard to the necessity and the proportionate character of their seizureand confiscation. According to the Court, there was nothing in the decision of the Criminal Court to seize themagazines to suggest that the judge had examined in detail the compatibility of the magazine’s content with theprinciple of protection of public morals. Nor did the Criminal Court’s decision to dismiss the appeal against theseizure decision set out any further relevant details or reasoning. The European Court accordingly considered thatthe protection of public morals argument, advanced in such a broad, unreasoned manner, had been insufficientto justify the decision to seize and confiscate all the copies of issue 28 of Kaos GL for over five years. Based on itsown analysis of the impugned publication, having regard to the content of the articles and referring to the explicitnature of some of the images in the magazine at issue, the Court expressed the opinion that issue 28 of KaosGL could be considered as a publication specifically aimed at a certain social category. Despite its intellectualand artistic characteristics, some of the content could indeed be considered as possibly offending the sensitivitiesof a non-warned public. The Court accepted that the measures taken to prevent access by specific groups ofindividuals - including minors - to this publication might have met a pressing social need. However, it emphasisedthat the domestic authorities had not attempted to implement a less harsh preventive measure than the seizureof all the copies of the magazine, for example by prohibiting its sale to persons under the age of 18 or requiringspecial packaging with a warning for minors. Even if the issue seized, accompanied by a warning for persons underthe age of 18, could have been distributed after the return of the confiscated copies, that is to say after the Courtof Cassation judgment of 29 February 2012, the Court held that the confiscation of the copies of the magazine andthe delay of five years and seven months in distributing the publication could not be considered as proportionateto the aim pursued. The Court therefore held that the seizure of all the copies of issue 28 of the magazine Kaos GLamounted to a disproportionate interference with the exercise of Kaos GL’s right to freedom of expression and hadnot been “necessary in a democratic society”. The Court is unanimous in finding that therefore there has been aviolation of Article 10 ECHR.• Arrêt de la Cour européenne des droits de l’homme, deuxième section, affaire Kaos GL c. Turquie, requête n◦ 4982/07, 22 novembre 2016(Judgment by the European Court of Human Rights, Second Section, case of Kaos GL v. Turkey, Application no. 4982/07, 22 November 2016)http://merlin.obs.coe.int/redirect.php?id=18309IRIS 1FRDirk VoorhoofHuman Rights Centre, Ghent University (Belgium), University of Copenhagen (Denmark), Legal Human Academyand member of the Executive Board of the European Centre for Press and Media Freedom (ECPMF, Germany)The 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.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: KAOS GL v. Turkey

https://biblio.ugent.be/publication/8510265/file/8510271.pdf

European Court of Human Rights: KAOS GL v. Turkey

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