Press Release No: Individual Application 44/17
28.12.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE FREEDOMS OF EXPRESSION, SCIENCE AND ART, AND PRESS DUE TO A LITERARY WORK DEEMED TO BE OBSCENE WITHOUT SUFFICIENT REASONING

On 26 October 2017, the Second Section of the Constitutional Court found a violation of the freedoms of expression, science and arts, as well as the freedom of press, which are enshrined respectively in Articles 26, 27 and 28 of the Constitution, in the individual application lodged by İrfan Sancı (no. 2014/20168).

The Facts

The applicant is the director and partner of a publishing firm which published the Turkish translation of “The Soft Machine”, a novel written by the American novelist and essayist William S. Burroughs.

The press office of the relevant chief public prosecutor’s office found that there were detailed depictions of homosexual intercourses in twenty separate sections of the novel and that there was no warning on the book cover for the protection of minors. Thereupon, the novel was sent to the Board for the Protection of Minors from Sexually Explicit Materials of the Prime Ministry (“the Board”) for receiving its opinion in this respect.

An examination was made by the Board consisting of eleven members −most of whom are elected from various public institutions− and assigned with the duty of assessing whether printed works would have an unfavourable effect on minors (under 18 years of age). Accordingly, the Board has found the novel obscene on the grounds that especially homosexual intercourses between men are explained in the novel to the extent that would tarnish the senses of shame and modesty; that it is not a literary work; that it would not make any additional contribution to the reader’s knowledge and it would incite the readers to perform criminal acts; that the content of the novel is in conflict with the social norms of the society and is immoral. In the report, it is underlined that an obscene novel will also be primarily detrimental, that the novel impairs the people’s senses of shame and modesty and is immoral in nature which arouses and exploits sexual desires, and that it is in breach of Article 226 of the Turkish Criminal Code no. 5237.

The chief public prosecutor’s office filed a criminal case against the applicant and the translator for acting as an intermediary for the publication of obscene works. In the indictment, the literary movement “Beat Generation” is discussed, and it is also indicated that those supporting the movement and called as “Beatniks” are defending personal salvation, spiritual purification and enlightenment by way of reaching intense sensorial awakening through drugs, jazz music, sexuality or Zen Buddhism, while displaying their strangeness towards the traditional or “closed-minded” section of the society. It is also emphasized therein that the author William S. Burroughs is one of the prominent members of this generation and has aimed at breaking several taboos and reaching a limitless freedom, as a consequence of the thoughts adopted by the movement.

The indictment further indicates that several sections of the novel include detailed depictions of sexual organs and homosexual intercourses as a result of which readers do not get the impression of eroticism. As no measure was taken in the novel for the protection of minors, the translator and the applicant publishing the novel were requested to be sentenced, in the capacity of the owner of the work.  

In his defence arguments, the translator maintained that the author is a widely-known, best-seller and a popular author in the world; that the impugned sections of the book appearing to be immoral are for breaking taboos; and that it is not proper to assess the novel merely from the ethical aspect.

In his defence arguments, the applicant noted; that the novel must be assessed as a whole as it was not proper to consider the work as obscene by means of extracting only some sentences or paragraph therein; that the author who was the pioneer of the “Beat Generation” movement had so far influenced several authors, musicians, film-makers and artisans; and that the work was written by the cut-up method, which was well-accepted by the literary world, and therefore, it was not possible to expect a work to be coherent whose author rejects stereotypes. 

The competent criminal court had a report issued by a panel of experts consisting of a criminal law lecturer and two lecturers from the department of English language and literature. In this report, it is indicated that the novel is one of the worldwide prominent literary works and is studied in the universities; that it is praised by prominent authors; that its content does not consist of merely social criticism but it has also exerted influence by its literal method; that sexuality is one of the means serving for the author’s social criticism and must not be considered to constitute the offence of obscenity.

The criminal court ordered suspension of the criminal proceeding and rendered the applicant subject to probation for three years pursuant to the Law no. 6352 on the Amendment to Certain Laws for Increasing the Efficiency of Judicial Services and the Suspension of Prosecution and Penalties Regarding Crimes Committed through Press, which entered into force after the issuance of the above-cited report.

The criminal court indicated in its decision that the decision was appealable before the Court of Cassation. However, following the appellate review, the Court of Cassation remitted the case-file to the inferior court on the ground that the decision was indeed non-appealable.

The applicant’s challenge to the Assize Court was dismissed.

The Applicant’s Allegations

The applicant maintained that the impugned novel is an artistic work and that although he should have been acquitted of the charges, he was subject to a three-year probation, which was in breach of the freedoms of expression and labour. He accordingly requested re-trial and compensation.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The freedoms to freely express and disseminate science and arts are specifically safeguarded by Article 27 of the Constitution. Those who create, print and publish the literary works make significant contributions to the dissemination of ideas. Therefore, artistic works are of great importance for a democratic society. States must act more delicately in respect of the obligation to prevent any unnecessary inferences in the freedom of expression of the creators of artistic works.

However, the Constitution does not provide an unlimited freedom of expression in terms of artistic works. The protection of public morality is enumerated as one of the grounds for restricting the freedom of expression. Moreover, in Article 41 of the Constitution, the State is required to take all kinds of measures for the protection of minors and for protecting them against all kinds of abuse and violence.

Nevertheless, in interfering in the publication of a literary work due to obscenity, a complex and ambiguous concept, the courts must, in their assessments, take into consideration as a whole characteristics of the field of art or of the artistic work in question; the context in which the parts considered to be obscene are expressed; identity of the author; time and aim of creation of the work; identities of targeted group and their sense of aesthetics; potential impacts of the work; and the remaining expressions within the work.

In the present case, it must be taken into account that in spite of non-existence of an already finalized conviction decision against the applicant, there is an official report which indicates that the applicant’s work is not an artistic work; that the applicant was directly influenced by the investigation and prosecution conducted against him for about four years; and that in his capacity as a publisher, he would be at risk of being exposed to investigation and prosecution once again in the future. For these reasons, it must be acknowledged that ordering the suspension of the applicant’s criminal proceedings and subjecting the applicant to probation for three years constitutes an interference with his freedoms of expression, art and press.

As in the present incident, it appears that the reports issued by the Board has a significant bearing on the obscenity cases. However, an assessment by a panel of eleven members who are generally bureaucrats, without a preliminary examination made by experts depending on the type of work,  leads to the issuance of reports in which the works −required to be indeed considered as intellectual, social or artistic− are found to be deprived of these qualifications. Therefore, declaring a work obscene by virtue of decisions which are issued by a penal not including even a pedagogue and sexual health professional and which are imprecisely formulated with general and abstract expressions poses a threat to the freedoms of expression and press.

In the instant case, the Board, the Istanbul Chief Public Prosecutor’s Office and the Panel of Experts stated that in the impugned novel, homosexual intercourses between men are depicted in an explicit and detailed manner. Nevertheless, the Istanbul Chief Public Prosecutor’s Office and the Panel of Experts also acknowledged the novel as a literary work.

The novel does not contain any representations such as picture or drawing required to be avoided by individuals. Given also the author’s complex discourse, it is rarely likely for minors to be exposed to its content. The novel is open to public access; however, its design is not of a nature which would attract everyone’s attention.

On the other hand, it has been concluded that in spite of its intellectual and artistic nature, the impugned novel is not appropriate for the whole society, and it may aggrieve those who are not familiar with the issues mentioned therein. Given its topic and discourse, this novel is classified as a specific publication targeting at a certain group of the society. Regard being had to the fact that it is a literary publication addressing to a small group of the society and to its obscene nature, it must be acknowledged that preventive measures to be taken for preventing access of certain groups, especially minors, to this publication –such as an expression or sign indicating that it is detrimental to the minors under 18− may amount to a pressing social need.

Therefore, following the determination of the artistic and literary nature of the work, the inferior courts must assess as to whether a measure is required to be taken for the protection of minors and whether a measure taken is proper or not. In the present case, the relevant court focused merely on the artistic and literary nature of the work without handling any matter with respect to the protection of minors. In its decisions, failing to demonstrate that it elaborated whether the impugned novel was compatible with the principle of the protection of minors, the court ordered the suspension of the applicant’s prosecution and rendered him subject to a three-year probation.  

In case of a dispute with regard to works in which obscene elements are found and which are alleged to be of scientific, artistic or literary nature, primarily the authorities exercising public power and then the inferior courts must determine whether the impugned works have any scientific, artistic or literary value. If these works are deemed to have such qualifications, it must be then considered whether the measures for the protection of minors have been taken during the presentation, publication and dissemination of the artistic and literary works, except for the scientific ones, and if taken, whether these measures are proportionate. Thereafter, a decision must be taken in light of such determinations. In the present case, it was not assessed whether the impugned novel was a literary work. Nor was it considered whether any measure must be taken for the protection of minors. The grounds relied on by the relevant courts are not relevant and sufficient.

Consequently, the Constitutional Court found a violation of the freedoms of expression, science and art, and press safeguarded by Articles 26, 27 and 28 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
Number of Visitors: