Information Note on the Court’s case-law No. 127
February 2010
Akdaş v. Turkey - 41056/04
Judgment 16.2.2010 [Section II]
Article 10
Article 10-1
Freedom of expression
Seizure of translation of erotic literary work and conviction of publisher: violation
Facts – In June 1999 the applicant, a publisher, published the Turkish translation of the erotic novel Les Onze Mille Verges (“The Eleven Thousand Rods”) by the French writer Guillaume Apollinaire. The novel contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism, vampirism and paedophilia. In October 1999 the prosecuting authorities sought the applicant’s conviction for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. In September 2000 the court sentenced the applicant to a heavy fine and ordered the seizure and destruction of all copies of the book. At final instance, the Court of Cassation quashed the order to destroy copies of the publication, further to a 2003 legislative amendment, and upheld the fine, which could be converted into a prison sentence in the event of non-payment. The fine was paid in full by the applicant in November 2004.
Law – Article 10: The seizure of the translation of an erotic novel by a world-famous author and the applicant’s criminal conviction had constituted interference with the right to freedom of expression. The interference had been prescribed by law and had pursued the legitimate aim of protecting morals. Although the Court, taking into account the relative nature of moral conceptions in the European legal sphere, afforded States a certain margin of appreciation in such matters, in this particular case it could not underestimate the significance of the fact that more than a century had passed since the book’s initial publication in France in 1907, it had been published in various languages in a large number of countries and it had gained recognition through publication in the prestigious “La Pléiade” series in 1993, some ten years before the seizure of the book in Turkey. The scope of the margin of appreciation thus afforded – in other words acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States – could not extend so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Those factors formed a sufficient basis to conclude that the application of the legislation in force at the time of the events had not been intended to meet a pressing social need. In addition, the interference with the applicant’s rights, in the form of a heavy fine and the seizure of all copies of the book, had not been proportionate to the legitimate aim pursued and had thus not been necessary in a democratic society.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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