Information Note on the Court’s case-law 201
November 2016
Kaos GL v. Turkey - 4982/07
Judgment 22.11.2016 [Section II]
Article 10
Article 10-1
Freedom of expression
Seizure and confiscation for more than five years of all copies of edition of a magazine containing article on “pornography”: violation
Facts – All the copies of an issue of a magazine published by the applicant, an association promoting the rights of the LGBT community, were seized by the domestic authorities in July 2006. The content of certain articles and images published as part of the “pornography” feature in the issue in question contravened the principle of protection of public morals. Confiscation of the copies of the magazine did not cease until February 2012, following a judgment of the Court of Cassation.
Law – Article 10: The seizure of all copies of an issue of a magazine amounted to an interference with the applicant’s right to freedom of expression, as prescribed by constitutional law and pursued the legitimate aim of protecting public morals.
The decisions given by the domestic courts did not indicate any reasons why any given article or image published in the relevant issue of the magazine infringed public morals. Consequently, it was impossible to accept that the domestic courts had duly assessed the criteria to be taken into account in order to restrict the applicant association’s freedom of expression. Accordingly, the argument concerning protection of public morals, relied upon in such a broad and unreasoned manner, was insufficient to justify the seizure and confiscation order for all copies of the relevant issue of the magazine for more than five years.
In the Court’s view, having regard to the content of the articles concerning the sexuality of the LGBT community and relating to pornography and to the explicit nature of certain images used which might be deemed liable to offend the sensibilities of sections of the general public, the relevant issue of the magazine could be considered as a specialised publication aimed at a specific section of society.
The magazine in question was therefore not appropriate for all sections of the public, a fact which the applicant association acknowledged. Accordingly, even though only a small number of copies of the magazine had been earmarked for sale in newspaper outlets, the measures implemented to block access by specific groups of persons, especially minors, to that publication could have been a response to a pressing social need.
However, although the need to protect the sensibilities of a section of the public, minors in particular, was acceptable for the purposes of protecting public morals, there was no justification for blocking the access of the whole general public to the impugned issue of the magazine. In that connection, the domestic authorities had not attempted to implement any preventive measure less drastic than the seizure of all copies of the issue, such as prohibiting its sale to persons under the age of eighteen or requiring special packaging with a warning for minors, or even withdrawing the publication from the newspaper kiosks, stopping short of seizing subscriber copies.
Even supposing that, as the decision of the domestic criminal court would suggest, the issues seized, accompanied by a warning for persons under the age of eighteen, could have been distributed after the return of the confiscated copies, that is to say after the Court of Cassation’s judgment of February 2012, the confiscation of the copies of the magazine and the delay of five years and seven months in distributing the publication could not be considered as proportionate to the aim pursued.
Consequently, the interference with the exercise of the applicant association’s right to freedom of expression was disproportionate.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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