April 12, 2010
In the case of Akdas v. Turkey the Court was called upon to decide on a seizure of a novel. But it turns out, this is not just a novel, it is something more.
The applicant published a Turkish translation of the erotic novel “Les onze mille verges” by the French writer Guillaume Apollinaire, which contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism or vampirism.
The applicant was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. The seizure and destruction of all copies of the book was ordered and the applicant was given a “heavy” fine – a fine that may be converted into days of imprisonment.
The Court acknowledged that there had been an interference with freedom of expression, and that it had pursued a legitimate aim, namely the protection of morals. The Court also reiterated that the requirements of morals varied from time to time and from place to place, even within the same State. Thus a wide margin of appreciation was granted.
After stating that, the Court does not turn to examine the content of the book and reasonability of the actions of the national authorities when protecting the morals in a given time and place. The Court takes another path. After giving three reasons – more than a century has elapsed since the book has first been published in France (in 1907), its publication in various languages in a large number of countries, and the recognition it has gained through publication in the prestigious “La Pléiade” series- the Court concludes that this book is a part of the European literary heritage.
I would not have paid much attention to this statement made by the Court (as I am a lawyer and thus trained in a different realm of science), if it would not have the juridical consequences it has concerning the margin of appreciation – the Court states that the acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need.
I think it does not give much of accountability to the Court when the reasoning in this five-page judgment is twisted around and concerns almost only the notion of European literary heritage. More generally – accountability of any court would suffer when the reasoning and decisions are based on jurists’ considerations about literature, when a specific knowledge of the subject is required.
If one would decide to go deeper in examining the test the Court used to determine whether the novel is part of European literary heritage, one would find it not convincing – even though the novel was first published in 1907, it was officially banned in France until 1970, and even thought “La Pléiade” also includes classics of world literature, it has strong emphasis on works that were originally written in French.
I would like to conclude by asking a question about the discourse the Court took in this case. If two literary works of similar content and distribution arrangements in Turkey would be published – the one by Guillaume Apollinaire and the other one would be an internationally unknown work by Latvian author – would the fact that one of them is part of European literary heritage make any change to the effect on morals both works presumably can have?
By Maris Burbergs