REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
SECOND SECTION
JUDGMENT
İRFAN SANCI
(Application no. 2014/20168)
26 October 2017
On 26 October 2017, the Second Section of the Constitutional Court found violations of the freedoms of expression, science and the arts as well as of the press safeguarded respectively by Articles 26, 27 and 28 of the Constitution in the individual application lodged by İrfan Sancı (no. 2014/20168).
THE FACTS
[7-35] 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.
V. EXAMINATION AND GROUNDS
36. The Constitutional Court, at its session of 26 October 2017, examined the application and decided as follows:
A. Alleged Violation of the Freedom of Expression
37. The applicant maintained that the impugned novel was 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.
2. The Court’s Assessment
38. Article 26 of the Constitution titled “Freedom of expression and dissemination of thought” reads, in so far as relevant, as follows:
“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities...
The exercise of these freedoms may be restricted for the purposes of ... public order...
The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law.”
39. Article 27 § 1 of the Constitution titled “Freedom of science and arts” reads as follows:
“Everyone has the right to study and teach, express, and disseminate science and the arts, and to carry out research in these fields freely.”
40. Article 28 of the Constitution titled “Freedom of the press” reads, in so far as relevant, as follows:
“The press is free, and shall not be censored...
The State shall take the necessary measures to ensure freedom of the press and information.
In the limitation of freedom of the press, the provisions of Articles 26 and 27 of the Constitution shall apply...
Periodical and non-periodical publications may be seized ... by order of the competent authority explicitly designated by law, in situations where delay may constitute a prejudice with respect to the protection of … public morals...”
41. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The Court assessed that the applicant’s complaints should be examined within the scope of the freedoms of expression and science and arts as well as freedom of the press.
a. Admissibility
42. The alleged violations of the freedoms of expression and science and arts as well as freedom of the press were declared admissible for not being manifestly ill-founded and there being no other grounds for their inadmissibility.
Justice Mr. M. Emin KUZ did not agree with this conclusion.
b. Merits
i. Existence of an Interference
43. The applicant was tried on the charge of publishing a book with obscene contents but the case against him was suspended without arriving at a conviction, and he was placed under probation for three years. The Court previously concluded that there had been an interference with freedoms of expression and art as well as freedom of the press due to the suspension of prosecution in respect of an applicant concerning the books he had published as the owner of a publishing house. The Court found that, with a decision suspending the prosecution, the threat of prosecution still prevailed for the owner of the publishing house. Underlining the potential chilling effect that the anxiety of being subject to sanctions might have on individuals, the Court concluded that even if the person concerned might eventually be acquitted of the offences he was charged with, there was also the risk that they might, under this effect, refrain from disclosing their thoughts or maintaining their printing activities in the future. Therefore, according to the case-law of the Court, even if the applicant had not yet been convicted because of the books that he had published, it could be accepted that the possibility that the suspended prosecution might resume would cause stress and the anxiety of being punished to the applicants. From that standpoint, the Court found that there had been a violation of the applicants’ freedoms of expression and art as well as freedom of the press (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, §§ 69-79; and for a later judgment, see also Ali Gürbüz and Hasan Bayar, no. 2013/568, 24 June 2015, §§ 46-49).
44. There are no major differences between the circumstances of the present case and the Court’s above-mentioned case-law. In view of the principles set forth in the Court’s case-law, regard should be had in the present case to the following elements: (i) although there is no final decision convicting the applicant for the time being, there exists an official report which indicates that the book in question is not a work of art and which should be taken into consideration according to the case-law of the Court of Cassation; (ii) the applicant was directly affected by the investigation and prosecution processes that lasted for nearly four years; (iii) and, being a publisher, the applicant is under the risk of facing investigation and prosecution in the future. For these reasons, it must be acknowledged that the three-year-long probation imposed on the applicant by suspending the prosecution against him constituted an interference with the freedoms of expression and art and freedom of the press.
ii. Whether the Interference Constituted a Violation
45. Article 13 of the Constitution reads, in so far as relevant, as follows:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution... . These restrictions shall not be contrary to ... the requirements of the democratic order of the society ... and the principle of proportionality.”
46. The above-mentioned interference would constitute a violation of Articles 26, 27 and 28 of the Constitution unless it satisfied the requirements laid down in Article 13 of the Constitution. Therefore, it must be examined whether the interference in the present case was prescribed by law as required by Article 13 of the Constitution, relied on one or more than one of the legitimate aims set out in Article 26 § 2 and in compliance with the requirements of the democratic order of the society and the principle of proportionality.
47. First of all, it is not for the Court to determine which provisions of law should have been applied to the incident giving rise to the present application or foresee which will be applied in the future. The provisions regarding the protection of children from obscene publications are set out by the Law no. 1117. Article 7 of Law no. 1117 stipulates that this law does not apply to literary works. Moreover, Article 226 § 7 of Law no. 5237 provides that the publications considered as literary works shall not constitute the offence of obscenity on the condition that they are prevented from being accessed by children; however, the Law does not lay down any procedures as to how these works are to be “prevented from being accessed by children”. Therefore, although a hesitation arises with regard to the foreseeability of Article 226 § 7, it has not been deemed necessary to assess this matter any further since this hesitation can be obviated via jurisprudence. On the other hand, the Court found that the requirement for “prescription by law” was satisfied by Article 7 and Provisional Article 1 of the Prevention of Terrorism Act (Law no. 3713, dated 12 April 1991) which constituted the basis for the decision on the suspension of prosecution.
(2) Whether the Interference Pursued a Legitimate Aim
48. Article 26 § 2 of the Constitution does not list “protection of public morals” amongst the legitimate grounds for restriction of the freedom of expression. On the other hand, Article 28 § 7 of the Constitution on freedom of the press stipulates that periodical and non-periodical publications may be seized by order of the competent authority explicitly designated by law, in situations where delay may constitute a prejudice with respect to the protection of public morals. Therefore, the Constitution acknowledges “protection of public morals” as a legitimate ground for restricting freedom of the press, which is a specific aspect of the freedom of expression. With this consideration, the Court concluded that the decision to impose sanctions on the applicant was part of a series of measures intending to protect public morals and that it pursued a legitimate aim.
(a) General Principles
49. There is no doubt that publication and dissemination of books, as long as it performs the fundamental function of the press, must be regarded from the standpoint of the freedom of expression and freedom of the press, the latter being another aspect of the former that is protected by specific safeguards (see Fatih Taş, §§ 58-61). In a number of previous cases, the Court held that the freedom of expression enshrined in Article 26 and freedom of the press guaranteed under Article 28 of the Constitution constitute two of the essential foundations of a democratic society and the basic conditions for its progress and for each individual’s self-fulfilment (see Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 69 and Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, §§ 34-36). The freedom of art and science, another specific aspect of the freedom of expression, is specially protected under Article 27 of the Constitution.
50. The Court has also explained what should be understood from the expression “requirements of the democratic order of the society” in Article 13 of the Constitution. Accordingly, a measure that restricts the fundamental rights and freedoms must meet a social need and be used as a last resort. If the restrictive measure does not satisfy these criteria, it cannot be considered as a measure which is compatible with requirements of the democratic order of the society (Bekir Coşkun, § 51; Mehmet Ali Aydın, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51). Inferior courts enjoy a certain margin of appreciation in the determination of whether or not such a social need is present. Nevertheless, this margin of appreciation is subject to the Court’s review.
51. It should also be examined whether any limitation imposed upon the fundamental rights and freedoms is a proportional limitation that allows for the minimum interference with fundamental rights, along with being necessary for the democratic order of the society (see the Court’s judgment no. E.2007/4, K.2007/81, 18 October 2007; Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 63; Bekir Coşkun, §§ 53 and 54; for explanations as to the principle of proportionality, see also Tansel Çölaşan, §§ 54 and 55; and Mehmet Ali Aydın, §§ 70-72). Therefore, the imposed measure must be in a reasonable balance of proportionality with the damage believed to have been sustained by the public.
52. In the present case, a set of criminal proceedings was filed against the applicant as he published the impugned book containing obscene expressions. In the bill of indictment, the public prosecutor acknowledged the literary nature of the work. The expert report obtained by the first instance court included highly detailed assessments indicating that the book in question was a work of literature. The Court did not find it necessary to hold a separate examination on whether the work in question was literary. Article 226 § 7 of the Law no. 5237 provides that a conviction cannot be imposed for the offence of obscenity due to literary works as long as measures are taken to protect children. Therefore, the matter before the Constitutional Court is rather the question whether the freedom of expression (Article 26), freedom of science and art (Article 27), and freedom of the press (Article 28) have been violated because of the proceedings brought against the applicant and the three-year probation period imposed by the domestic court for publishing and disseminating a book without taking any measures to protect children.
53. Articles 26, 27 and 28 of the Constitution do not guarantee an unlimited freedom of expression. The freedom of expression is subject to certain exceptions listed in Article 26 of the Constitution and, as regards the protection of public morals, in Article 28 § 5 of the Constitution which must be fully respected. The exceptions in question must be convincingly established in every individual case. Apart from these, Article 41 of the Constitution titled “Protection of the family and children’s rights” which reads “The State shall take the necessary measures ... to protect ... children... The State shall take measures for the protection of the children against all kinds of abuse and violence.” charges the State with the responsibility of taking any and every measure necessary for the protection of children and protecting children against abuse and any kind of violence.
54. Moreover, Article 12 § 2 of the Constitution which provides “The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family, and other individuals.” makes reference to the duties and responsibilities of individuals in the exercise of their fundamental rights and freedoms. As is the case with administrators of other media and press outlets and members of the press, persons responsible of publishing houses have certain “duties and responsibilities” to observe during the exercise of the freedom of expression (with regard to duties and responsibilities of the press, see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 22 February 2016, § 89; R.V.Y. A.Ş., no. 2013/1429, 14 October 2015, § 35; and Fatih Taş, § 67). The scope of the responsibilities at issue varies depending on the applicant’s circumstances and the means by which the freedom of expression is exercised. In the determination of whether a sentence is “necessary in a democratic society”, the Court will not disregard this aspect of the matter.
55. Even though the press is required to respect the limitations it is subject to, the freedom to express and disseminate art, as in the publication of the impugned novel, is specially guaranteed under Article 27 of the Constitution. In this connection, Article 26 and, especially, Article 27 of the Constitution include the freedom of artistic expression within the scope of obtaining information and ideas and imparting thoughts. These constitutional guarantees offer the possibility to take part in the expression, dissemination and exchange of any cultural, political or social knowledge or idea. Persons who create, publish or disseminate works of literature such as the impugned book in the present case, have a considerable input in the dissemination of ideas and such artistic works are of great importance for a democratic society. For this reason, the State has to act more sensibly regarding the obligation of not interfering unnecessarily with the freedoms of expression of persons who have created the work of art (see Fatih Taş, § 104).
56. In this context, the Constitutional Court drew attention in its previous judgments to the fact that segregating any expressed and disseminated thought as “valuable-valueless” or “useful-useless” for the society on the basis of its content would involve subjective elements; thus, it would create a risk of arbitrary limitations on the freedom in question. It should be borne in mind that the freedom of expression also encompasses the freedom to express and disseminate thoughts that may be regarded as “valueless” or “useless” by others (see Ali Gürbüz and Hasan Bayar, § 42; and Önder Balıkçı, no. 2014/6009, 15 February 2017, § 40).
57. On the other hand, considering that the book in question is a fictional novel and that it has an original style, it should not be forgotten that Articles 26 and 27 of the Constitution do not only safeguard the contents of expressed ideas and information but also the way they are expressed (see, for comparison, Fatih Taş, § 105). It cannot be accepted that authorities of the judiciary enjoy complete freedom in assessing whether a work has artistic or literary value. Judicial bodies must examine expressions without taking them out of context in their assessments with regard to the freedom of expression. Acting to the contrary might lead to reaching erroneous results in the application of the principles set out by Articles 13 and 26 of the Constitution and in terms of making an acceptable assessment of the findings established.
58. Especially when the subject of obscenity is at issue, which is a complex and vague phenomenon, the assessments to be made by judicial authorities must -as a requirement of this principle of a holistic approach- take account of certain factors: the characteristics of the branch of art or the work; the context in which the parts regarded as obscene are expressed; the identity of the author; the purpose and the time of writing; the identities and the sense of aesthetics of the people it addresses/appeals to; the potential effects of the work; and the entirety of all other expressions contained in the work (see, for a newspaper article which was allegedly terrorist propaganda, Ali Gürbüz and Hasan Bayar, § 64; for a book which allegedly contained defamatory claims attacking a person’s reputation, Ergün Poyraz (2) [Plenary], no. 2013/8503, 27 October 2015, §§ 63, 66, 67; for a newspaper article with the same allegation, Tansel Çölaşan, § 62; and for a judgment concerning the requirement to assess the statements in an electronic mail within the entirety of the events, Nilgün Halloran, no. 2012/1184, 16 July 2014, § 52).
59. Lastly, in spite of the high sentences envisaged by law for the offence of obscenity, there is also the possibility in law where the accused person has the possibility of not facing punishment, which is absolute in respect of scientific works but subject to certain criteria in respect of works that have artistic or literary value. Therefore, the question whether the allegedly obscene work fell within the above-mentioned scope and the distinction between scientific works and the works of artistic or literary value become highly important. Furthermore, the bodies using the public power to interfere with the freedom of expression, freedom of art and freedom of the press should put emphasis on the questions as to how to prevent artistic and literary works from being accessed by children and how to monitor it.
60. In this context, the Court must examine the interference giving rise to the present application within the entirety of the events and determine whether the interference with the freedom of expression was “proportionate” and whether the grounds relied on by the inferior courts to justify the interference were convincing - in other words, “relevant and sufficient” (see Nilgün Halloran, § 39; Bekir Coşkun, §§ 24 and 58; and Tansel Çölaşan, § 52). In doing so, the Court must become convinced that the bodies with public power and the inferior courts applied the standards compatible with Article 26 of the Constitution and the principles set forth by the Court; and that they also rendered their decisions through an acceptable assessment of the material facts. Therefore, the Court will consider the assessments made by the inferior courts and the grounds established.
61. The case giving rise to the present application was initially filed on the basis of a report issued by the Board for the Protection of Minors from Sexually Explicit Materials (“the Board”). The Court of Cassation’s case-law cited shows that the said Board’s reports have a significant impact on cases concerning obscenity. While Article 6 of Law no. 1117 limits the supervisory authority of the Board by excluding the works of art that have intellectual, social, scientific and aesthetic value outside the applicable scope of Law no. 1117, it does not specify which works will be regarded to have intellectual, social, scientific or aesthetic value. An assessment made by a board composed 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 such works that should in fact be 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 board that does not even include a pedagogue and sexual health professional and which are imprecisely formulated with general and abstract expressions may lead to undesirable consequences in terms of freedoms of expression and the press.
62. In the instant case, the Board, the İstanbul Chief Public Prosecutor’s Office and the Panel of Experts all stated that homosexual intercourses between men are depicted in an explicit and detailed manner in the impugned book. Nevertheless, the İstanbul Chief Public Prosecutor’s Office and the Panel of Experts also acknowledged the book as a literary work. Beyond that conclusion, having examined the impugned publication (see, for a similar approach, Öcalan, §§ 25-36), the Court assessed the book as a whole and did not find any reasons to depart from the conclusion that the book had literary value, as acknowledged in the İstanbul Chief Public Prosecutor’s Office’s bill of indictment and the Panel of Experts’ report.
63. The impugned book does not contain any representations such as pictures or drawings that does not give individuals any chance to avoid. Given also the author’s complex discourse, it is highly unlikely for minors to be exposed to its contents. The book is open to public access; however, its design is not of a nature which would attract everyone’s attention.
64. On the other hand, it has been concluded that in spite of its intellectual and artistic nature, the impugned book is not appropriate for the whole society, and it may aggrieve and offend the sensitivities of 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 its obscene nature and to the fact that it is a literary publication addressing to a relatively small group of the society, 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 harmful for the minors under 18− may correspond to a pressing social need.
65. 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 appropriate. In the present case, however, both the reports of the Board and the Panel of Experts and the bill of indictment issued by the İstanbul Chief Public Prosecutor’s Office as well as the decisions of the Court of Cassation rendered in similar cases merely focused on the artistic and literary nature of the work without handling any matter with respect to the protection of minors.
66. In the present case, it is not possible to determine, on the basis of the inferior courts’ decisions, why and how the impugned book breached the legal provisions on the protection of children’s morals. In fact, the first instance court’s decision does not include any indication demonstrating that it thoroughly elaborated on the question whether the impugned novel was compatible with the principle of the protection of minors. Without providing any reasoning, the first instance court ordered the suspension of the applicant’s prosecution and rendered him subject to a three-year probation. Similarly, the decision of the criminal court which dismissed the applicant’s objection against the aforementioned decision does not include any details or reasons in this context. Therefore, since the decisions rendered were not properly reasoned, it cannot be acknowledged that the requirements which should have been taken into account before restricting the applicant’s freedom of expression have been duly examined.
67. For these reasons, in disputes regarding 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, dissemination, and handing over of artistic and literary works (excluding 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 book 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 were not relevant and sufficient.
68. Consequently, the Court found a violation of the freedoms of expression, science and art, and the press safeguarded by Articles 26, 27 and 28 of the Constitution.
B. Alleged Violation of the Right to a Trial within a Reasonable Time
69. The applicant complained of an alleged violation of the right to a trial within a reasonable time.
70. The Court has already examined and ruled on the basic principles with regard to the requirement that proceedings held in relation to criminal charges must be concluded with a decision within a reasonable amount of time, as per Articles 36 and 141 of the Constitution (see B.E., no. 2012/625, 9 January 2014; Ersin Ceyhan, no. 2013/695, 9 January 2014). There are no reasons in the present case to depart from those principles.
71. In the evaluation of whether the trial period in criminal procedure is reasonable or not, the beginning of the period is the moment of notification of a person by competent authorities that he has committed an offence or application of a series of measures such as search and custody during which he has been initially affected by the allegation or initiation of a criminal case (see, Ersin Ceyhan, § 35). In the instant case, it has been understood that the period began with the filing of criminal proceedings by the chief public prosecutor’s office on 27 April 2011 and ended with the final judgment rendered in relation to the criminal charge on 14 November 2014.
72. Having regard to the fact that the proceedings lasted for a total period of 3 years and 9 months before two levels of jurisdiction, the Court considered that there had not been a delay that would violate the applicant’s rights.
73. For these reasons, the Court found that this part of the application must be declared inadmissible for being manifestly ill-founded, without examining it from the standpoint of the remaining admissibility criteria.
C. Application of Article 50 of Code no. 6216
74. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:
“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled...
(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”
75. The applicant claimed 20,000 Turkish liras (TRY) in compensation.
76. It has been found that the applicant’s freedoms of expression, art and the press were violated.
77. Since there is legal interest in holding a retrial to remove the consequences of the violation of the applicant’s freedoms of expression, art and the press, a copy of the judgment must be remitted to the 2nd Chamber of the İstanbul Criminal Court (E.2011/228) for retrial.
78. As regards the non-pecuniary damages sustained by the applicant due to the violation of his freedoms of expression, art and the press, which cannot be redressed by a mere finding of a violation, the Court awarded TRY 3,000 (net) to the applicant as non-pecuniary compensation.
79. The total court expense of 2,006.10 Turkish liras (TRY) including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.
For these reasons, the Constitutional Court held on 26 October 2017:
A. 1. By MAJORITY and by dissenting opinion of Mr. M. Emin KUZ, that the alleged violation of the freedoms of expression, art and the press be DECLARED ADMISSIBLE;
2. UNANIMOUSLY that the alleged violation of the right to a fair trial be declared INADMISSIBLE for being manifestly ill-founded;
B. By MAJORITY and by dissenting opinion of Mr. M. Emin KUZ, that the freedom of expression as well as the freedom of science and the arts and the freedom of the press, which are specific aspects of the freedom of expression, safeguarded by Articles 26, 27 and 28 of the Constitution were VIOLATED;
C. A copy of the judgment be REMITTED to the 2nd Chamber of the İstanbul Criminal Court (E.2011/228) for a retrial to remove the consequences of the violation of freedoms of expression, science and art and the press;
D. A copy of the judgment be SENT to the Prime Ministry’s Board for the Protection of Minors from Sexually Explicit Materials;
E. A net amount of TRY 3,000 be PAID to the applicant in respect of non-pecuniary damage, and other compensation claims be REJECTED;
F. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;
G. The payments be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date; and
H. A copy of the judgment be SENT to the Ministry of Justice.
The individual application, which was lodged by the applicant with the allegation that the suspension of proceedings against him and his placement under probation were in breach of his freedom of expression and freedom of labour and contract, was examined under the freedom of expression, freedom of science and art and freedom of the press. It was declared admissible and a violation of these freedoms was found.
In the present case, a criminal case was filed against the applicant and, in the hearing of 5 July 2012, the 2nd Chamber of the İstanbul Criminal Court decided to suspend the prosecution pursuant to Provisional Article 1 of Law no. 6352. Upon an appeal submitted by the applicant, on 16 September 2014 the 14th Criminal Chamber of the Court of Cassation remitted the case file on the ground that the suspension of prosecution may not be appealed, and on 14 November 2014 the 2nd Chamber of the İstanbul Criminal Court dismissed the objection (see § 17 of the Judgment).
Considering that the decision giving rise to the application became final with the dismissal of the objection, and also in line with our earlier judgments, the Court has found that the application falls within its temporal jurisdiction.
As indicated above, the applicant used the wrong legal remedy by requesting an appeal against the non-appealable suspension of prosecution which was delivered prior to 23 September 2012, i.e. the beginning of the Court’s jurisdiction ratione temporis. Thus, the applicant was able to lodge an individual application due to the fact that the [Court of Cassation’s] decision dated 16 September 2014 regarding the non-appealability of the said decision of suspension and the [first instance court’s] decision dated 14 November 2014 on dismissal of the objection were delivered nearly two years after the beginning of our temporal jurisdiction.
In this connection, if the applicant had resorted to the accurate legal remedy of objection against the first instance court’s decision dated 5 July 2012 on the suspension of prosecution, it would probably have become final before 23 September 2012, thereby falling outside of the Court’s temporal jurisdiction. Therefore, the majority’s decision to declare the application admissible means that the applicant was only able to complain of the said decision through an individual application because of his failure to resort to the correct legal remedy. In other words, the majority’s interpretation results in granting the applicant an advantage in terms of lodging an individual application with the Court over those who used the accurate legal remedy, which would be submitting an objection, at the material time (also taking into account the fact that, in practice, the applications to the remedy of objection are resolved much more rapidly than the remedy of appeal). It must be underlined that the applicant pursued the wrong legal remedy even though he was represented by a lawyer and was in a position to be aware of the appropriate legal remedy thanks to the legal assistance he received.
In a number of decisions and judgments, the Court held that pursuing the wrong legal remedies would not confer upon the applicant any rights in terms of the remedy of individual application, the Court’s temporal jurisdiction, or the time-limit for lodging an application.
It may be argued that the applicant was misguided with regard to legal remedy since the first instance court’s decision of 5 July 2012 indicated that the remedy of appeal was available against this decision. Nonetheless, given that the applicant was represented by a lawyer, that there was no unforeseeable legal uncertainty as to the legal remedy to be pursued due to the clear provision in Law (see, similarly, Hüseyin Günel, no. 2013/2491, 17 July 2014, §§ 47-49), and that the misguidance caused by the first instance court did not eventually result in a denial of holding a review upon objection, it does not seem possible to agree with the majority’s extensive interpretation in this regard.
For these reasons, I am of the opinion that the application should be declared inadmissible for incompatibility ratione temporis and therefore disagree with the majority’s declaration of admissibility.
Secondly, I cannot agree with certain assessments made under the merits of the application and, by extension, the majority’s finding of a violation.
In the present case, the first instance court decided to suspend the prosecution on 5 July 2012 pursuant to Provisional Article 1 of Law no. 6352, which entered into force nearly 1 week after the expert report of 25 June 2012 obtained by the said court and drafted by a panel composed of academics specialised in the field.
Although the expert report indicated that the novel in question should be considered within the scope of Article 226 § 7 of the Turkish Criminal Code “on account of its being a work of literature”, the first instance court decided to suspend the prosecution, without having the opportunity to examine the merits of the case, by virtue of the clear provision laid down by Provisional Article 1 of the newly-introduced Law no. 6352.
Article 226 § 7 of the Turkish Criminal Code stipulates that the provisions of this Article may not be applied to the works with literary value. Regard being had to the expert report’s conclusion that, since the novel in question was a literary work, it should be regarded in compliance with the law as per the grounds for lawfulness laid down the said paragraph in relation to offences of obscenity, the trial court would most probably have ruled in parallel with the experts’ conclusion if the Law no. 6352 had not entered into force. Nevertheless, in finding a violation, the majority made assessments on the findings contained in the report of the Board for the Protection of Minors from Sexually Explicit Materials, in the bill of indictment, and the expert report.
However, as indicated in the judgment, there is no conviction imposed by the first instance court, nor is there an assessment or finding pronounced by it with regards the impugned novel or the expert report drafted in relation thereto.
As is well-known, filing of criminal proceedings via an indictment against a person does not mean that the person concerned is found guilty. Also, it is not for the Court to review the comments and assessments made by a public prosecutor when filing criminal proceedings (see Mustafa Ersen Erkal, no. 2013/4770, 16 April 2015, § 20).
The suspension of prosecution, on the other hand, does not resolve the merits of the dispute and is irrelevant to whether the person concerned has committed an offence but it is in fact a procedural decision which results in the discontinuation of the criminal case upon the lapse of the statutory time period (see Mustafa Ersen Erkal, § 31).
Although our Court has found violations in previous individual applications similar to the present one, those judgments concerned the applications that were lodged upon decisions on suspension of prosecution, which were delivered due to the entry into force of Law no. 6352 during the appellate review of convictions rendered by first instance courts, and the Court’s examinations on those applications were based on the assessments of first instance courts in their conviction decisions. To put differently, in those previous cases, the first instance courts had already convicted the individuals but the convictions had not become final or were enforced because the prosecution was suspended on account of the entry into force of Law no. 6352 while the appeals submitted against the convictions were still pending. Therefore, our Court found violations in those cases by holding that the risk of being convicted posed by the unfinalised convictions would restrict the relevant applicants’ freedom of expression for the duration of the 3-year probation.
Nonetheless, in the instant application, there is not yet a conviction or any other decision on the merits pronounced by the first instance court in relation to the criminal proceedings before it. Thus, unlike our earlier judgments finding a violation of the freedom of expression and freedom of the press due to the suspension of prosecution, what brought the majority of our Section to the finding of a violation in the present application is not based on the impugned judicial decision but on the findings reached in the aforementioned Board report, the bill of indictment, and the expert report, which have not yet been examined by the inferior courts.
In the light of the above, I agree with the general principles regarding the compliance with the requirements of the democratic order of the society and the proportionality, which were adopted in our earlier judgments and reiterated in the present case. However, it does not seem possible for me to agree with the finding of a violation when I take into account (i) the findings made by the majority on the basis of the public prosecutor’s bill of indictment as well as the reports of the Board and the panel of experts under “Application of the Principles to the Present Case” and the majority’s opinions on the assessments that should have been made by the inferior courts; and (ii) the fact that the decision on suspension of prosecution relied on the purpose of Law no. 6352 which is “to expedite judicial services, further expand the freedom of expression, and conclude the proceedings concerning offences committed via press and media” (see Mustafa Ersen Erkal, § 29).
For these reasons, I do not agree with the majority’s opinion to declare the application admissible and find a violation.
