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On November 22, the European Court of Human Rights (ECtHR) held that Turkey’s seizure of all copies of a particular issue of a gay and lesbian non-governmental group’s magazine that contained sexually explicit images amounted to a violation of the right to freedom of expression. See ECtHR, Kaos GL v. Turkey, no. 4982/07, Judgement of 22 November 2016, para. 63 (French version). Ultimately, the ECtHR found the interference with the exercise of freedom of expression was disproportionate to the legitimate aim of protecting public morals and not “necessary in a democratic society” within the meaning of Article 10 of the European Convention on Human Rights (ECHR). See id. Turkey, the Court noted, did not attempt to implement a less burdensome preventive measure than the seizure of all of the copies in question, such as restricting sales to persons 18 years of age and above. See id. at paras. 60-61. Commentary on the case has noted that the holding establishes that a State cannot use the ‘protection of public morals’ argument to place blanket restrictions on the exercise of freedom of expression. [ILGA-Europe] Another case pending before the European Court challenges a Russian law that prohibits distribution of “homosexual propaganda” to minors, which the applicants allege constitutes “a blanket ban on the mere mention of homosexuality.” See ECtHR, Bayev v. Russia, no. 67667/09, Communicated Case.
Case Background
The applicant in this case is Kaos Cultural Research and Solidarity Association for Gays and Lesbians (Kaos Association), an organization seeking to promote the rights of the lesbian, gay, bisexual, and transsexual (LGBT) community in Turkey. [ECtHR: Press Release] Kaos Association submitted its application to the European Court after the Ankara public prosecutor seized copies of the July 2006 issue of Kaos GL magazine prior to distribution because it contained a reproduction of a sexually explicit painting and brought charges against Umut Guner, the editor-in-chief, for publishing obscene images. [ECtHR: Press Release] The court of first instance considered the content of the issue, which it found contained homosexual pornographic articles and interviews, counter to the principle of protecting public morals. [ECtHR: Press Release] Guner was acquitted in 2007 after the Ankara Criminal Court found that the elements of the offence had not been satisfied given that the copies of the magazine had been seized prior to distribution. [ECtHR: Press Release] Although the criminal court ordered the seized copies returned to the organization once its judgment became final, that did not happen until 2012, when the Court of Cassation upheld the criminal court’s ruling. [ECtHR: Press Release]
The European Court’s Analysis
The European Court first found that the seizure of the magazines was an interference with the right to freedom of expression and then analyzed whether that interference violated the ECHR by determining whether it was prescribed by law, pursued a legitimate aim, and was “necessary in a democratic society.” See Kaos GL v. Turkey, Judgement of 22 November 2016, para. 51. The ECtHR concluded that the interference was in fact prescribed by law because the Ankara public prosecutor acted pursuant to Article 28 of the Constitution and Article 162 of the Code of Criminal Procedure, which allow authorities to seize materials that offend public morals. See id. at paras. 52-54. Further, the ECtHR accepted that the interference pursued the legitimate aim, recognized in Article 10 of the ECHR, of protecting public morals. See id. at para. 55.
In examining whether the interference had been “necessary in a democratic society,” however, the ECtHR concluded that it would be impossible to determine why the Turkish authorities concluded that the articles or images in issue 28 of the magazine infringed on public morality. See id. at para. 57. In assessing whether a restriction on freedom of expression is “necessary,” the ECtHR will consider the statement of reasons adopted by the domestic courts. See id. at para. 57. Here, the ECtHR found that the domestic courts’ decisions did not give reasons why the articles or images in issue 28 infringed on public morals. Consequently, it noted that, in the absence of evidence suggesting a detailed examination of the compatibility of the magazine’s content with the principle of protection of public morals, the protection of public morals could not justify the seizure and confiscation of all copies of issue 28. See id. at para. 57-58.
In its own analysis, the ECtHR considered that the content of the articles concerning the sexuality of the LGBT community and pornography, as well as the explicit nature of some of the images could justify action to protect the sensibilities of a section of the general public, namely minors. The ECtHR held, though, that a general seizure and denial of access to the all members of the public was unjustifiable. See id. at paras. 59, 61.
The Court identified several examples of measures that could have been taken to prevent minors’ access to the publication, including prohibiting the sale of the magazine issue to minors, requiring special packaging warning minors of the content, or even withdrawing the publication from the newspaper kiosks; however, the ECtHR explicitly noted that a broad, general seizure of subscriber copies was disproportionate to the aim pursued. See id. at paras. 60-61. In particular, the ECtHR noted that the confiscation and the delay of over five years imposed on the issue’s publication could not be regarded as proportionate to the aim pursued. See id. at para. 62.
With regard to the criminal proceedings against Kaos GL’s president and editor-in-chief, the ECtHR reiterated that an association cannot claim to be a victim of actions that have infringed on the rights of an individual that are conferred in the European Convention on Human Rights. See id. at para. 26-27. Therefore, it rejected the part of the application relating to the criminal proceedings brought against Umut Guner. See id. at para. 28.
Additional Information
For more information about the European Court of Human Rights, visit IJRC’s Online Resource Hub. For a summary of the European Court’s jurisprudence on Turkey and, more specifically, on sexual orientation, visit its fact sheets and country profiles section.