In an interesting and potentially important new freedom of expression judgment the Court of Human Rights has held that, when a literary work becomes part of the “European cultural heritage” it will be a violation of Article 10 to ban its publication, however offensive it is to local sensibilities. The case is the subject of a posting on the extremely useful ECHR blog here.
In the case of Akdaş v. Turkey(Judgment of 15 February 2010) the Court of Human Rights had to consider the banning in Turkey of the well known pornographic novel, Eleven Thousand Rods, by the symbolist poet, Guillaume Apollinaire. The judgment is available only in French but there is a Press Release in English. As accurately summarised in the Guardian piece on the case
The book details the erotic adventures of the debauched Romanian aristocrat Mony Vibescu and his fellow sybarites, containing graphic scenes of intercourse, sadomasochism, paedophilia, necrophilia, coprophilia and vampirism.
Apollonaire is said to have written it for the clandestine market when short of money and never acknowledged authorship. It was banned in France until 1970 but has now been released in the prestigious “La Bibliothèque de la Pléiade”. Mr Akdaş published a Turkish translation in 1999. He was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. He argued that the book was a work of fiction, using literary techniques such as exaggeration or metaphor, and that the postface to the edition in question was written by specialists in literary analysis. He added that the book did not contain any violent overtones and that the humorous and exaggerated nature of the text was more likely to extinguish sexual desire. The Turkish Court ordered the seizure and destruction of all copies of the book was ordered and the applicant fined the equivalent of about €1,100 euros. The Court of Cassation quashed the part of the judgment concerning the order to destroy copies of the book but upheld the remainder of the order.
The case was considered by the Second Section of the Court of Human Rights. It was not disputed that there had been an interference, that the interference had been prescribed by law and that it had pursued a legitimate aim, namely the protection of morals. The Court accepted that the requirements of morals varied from time to time and from place to place, even within the same State. The national authorities were therefore in a better position than the international judge to give an opinion on the exact content of those requirements, as well as on the “necessity” of a “restriction” intended to satisfy them. However, the Court noted that the book was by an internationally renowned author and in 1993 had been published in « La Pléiade » collection. The central paragraphs of the short judgment are the following (in our translation)
29. Although the Court, taking account of the relative character of moral conceptions in the European juridical space, accords a certain margin of appeciation to States in this area, in this particular case, we must not underestimate the importance of the passage of more than a century since the publication of the work in France, its publication in numerous countries in various languages, nor its recognition by entry into the “Pléiade” collection a dozen years before being seized in Turkey.
30. The Court considers the breadth of this margin of appreciation, in other words the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage”.
As a result, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and the seizure of copies of the book had not been proportionate to the legitimate aim pursued and had thus not been necessary in a democratic society, within the meaning of Article 10. As a result, there had a violation of Article 10.
This conclusion has wide ranging implications. Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later. When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described. The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising. The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection.
The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.