Public Morals and Homosexuality: The Kaos GL v. Turkey Judgment
Genel Ahlak ve Eşcinsellik: KaosGL - Türkiye Kararı
Egemen ESEN
The European Court of Human Rights leaves an “elbow room” to the national authorities in limiting the rights granted in the Convention under the doctrine of the margin of appreciation. At the Kaos GL v. Turkey judgment, it was assessed whether or not confiscating all the copies of the magazine on the grounds of public moral was a proportionate interference in the freedom of expression. The topic of the magazine was pornography. Besides, the magazine belongs to the association which defends LGBT rights. It is obvious that interference in the freedom of expression was made with a discriminatory motive. In this study, the legislation that justified the interference has been evaluated. In addition, it has been stated that the Court should have assessed the censorship in the context of the discrimination under the Article 14 of the Convention in conjunction with Article 10.
Freedom of Artistic Expression, Kaos GL, Prohibition of Discrimination, Margin of Appreciation, Public Moral.
İnsan Hakları Avrupa Mahkemesi takdir marjı doktrini kapsamında Sözleşme’de tanınan hakların sınırlandırılmasında ulusal makamlara bir hareket alanı bırakır. Kaos GL v. Türkiye kararında da pornografi konulu dergiye genel ahlak gerekçesiyle el konulmasının, ifade özgürlüğüne ölçülü bir müdahale olup olmadığı değerlendirilmiştir. Söz konusu dergi LGBT haklarının savunuculuğunu yapan bir derneğe aittir. İfade özgürlüğüne yapılan müdahalenin ayrımcılık saikiyle yapıldığı aşikardır. Bu çalışmada, müdahaleye gerekçe oluşturan mevzuat değerlendirilmiştir. Ayrıca, tahlil edilen kararda İnsan Hakları Avrupa Mahkemesi’nin ayrımcılık yasağı ile birlikte ihlal kararı vermesi gerektiği belirtilmiştir.
Sanatsal İfade Özgürlüğü, Kaos GL, Ayrımcılık Yasağı, Takdir Marjı, Genel Ahlak.
I. Facts
The case concerns the seizure of all the copies of a magazine published by Kaos GL. The topic of the magazine is “The visuality of the sexuality: Pornography”. The applicant is a Turkish association known as “The Kaos cultural research and solidarity association for gays and lesbians”, based in Ankara, Turkey since 1994. Its aim is to promote the rights of the LGBT community in Turkey1 .
In 2006, the Ankara Chief Prosecutor, drawing on article 25/1 of the Press Act, seized three copies of issue 28 of the magazine Kaos GL before its distribution. According to article 25/1 of the Press Act, “The public prosecutor and in non-delayable cases the law enforcement officers may seize three copies at most of all printed works as an evidentiary material for an investigation.” On the same day the Criminal Court of First Instance, at the request of the Chief Prosecutor, ordered the seizure of the all the copies of the magazine with a view to launching criminal investigations. The order based on Article 162 of the Code of Criminal Procedure and Article 28/6 of the Constitution. According to Article 28/6 of the Constitution, “Periodical and non-periodical publications may be seized by a decision of a judge in cases of ongoing investigation or prosecution of crimes specified by law (…)” These crimes count article 25/2 of the Press Act. However, according to the Constitution, some general clauses, such as public morals2 , national security and so on, allow judicial body to take measure. Moreover, the appeal was overruled. That is to say, the court considered that the content of some of the articles and some of the images published were contrary to the principle of the protection of public morals.
Following the seizure of the magazine, Mr. Umut Guner, editor-in-chief of the magazine, was charged with publishing obscene images via the press under article 226/2 of the Penal Code. But he acquitted in 2007 on the basis that the issue of the magazine was never distributed. The Criminal Court also ordered the return of all the copies of the magazine seized to the defendant once the decision had become final. In 2012, the Court of Cassation upheld the judgment of the Criminal Court of First Instance, and the seized magazines was finally returned after a period of five years and seven months.
II. Question of Law
It was assessed whether or not confiscating all the copies of the magazine including pornography had violated the Article 10 of the Convention. Confiscating all the copies of the magazine has been an interference in the freedom of expression, and public morals have been an used principle to be justified this interference.
