A bizarre yet alarming lawsuit

ESRA E. KARAOSMANOĞLU BAYAR

Perhaps, Turkey is the only country in which you would see the famous French poet and writer Guillaume Apollinaire’s work of literature being put behind bars. The lawsuit started in 2009 and on Dec. 17, 2013, a verdict was pronounced by the 2nd Criminal Court of Istanbul.

The litigation process commenced in early 2009 when the Public Prosecutor started an investigation on the well-known French writer’s novel “Adventures of The Young Don Juan,” on the grounds that the said book is “obscene,” by virtue of Article 226 of the Turkish Penal Code, outlawing obscene images and words where the recipients are children and banning the publication of obscenities. Incriminations are targeted against publisher İrfan Sancı, owner of the publishing house Sel Yayıncılık, and İsmail Yergüz, translator of the book. The pair could be imprisoned up to 10 years under Article 226. 

As usually done by Turkish courts, the seized tribunal requested an expert opinion on the matter. This was the beginning of a quite bizarre, not to say incoherent quest to determine whether or not the incriminated book has literary value (!).

The principal character of the novel, Roger, is an adolescent discovering his sexuality in a rather unusual way. The book is ahead of its time as it narrates the sexual adventures of a young man, not only with third persons but also with his close family, such as his mother, sister and aunt. Fantasies of the writer reach its peak when Roger is described as a zoophile. The literary narration chosen by Guillaume Apollinaire is certainly raw and disturbing; however, the ultimate aim of the writer is without doubt, a cruel parody of the society in the early 20th century. 

Despite the expert report obtained at the examination stage affirming the book to be “completely denuded of any literary value,” and the report of the Prime Ministerial Board for the Protection of Children from Harmful Publications indicating that the novel does not constitute literature, but obscenity, the first-level verdict was rendered by a rational and clear-sighted judge, acquitting the publisher and his translator. The rationale behind the ruling rendered in 2010 was based on paragraph 7 of Article 226 of the Turkish Penal Code, which exempts scientific, artistic and literary work from the scope of Article 226, provided the piece of work is prevented from reaching children. 

This wise decision has not been perceived as being such by the public prosecutor, who appealed, requesting the reversal of the ruling. The seized chamber of the Court of Appeals reversed the case and thus, contributed to creating a jurisprudence deprived of common sense. The file was sent back to the 2nd Criminal Court of Istanbul. 

On Dec. 17, 2013, the 2nd Criminal Court was crowded in an unusual way. Representatives of some foreign embassies and consulates, the Turkish Publishers’ Association, the Turkish Translators’ Association, International PEN and many writers and poets attended the hearing to show their support to Sancı and Yergüz. The condemnation of Turkey in 2010 at the European Court of Human Rights, for banning another piece of work of Apollinaire, was evoked (“Eleven Thousand Rods” published by Rahmi Akdaş in 1999). 

Although the judge of the 2nd Criminal Court could have given an acquittal, he preferred to base the judgment on the newly enacted Law No. 6352, known in Turkey as the third judicial package.
Provisional Article 1 of Law No. 6352 stipulates that crimes committed through publication and press as of Dec. 31, 2011, and sanctioned with an imprisonment of a maximum of five years, should be adjourned. This was the legal ground used by the court. Under this provision, in the event the accused commits a similar crime in the next three years, they will be prosecuted not only for the newly committed crime, but also for having published Guillaume Apollinaire’s book.

It would certainly be unfortunate to end up with any ruling other than an acquittal, but the judge might have tried to find out a viable solution by referring to Law No. 6352. He might be aware of the public discomfort the lawsuit caused; however, if he had pronounced an acquittal, this might have triggered a worse outcome. An acquittal judgment, if reversed a second time by the Court of Appeal, would force the lower level tribunal, seized from the case for a third time, to abide by the Court of Appeal’s decision. That is to say, the tribunal would at that time not have any discretionary power. Any reversal decision by the Court of Appeals, rendered for a second time, would be binding and final on the lower court.

Although the decision rendered Dec. 17 is far from being satisfactory from the perspective of freedom of expression and puts moral appreciation into literary work, it can be seen as a suspension in time of the matter. Needless to say, the decision will truly tie the hands of the publisher and the translator, at least during the period of adjournment, which is three years. Moreover, it will create a self-censorship and considerably suppress artistic and literary creativity. It would not be false to see a certain shaping of publishing activities behind this lawsuit. 

The ruling is open to appeal. Although chances are remote, the public prosecutor, as well as the publisher/translator, can appeal and ask for the reversal of the ruling for a second time. The last word in this bizarre and highly criticized lawsuit may not have been said yet. For the time being, an urgent reform of either the Turkish obscenity legislation or its application in practice, seem to be necessary. 

Esra E. Karaosmanoğlu Bayar is a lawyer and member of the PEN Turkey Center.