SAPAN v. TURKEY
Inadmissible
The applicant, Mr Orhan Sapan, is a Turkish national who was born in 1963 and lives in Istanbul. He was represented before the Court by Mr E. Kanar, a lawyer practising in Istanbul. The Government did not appoint an agent to represent them. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of the publishing company “Grandis İletişim Tanıtım ve Halkla İlişkiler Ltd (Chiviyazıları Yayınevi)”. In 2003 he published the Turkish translation of the book entitled “Juliette - Vice Amply Rewarded” by the Marquis de Sade. On 3 April 2003 the Istanbul Security Directorate laid a criminal information regarding the book, alleging that it undermined public morals, in breach of Article 426 of the Criminal Code. On 7 April 2003, at the request of the Kadıköy Public Prosecutor, the judge at the Kadıköy Magistrate Criminal Court ordered the seizure of copies of the book, holding that it provoked and exploited feelings and thus undermined public morals. On the same day, the decision of the criminal court was communicated to the security directorates, criminal courts and public prosecutors’ offices of the district and it was notified to the applicant. The seizure protocol drafted by the police and signed by an employee of the publishing company on 8 April 2003, recorded that copies of the book were not found in the publishing house, as they had already been distributed to the book shops. According to the applicant the latter, informed of the seizure order, returned the copies of the book to him. On 8 April 2003 after taking the applicant’s statements, the Kadıköy Public Prosecutor issued an advance payment order for 4,542,890,000 Turkish Liras (TRL). According to this order, in case of payment of the due amount within ten days from the date of issue, no criminal charges would be brought against the applicant. On 15 April 2003 the applicant filed an objection against the seizure order, arguing that there was an unjustified interference with his rights guaranteed by Articles 9 and 10 of the Convention. On 17 April 2003 the Kadıköy Criminal Court dismissed his objection. The applicant did not pay the amount due. Consequently, on 24 April 2003 Kadıköy Public Prosecutor filed an indictment, charging the applicant under Article 426 of the Criminal Code, for publishing indecent or obscene material. On 30 October 2003 the Kadıköy Criminal Court of First Instance noted that, following an amendment which had come into force on 7 August 2003, literary works were excluded from the sphere of application of Article 426 of the Criminal Code. It consequently acquitted the applicant and ordered the restitution of the books. Article 426 of the Turkish Criminal Code provided that those who published offensive, indecent or obscene materials and thereby tended to corrupt public morals, would be sentenced to a fine. Following the adoption of law no. 4963, which came into force on 7 August 2003, Article 426 of the Criminal Code was amended. Accordingly, scientific and artistic works and any work of literary value was excluded from the sphere of application of the Article.