The ECHR judgment of 22 November 2016 in the case of the Kaos GL Association v. Turkey (Kaos GL v. Turkey) (application No. 4982/07).
In 2007, the applicant association was assisted in the preparation of the application. Subsequently, the application was communicated to Turkey.
In the case, a complaint was successfully examined for the seizure and confiscation of all copies of the journal number containing an article on "pornography" for more than five years. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
All copies of the issue number published by the applicant, the association responsible for protecting the rights of the LGBT community, were seized by the authorities in July 2006. The content of certain articles and images published in the subject "pornography" in this issue contradicted the principle of protecting public morals. Confiscation of copies of the journal was canceled in February 2012 after the decision of the Court of Cassation.
ISSUES OF LAW
Concerning compliance with Article 10 of the Convention. The seizure of all copies of the issue number constituted an interference with the applicant's right to freedom of expression, as provided for by the constitutional law and aimed at protecting public morals. Decisions made by the courts of Turkey did not specify the reasons why a particular article or image published in the relevant issue of the journal contradicted public morality. Consequently, it can not be recognized that the domestic courts have appropriately assessed the criteria that must be taken into account in order to restrict the freedom of expression of the applicant association. Accordingly, the argument concerning the protection of public morality, formulated in such a vague and unreasonable form, was not sufficient to justify the decision to seize and confiscate all copies of the journal number for more than five years.
In the Court's view, taking into account the content of articles on the sexuality of the LGBT community on pornography, and the unambiguous nature of certain images used that could offend the public, the relevant issue number could be considered a specialized publication addressed to a particular group of society.
Thus, the magazine was not intended for the entire public, and this fact was recognized by the applicant association. Accordingly, even though only a small number of copies of the magazine were allocated for sale in news outlets, the measures taken to block the access of certain groups of citizens, especially minors, to this publication could meet the pressing social need. However, although the need to protect the feelings of a part of society, particularly minors, was acceptable for the protection of public morals, blocking the access of all persons to the disputed issue of the journal was not justified. In this regard, the Turkish authorities did not attempt to take precautionary measures less severe than the withdrawal of all copies of the number, such as the ban on its sale to persons under the age of 18, or the requirement for a special package with a warning for minors, or even recall publication from news kiosks , while refraining from withdrawing copies of subscribers.
Even assuming that, as the decision of the domestic criminal court suggested, seized numbers accompanied by a warning for persons under the age of 18 could be distributed after the confiscated numbers were returned, that is, after the decision of the Court of Cassation of February 2012, confiscation of copies of the journal and the delay for five years and seven months with the dissemination of the publication could not be regarded as proportional to the aim pursued.
Consequently, interference with the applicant association's exercise of the right to freedom of expression was disproportionate.
In the case there was a violation of the requirements of Article 10 of the Convention (unanimously adopted).
In the application of Article 41 of the Convention. Claims for compensation for any damage were not raised.