Literary judges

Too dim-witted to study, let alone understand, law, but still fascinated by it, I have come across a few excellent legal blogs. One such example, Strasbourg Observers, is a blog written by a team of researchers at University of Ghent as a part of the European Research Council funded project named Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning.

Some judgements can be hard on logic or seem plain bonkers, and one recent judgement looks very odd. An excellent summary and points of debate are raised in the blog article What is the European literary heritage?

The following is a personal take on the issue. I’m no lawyer, so expect mistakes.

The Turkish government had ordered the seizure of a Turkish translation of an erotic novel Les onze mille verges by Guillaume Apollinaire, which as the Court (available only in French) states:

[...] décrit des scènes de rapports sexuels crues, avec diverses pratiques telles que le sadomasochisme, le vampirisme, la pédophilie, etc.

So not exactly a nice read for the whole family. The Turkish Criminal Code prohibits publication of obscene or immoral materials that are liable to arouse and exploit sexual desire among the population. Both the text and illustrations fell foul of the law in the prosecutor’s view. So the editor, Mr Rahmi Akdaş ended up with a fine of TLR 684,000,000 (or about EUR 1,100), which would have been turned into a term of imprisonment at the rate of TLR 22,280,967 per day in case of non-payment.

The case ended up in the ECHR, and the judges decided that this work by an internationally known author Guillaume Apollinaire (whom and whose work I didn’t know, being a philistine, so I had to look up) belonged to the European literary heritage. The Court decided Les onze mille verges was European literary heritage on the following grounds: 1) this work was first published in 1907; 2) it has been reprinted many times and translated into in many languages; 3) it was included in the La Pléiade collection in 1993. While states can legislate and act against obscenity for the protection of morals, and the lines between the permissible and impermissible differed from one country to another, this didn’t apply here. The Court considered that the scope of the discretion states enjoyed on recognizing cultural, historical, and religious peculiarities does not extend to prevent public access a given language, i.e. Turkish, to works deemed European literary heritage. Furthermore, the Court decided that the interference suffered by Mr Akdaş, which consisted of imposing a heavy fine and seizure of all copies of the book, was not proportionate to the legitimate aim pursued.

If the same book were written in French now, and a Turkish translation appears soon after, which Turkey bans on the grounds of moral, then it may well be OK to do so. It was not the content of the book that made it European literary heritage, but the work’s age and fame. What factors are necessary to for a work to be considered European literary heritage? What’s the cut-off date? How many print runs are necessary? Who decides an author is world famous? Which publishing house has the clout to elevate a piece of work to the canon of Court-backed European literature? The list of questions can go on and on. What if someone tries to argue that Hitler’s Mein Kampf forms a part of the European literary heritage?

Are the judges of this court the final arbiters in deciding whether a piece of literature forms a part of the European litereary heritage? Perhaps there is a scope for legal surrealism as a literary genre.