Tuesday 16 February 2010

Literary Heritage Judgment - A Novel by Apollinaire

A century after its publication in 1907, the novel Les Onzes Milles Verges ("The Eleven Thousand Rods") by the French author Guillaume Apollinaire became the centre of a legal controversy which ended at the highest European level. Yesterday the European Court issued its judgment in the case of Akdaş v. Turkey. The applicant in the case was the publisher of the 1999Turkish translation of the book, an erotic novel containing graphic descriptions of sadomasochism and vampirism amongst others. He was fined under the Criminal Code and the books were seized, since the book in the view of the Turkish courts was obscene and immoral and could arouse and exploit sexual desire among the people.

Akdaş complained in Strasbourg that his freedom of expression had been violated. It may not be surprising that the Court indeed found, in a very succinct judgment, a violation of Article 10 ECHR. What is more surprising is the reasoning which the Court adopted. It reiterated its well-established jurisprudence that morals may vary according to time and place and that in principle national institutions are best placed to assess what is morally acceptable. But then it went on to observe that Apollinaire was a globally renowned author, that the novel had been published many times and in many languages, that it had first been published over a century ago (when it caused a scnadal in France itself) and had even become canonised by being included in the prestigious French literature series 'La Pléiade'. And then comes the crucial passage on the margin of appreciation in this case (para. 30): the Court "considère que la portée de cette marge d'appréciation, en d'autres termes, la reconnaissance accordée aux singularités culturelles, historiques et religieuses des pays membres du Conseil de l'Europe, ne saurait aller jusqu'à empêcher l'accès du public d'une langue donnée, en l'occurrence le turc, à une œuvre figurant dans le patrimoine littéraire européen." Loosely translated, the Court held that the margin of appreciation given to countries because of their cultural, historical and religious particularities ends when it prevents the access of the public (in their own language) to a work which is part of Europe's literary heritage! That sufficed for the Court to conclude that the Convention had been violated. The character of the penalty was only an accessory reason in the Court's argumentation. Thus, apparently, what has become part of the "canon of art" can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe's common heritage!

One may note, by the way, that the novel was banned in France itself until 1970(!) before being applauded officialy as a literary masterpiece. Indeed, not only morals may change over time...

The judgment itself is, fittingly, in French but an English-language press release can be found here.