SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36075/03 by Orhan SAPAN against Turkey

The European Court of Human Rights (Second Section), sitting on 3 May 2007 as a Chamber composed of:

Mrs F. Tulkens , President, Mr A.B. Baka , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Ms D. Jočienė , Mr D. Popović , judges, and Mrs F . Elens-Passos , Section Deputy Regist rar ,

Having regard to the above application lodged on 16 October 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Orhan Sapan , is a Turkish national who was born in 1963 and lives in Istanbul . He was repres ented before the Court by Mr E. Kanar , a lawyer practising in Istanbul . The Government did not appoint an agent to represent them.

A. The circumstances of the case

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 h e 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.

B. Rele vant domestic law

Article 426 of the Turkish Criminal Code provided that those who publish ed 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, wh ich came into force on 7 August 2003, Article 426 of the Criminal Code w as amended. Accordingly, scientific and artistic works and any work of literary value was excluded from the sphere of application of the Article .

COMPLAINT

The applicant complained that the seizure of the copies of the book was in violation of his rights guaranteed under Article 10 of the Convention.

THE LAW

The applicant alleges a violation of his right to freedom of expression as guaranteed by Article 10 of the Convention, which reads insofar as relevant as follows :

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of health or morals, .. .”

The applicant contended that , although he was even tually acquitted of the charges, on account of the seizure order he had been a victim of a violation of Article 10 during the criminal proceedings. He alleged that , following the seizure order , all the book s h o ps had returned to him the ir copies of the book and , after that , he had been unable to either sell or print it .

The Government maintained that the applicant had been acquitted of the charges brought against him. Moreover, the authorities were unable to execute the seizure order since all copies of the incriminated book had already been delivered to the book shops. They therefore contended that the applicant could not claim to be the victim of a violation of Article 10 of the Convention.

The Court observes that the applicant was acquitted on the ground that the book in question was a literary work and therefore his acts did not constitute a criminal offence under Article 426 of the Criminal Code. As regards the seizure order, the Court notes that the parties do not dispute the fact that the seizure order has never been executed. However, the applicant was unable to market the book for six months as a consequence of the order. Nevertheless, following the judgment of the Kadıköy Criminal Court of First Instance, normal sales were resumed.

The Court also observes that the applicant did not demonstrate in what way he had been affected during that interim six month period. In particular, he did not show the existence of any damage which has not been compensated by subsequent sales, or any loss of opportunity at the time (see Erol and others v. Turkey ( dec .) , no.37350/97, 27 January 2004).

In these circumstances, the Court considers that the applicant cannot claim to be a victim of a violation of Article 10 of the Convention , within the meaning of Article 34. It follows that the application is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.

Having regard to this conclusion, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court by a majority

Declares the application inadmissible.

F. Elens-Passos F. Tulkens Deputy Registrar President