Call for contribution on a legal issue
This is a discussion on Call for contribution on a legal issue within the Attorneys & Legal Ethics forum, part of the ATTORNEYS, COURTS, LITIGATION category; Dear colleagues, I am attaching a judment made in Turkey. Could you contribute this putting forward your opinion and also ...
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|Nov 6th, 2008, 12:37 PM||#1|
Call for contribution on a legal issue
I am attaching a judment made in Turkey. Could you contribute this putting forward your opinion and also quoting legal regulations stating the number of the Law. Please state where you are so that I can evaulate what country looks in what way.
It would be great contribution to find any judgment of a Supreme Court of any Country especially in Europe.
Thank you in advance.
ALLEGATION : A criminal case has been lodged with Pendik Magistrate Criminal Court by Pendik Prosecution office against the defendant alleging that the defendant, as he accepted, offered pornographic movies for sale on his business premises on the date of crime, demanding the defendant to be punished with transfer articles shown in the indictment.
Pendik Magistrate Criminal Court decided that it lacked juristiction and sent the criminal case file to our Court of Law.
DEFENSE : In his defense, the defendant stated that because he has no other business to do he had to offer porn movies that were seized on his business premises for sale.
EVIDENCE : It is understood from the official records that is in the case file and that is titled Record and A record having the conversation with prosecuter and dated 06.02.2006 that after pornographic movies had been seen by the police it was reported to the public prosecuter and a search was conducted as directed by the public prosecuter. One hundred and twenty-five pornographic movies were found and seized. The seizure was approved by the Court later.
EVALUATION OF THE EVIDENCE AND REASONING: It has been proven by the evidence of Indictment, the defense of the defendant, the transcript of the viewing of the movies, and other documents and official records relating to the incident, the trial that has been conducted, and all the case file coverage that one hundred twenty five pornographic movies including scenes of sexual intercourse between two or more adults of both genders as a group and including homosexual and lesbian sexual intercourse in various positions (but not including sexual intercourse with animals or minors) were found on the date of the crime and seized by police from the premises of the Defendant in Gazipasa Street where he markets and distributes movies in VCD, CD, and DVD formats and it has been proven that the defendant offered such pornographic movies for sale without permission of appropriate authorities.
Although these materials are those that are considered obscene, the scenes including homosexual and lesbian sexual intercourse and intercourse between more than two adults must be discussed and a decision must be made as to whether they are sexual acts that are unnatural as is stipulated in Article 226, subsection 4 of Turkish Penal Code.
INTERNAL LAW PROVISIONS: Everyone is equal before the law regardles of their language, race, colour, gender, political belief, religion, philosophical belief, denomination stipulates article 10 subsection 1 of Turkish Constitution. Women and men have equal rights. State has a duty to effectuate this equality states the subsection of the same provision. In addition, according to article 20 of Turkish Constitution Everyone has a right to demand for their privacy and family life to be respected.
INTERNATIONAL LAW DOCUMENTS: Everyone has a right for their privacy, family life, premises and communication to be respected stipulates article 8 of European Convention on Human Rights that is directly applicable according to article 90 subsection 5 of Turkish Constitution. In the same Convention, the prohibition of discrimination is expressed as The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
It is pointed out relating prohibition of discrimination in article 13 of Treaty establishing the European Community that Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or SEXUAL ORIENTATION. A directive that was dated 27.11.2000 and numbered 2000/78 was adopted by the Council of Europe in this issue. The aim of this directive is described as The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or SEXUAL ORIENTATION as regards employment and occupation with a view to putting into effect in the Member States the principle of equal treatment. Additionally, it was envisaged in this directive in general that legal protection measures against the implementations contrary to the principles stated above would be taken, while it was made compulsory for the Member States to adopt and submit legal arrangements including deterrent sanctions to the European Comission until 2 December 2003.
JUDGMENTS OF EUROPEAN COURT OF HUMAN >RIGHTS< : 1. JUDGMENT: The house of Jeffrey Dungeon, who is a shipping clerk in Northern Ireland and who has determined his sexual orientation as homosexual, was searched by the police because of allegations of misuse of drugs. During the search, photographs and papers depicting homosexual conduct with men were found and siezed. He was questioned by the police for some time and his abovementioned belongings were not returned to him for almost one year.
The bases of prohibiting homosexual life style are Personal Act dated 1861 (Sections 61-62), The Law ammending Penal Law dated 1885 (Section 11) and the common law. It is understood by the mentioned legal documents that anal sexual intercourse between two men and that of between a man and a woman and acts of gross indecency between two men were prohibited and punished. However, it is also known that no one was convicted under those legal provisions.
The European Court of Human Rights reached the conclusions mentioned below in the judgment made on 23 September 1981 in the application made by Mr Dudgeon:
According to article 8 of European Convention on Human Rights, everyman has the right to respect for his private and family life, his home and his correspondence. Except for incidents stated in the second subsection of the said article, public authorities have no right to interfere in these fields. In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life whether he respects the law and refrains from engaging (even in private with consenting male partners) in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.
The concept to be necessary within the meaning of Article 8 does not contain those namely beneficial, reasonable, and desirable, while it implies a pressing need of society for the state to interfere in abovementioned fields. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons for public interferences.
The moral point of view of society is one of the reasons that should be taken into account in determining whether such interference is necessary. The sensitivity of the Northern Ireland Society is clear. However, it is not enough for the Court to decide that interference is necessary. The fact that In Northern Ireland itself, the authorities have refrained from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years for many years prove that it has not been injurious to moral standards in Northern Ireland. It cannot be maintained in these circumstances that there is a 'pressing social need'.
Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved. In particular, the moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant's private life to such an extent. 'Decriminalisation' does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features.
To sum up, the restriction imposed on Mr. Dudgeon under Northern Ireland law is disproportionate to the aims sought to be achieved. The Court has already acknowledged the legitimate necessity in a democratic society for some degree of control over homosexual conduct notably in order to provide safeguards against the exploitation and corruption of those who are specially vulnerable and those who are minors. However, it falls in the first instance to the national authorities to decide on the appropriate safeguards of this kind required for the defence of morals in their society and, in particular, to fix the age under which young people should have the protection of the criminal law. In the present case, Mr. Dudgeon has suffered and continues to suffer an unjustified interference with his right to respect for his private life. There is accordingly a breach of Article 8.
JUDGMENT OF THE U.S. SUPREME COURT:: Subject matter of appeal: It is an application by two men against a judgement punishing them in accordance with a Texas statute that makes certain intimate sexual acts between persons of the same sex a crime.
Incident: Police, though having been called for another reason, entered petitioner Lawrence's apartment and saw him and another adult man engaging in a private, consensual sexual act. The police reported their findings to appropriate authorities. The petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. The judgment was appealed. An intermediate appellate court held that the judgment was right and was not unconstitutional. This judgment was also appealed and The Supreme Court of United States concluded that the judgment of lower court was unconstitutional, and on June 26, 2003, put forward conclusion below.
The Supreme Court maintained that, according to the Fourteenth Amendment of the Constitution, people, as adults, are free in their private conduct in their homes. Pointing out the fact that only nine states have this kind of prohitibion and four of them implement it, the Supreme Court held that the principle of freedom in private life implies that individuals can decide solely how they conduct their private life in issues relating sexual life.
Making reference to the fact that the case did not involve minors, and did not include violence, or forced sex, the Supreme Court overruled the Judgment of Federal Appellate Court approving that of Local Court.
FİNAL EVALUATION: It is mentioned in the article 226 subsection (4) of Turkish Criminal Law numbered 5237 as sexual acts with the use of force, animals, a human corpse, or in any other unnatural manner. There is no explanatory statement in the reasoning of the Law. It is seen that the term unnatural sexual intercourse is not defined in the Law. Law-maker want to help interprute the concept unnatural sexual conduct by way of illustration.
In this case, there is no sexual act with corpses, minors, animals and that of containing violence. Though the examples included in the Law is not restrictive, the act must have a quality resembling these examples. At the present day, there are countries where marriage is possible among the people having same sex. Sexual orientation of individuals withing the context of prohibition of discrimination is stated in the above mentioned legal arrangements, and thereby respect for sexual orientation is made compulsory and sanctions is envisaged for implementations contrary to this principle. To this effect, partnership between same gender is accepted as equivelant to marriage in many European Countries, and in Netherland, which is one of them, marriage between same sex has been made possible for a few years.
In a world where there are contemporary countries permiting partnership between same gender, it is not possible to regard sexual acts between same gender in pornographic movies that are subject matter of the case to be unnatural. The judgments of European Court of Human Rights and the provisions of European Convention of Human Rights, too, are in line with this explanations.
Considering the attitude of provisions of International Law and Judgments of ECHR in that individuals should be able to solely determine their sexual orientation, and implementations contrary to this principle should be punished, despite the possibility that some part of society may be shocked with this choice and be against it,both sexual acts between the same gender and (as it is shown in the materials which are subject matter of the case) sexual acts involving more than two adults must be accepted as are conducted based on the right to self-determination of sexual orientation, and as long as it is done in private, does not include minors and is not done violently may not be prevented. It should be remembered in this point that European Convention on Human Rights, which is one of the legal documents discussed above, is the one to which Turkey is party, and, according to Section 90 Subsection 5 of Turkish Constitution, has a statue as an internal law.
As for the issue of whether the scenes that are contained in the pornographic movies in question and called group sex (meaning the ones in which more than two adults are included) are those which are unnatural: the term unnatural sexual act should be defined considering the illustrations made in the Law and should not be interpreted extensively. Otherwise, there would be the risk that every sexual act that is outside of the limited area could be interpreded as unnatural.
Undoubtedly the scenes contained in the movies in question and explained by what is contained above are those which are unusal and are not approved of by a majoritiy of society. However, considering the examples given in the law, for the scenes to be accepted as unnatural they must be equivelant to these examples and be disgusting and extreme and must indicate that the persons conducting these acts are mentally ill. Although these kinds of sexual activities are not often seen in many societies, they are practiced in every society. On the other hand, there is no prohibition stemming from the law for people to have abovementioned sexual relationships and individuals doing such acts are not punished neither in our country nor in European Countries. The abovementioned case that was subject matter of the judgment of European Court of Human Rights dated July 31, 2000 had also same context. Accordingly, even though the scenes including sexual acts with more than two adults contained in the pornographic movies that are subject matter of the case are obscene, they are not those conducted in an unnatural manner withing the meaning of the law.
Because the judgment of Pendik Criminal Magistrate Court numbered 1 dated 18.05.2004 having 1576 as a principle number and 508 as a judgment number relating to 681 YTL (Turkish currency) is ruled directly as a fine and is not appealable, the current case is not regarded as repeated offense because of article 305 of Code of Criminal Procedure, which was amended by article 3 of law numbered 5219 entering into force on 21.07.2004. Even so, due to the fact that there are other crimes which are included in criminal records of the defendant and which are not regarded as repetative offenses, the tendency of the defendant toward recidivism is revealed. Therefore, Our Court is of the opinion that the punishment should be more than the minimum and for the same reason the provisions in favor of the defendant and those relating to the delay of disclosing the judgment should not be implemented.
Taking into account the above mentioned evaluations, the judgment is made as is stated below.
BRIEF JUDGMENT: As the reasoning is stated above:
As it is proven that the defendant has committed the crime, as the reasons stated in article 61 of Turkish Penal Code numbered 5237, taking into account the number of materials comprising the subject matter of the case, and the tendency of the offender in repeatedly comitting crime that is understood by the content of the case file and criminal record of him, the defendant, according to article 226, second sentence of subsection 1, is to be punished with 7 MONTHS IMPRISONMENT and 100 DAYS JUDICIAL FINE.
Considering personal circumstances and economic conditions of the defendant, the daily fine is determined to be 20 YTL and, consequently, the defendant is to be punished with 7 MONTHS IMPRISONMENT AND 2000 YTL JUDICIAL FINE.
It is decided that the penalty of imprisonment inflicted upon the defendant is not to be converted into judicial fine, taking into account the characteristics of the offence and the tendency of the defendant in re-comitting the crime.
Taking into account the personal and economic conditions of the offender, the judicial fine is not going to be paid by installments.
It is decided that the offender is to be deprived of the rights stipulated in the article 53 of the Turkish Penal Code until term of imprisonment is ended.
As it is proven by the content of the case file, trial process, and criminal record of the offender that the offender would not avoid comitting crime, it is decided that the punishment IS NOT TO BE SUSPENDED. For the same reason the provision relating to the DELAY OF DISCLOSING THE JUDGMENT SHOULD NOT BE IMPLEMENTED.
The pornographic movies that are recorded as 2006/219 are to be kept in the case file as evidence.
The trial expenses amounted 104 YTL, and it is decided that they are to be collected from the offender.
That this judgement can be appealed to the relevant chamber of the Supreme Court by presenting a written petition to our Court or by a transcript made by the clerk of the Court of a verbal appeal has been stated in the presence of the offender October 17, 2008.
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