Attorneys Deniz Ali İlkem Demir and Mehmet Ruşen Gültekin: Artistic freedom of expression is a constitutional right

Recent events involving two different artists in Turkey demonstrate that the law is still being used as a cudgel to attempt to restrict art. Following their performance at Küçükçiftlik Park on September 6, the group Manifest faced an investigation on charges of "indecent behavior," while Mabel Matiz was brought to the attention of the judiciary over allegations of obscenity due to his song "Perperişan."

The Manifest concert was a ticketed, indoor event with an 18+ age restriction. Article 225 of the Turkish Penal Code only criminalizes acts of "engaging in sexual intercourse in public" and "exhibitionism." The dance performances presented at the concert fall outside this scope. Exhibitionism only arises when a person publicly displays their sexual organs or body parts of a sexual nature. Therefore, there is no act that constitutes a crime.

Similarly, when evaluated under Article 226 of the Turkish Penal Code, Mabel Matiz's song is not defined as a crime under the law. While the article criminalizes the dissemination of obscene content, the 7th paragraph of the same article provides a clear exception for works with artistic and literary value; such works cannot be subject to sanctions provided that children's access is prevented. Therefore, the lyrics are within the scope of freedom of expression and are lawful, regardless of claims that they do not conform to society's highly relative concept of "moral" rules. For this reason, the investigation initiated constitutes an interference with the artist's freedom of expression, which is guaranteed by the Constitution and the Turkish Penal Code.

JUDICIAL CONTROL MEASURES

The judicial control measures applied in both cases are also open to debate. The travel ban and signature requirement imposed on Mabel Matiz, and the travel ban placed on the members of Manifest, are unlawful in light of the information explained above. If there is no crime, protective measures cannot be applied. Furthermore, the implementation itself is unlawful. According to the Criminal Procedure Code, judicial control is only provided for in cases of strong suspicion of a crime and concrete danger. Here, there is neither a serious suspicion of a crime nor a risk of flight or tampering with evidence. These measures have exceeded the exceptional nature of judicial control and have effectively become a form of preemptive punishment for a non-existent crime.

PROTECTION OF ART UNDER THE CONSTITUTION

Artistic freedom of expression applies not only to ideas that are accepted or considered harmless in society, but also to works that are sometimes disturbing, shocking, or challenge established patterns. A limitation on this freedom can only be considered legitimate if it meets a truly pressing social need and is in accordance with the principle of proportionality. Otherwise, the limitation violates the fundamental rights and freedoms guaranteed by Articles 26, 27, and 64 of the Constitution.

Article 64 of the Constitution imposes an obligation on the state to support artistic activities and artists, protect works of art, and promote the love of art. Article 27 guarantees the freedom of science and art; everyone has the right to freely learn, teach, explain, disseminate, and research science and art. A work cannot be banned simply because it is disliked by some people or offends the "relative" moral sensitivities of a certain segment of society. Such practices both contradict the principles of equality, freedom, and the rule of law in the Constitution and constitute an interference with freedom of expression, as emphasized in the decisions of the Constitutional Court.

Furthermore, the case law of the European Court of Human Rights (ECHR) also reveals that artistic freedom of expression should be interpreted broadly. In its judgment in Handyside v. United Kingdom (1976), the ECHR emphasized that the fact that a work is "disturbing, shocking, or offensive" cannot, by itself, be sufficient to restrict freedom of expression. The Court stated that the protection of artistic and literary expressions is essential for the development of a democratic society.

The legal system cannot allow a work of art to be banned simply because it is not pleasing to some people. Disagreeing with a particular view or preferring another line of thought can in no way form the basis for restricting a work. The characterization of right or wrong inherently involves a value judgment; a behavior that is not considered a crime in the legal order cannot be banned simply because it is disliked. This is contrary to the principle of legality. It is not possible to define a crime based on social sensitivities or variable moral norms. The case law of the Court of Cassation and the decisions of the Constitutional Court support this view, clearly demonstrating that arbitrary restrictions on artistic expression are unconstitutional.

In summary, as seen in the examples of the Manifest concert and Mabel Matiz's song, interventions in artistic freedom of expression are contrary to both the rights guaranteed by the Constitution and international legal norms. Art must be protected in all its expressions, not just those that are liked, but also those that question and provoke thought; arbitrary bans are incompatible with a democratic legal order.

As Mabel Matiz also emphasized, public order or public health is not so fragile as to be shaken by a song. Works of art have an impact beyond the temporary value judgments of societies; therefore, they should be evaluated independently of the variability of periodic moral understandings. Art is not limited to expressions that are pleasing or easily accepted by society; it must be protected along with all creative expressions that question, provoke thought, and sometimes disturb.

CONCLUSION

The Manifest and Mabel Matiz investigations once again reveal the difficulties facing art and freedom of expression in Turkey. The legal system should refrain from practices that put artists under pressure or restrict works independently of their value. Art is much more permanent than rules; it cannot be imprisoned by temporary value judgments. Art must exist with its freedom guaranteed by law and the constitution, and continue its existence freely with its disturbing and thought-provoking aspects.

Attorneys Deniz Ali İlkem Demir and Mehmet Ruşen Gültekin