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11/09/2021 https://www.esin.av.tr/wp-content/themes/esin/images/esin.jpg

Kars “Monument of Humanity” Decision: Constitutional Court Values the Sculptor’s Freedom of Expression Over Public Interest

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Intellectual Property
General

Recent Development

The Constitutional Court examined the individual application made by Mehmet Aksoy (“Applicant“) alleging that his freedom of expression was violated due to the destruction of his artistic work, “Monument of Humanity” in 2011. The Constitutional Court’s decision no. 2014/5433 and dated July 11, 2019 (“Decision“) ordered that the Applicant be compensated TRY 20,000 in non-pecuniary damages by a majority vote. The decision was published in the Official Gazette dated November 25, 2019.

Background of the Individual Application 

In 2005, the Kars Municipality Assembly decided to build a “Monument of Humanity” to symbolize peace in the cultural geography where Kars is located.

Following the construction of the statue, the Board decided to demolish the structures in the area where the statue was located, on the grounds that there were rifle emplacements and vaulted structures made during the Second World War in the region and therefore the region had cultural asset characteristics. Accordingly, the Monument of Humanity was demolished with the Municipal Assembly’s decision. At the end of conflicting decisions and a long legal process, the Applicant’s request for annulment was rejected and the Court of Cassation approved this decision.

The monument has been widely discussed in national and international presses; numerous artists and associations have spoken out to ensure that the statue is not destroyed.

Upon the exhaustion of the domestic remedies, the Applicant filed an individual application with the Constitutional Court in 2014.

In his individual application, the Applicant claimed that artistic work are an extension of the freedom of expression; that the state’s interference with the artistic work through subjective evaluations causes a violation of the freedom of expression; and that his right to a fair trial has been violated. He argued that his rights protected by Articles 2, 26, 64 and 138 of the Constitution are violated, and therefore requested non-pecuniary damages.

Constitutional Court’s Decision and its Reasoning

After firstly determining that the Applicant had exhausted all the legal remedies, the Constitutional Court determined that the “Monument of Humanity” is an artistic work whose author and right owner of financial and moral rights is the Applicant as per the Law No. 5846 on Intellectual and Artistic Works. The Constitutional Court decided that the destruction of the artwork by the state interfered in the Applicant’s freedom of expression.

The Constitutional Court outlined the scope of the protection of the freedom of expression by reiterating that “Artistic freedom of expression, which is a sub-branch of the freedom of expression, ensures that the works of the artist can be conducted freely, without interference. Freedom of expression covers political, artistic, academic or any expression of opinions and thoughts” and highlighted the state’s obligation to not unnecessarily interfere with the freedom of expression of those who create the artistic works.

The Decision determined that the state did not fulfill its obligation to preserve the artistic work since the work was directly destroyed without making an effort to carry out the necessary negotiations and without examining whether it was possible to transfer the artistic work to another place without being destroyed.

Conclusion

The Constitutional Court emphasized that the state should seek alternative ways of addressing this problem before an artistic work is destroyed. By referring to the moral rights of the artistic work’s owner, the Constitutional Court highlighted that the freedom of expression of individuals cannot be arbitrarily limited, and therefore decided that the destruction of the statue constitutes a violation of freedom of expression. This Decision reiterates both the importance of the state’s obligation to protect the copyrighted work and is a positive step in protecting artists’ freedom of expression.