A scientific view being disputed, or a work of art being found disturbing, is not enough on its own for a sanction. The assessment must take into account the type of work, its context, its form of expression and its target audience. Furthermore, freedom of science and the arts is not an unlimited privilege that renders other people’s rights and legal protective provisions entirely ineffective. Any interference must rest on a justification grounded in expertise and proportionality.
This article draws on Articles 26 and 27 of the Constitution, Article 28 where it concerns publication, and the decision in İrfan Sancı (2), Application No. 2018/5652, March 30, 2022. The concrete subject of that decision is the publication of a literary work. Assessments concerning scientific research and academic statements do not mean that every detail of this case carries over unchanged to other fields.
What does freedom of science and the arts protect?
Article 27 of the Constitution regulates the right to learn, teach, explain and publish science and the arts freely, and to conduct research in these fields. Freedom of expression protects not only the content of the opinion expressed but also the manner in which it is expressed. Novels, poems, visual works, research and criticism do not use the same means of expression, so each must be examined in line with its context.
A character’s words in a novel cannot always be characterized as the author’s own call to action in real life. Likewise, when a scientific study presents a view under examination, this does not by itself show that the researcher adopts it. The distinction between reporting, criticism, fiction and direct advocacy must be drawn by looking at the work as a whole.
The scope of protection does not depend on every product necessarily having high aesthetic value. The personal taste of public authorities cannot be turned into the yardstick for determining which opinions may be expressed. Nevertheless, where, for a particular statutory exception, it is necessary to determine whether a work has scientific, artistic or literary merit, that question must be addressed with appropriate expertise and reasoning.
The difference between freedom and unlimited impunity
Using a scientific or artistic label does not make every act lawful automatically. The protection of children, personality rights, private life and other legal values may arise in the particular case. Separate obligations may also exist concerning research ethics, personal data and intellectual property rights.
Legal characterization: That a publication should be protected and that no restriction at all may be imposed on it are different propositions. Where a restriction exists, its legal basis, the aim pursued and whether lighter measures would be sufficient must be examined. A finding that the work is disturbing does not replace these steps.
What are the subject matter and ruling of the İrfan Sancı (2) decision?
The applicant, because of a literary work he had published, was prosecuted for facilitating the publication of obscene publications, and a decision deferring the prosecution had been issued against him. During the proceedings, divergent expert assessments of the nature of the work emerged. AYM examined whether these assessments addressed the experts’ expertise and method, and the work as a whole.
The Court noted that meaning in works of art may not be single or easily determined. Detaching parts of a work from their context, disregarding its fictional character, and letting personal moral or aesthetic standards become decisive may vitiate the constitutional assessment (§§ 57–68).
Direct quotation from the decision
“That a work has content harmful to children and that it constitutes the offence of obscenity within the meaning of Article 226 of Law No. 5237 are two separate legal facts.”
Location of the quotation: AYM, İrfan Sancı (2), Application No. 2018/5652, March 30, 2022, § 72.
This distinction does not diminish the need to protect children. On the contrary, it clarifies which protective tool applies under which conditions. An age-appropriate access measure and criminal liability cannot be established on the same conditions. The justification for one does not show that all elements of the other are met.
AYM’s ruling: The Court unanimously held that freedom of expression guaranteed by Article 26 of the Constitution had been violated, and ordered a retrial and non-pecuniary damages. Although freedom of science and the arts is discussed in the reasoning of the decision, the operative part should not be presented as a separate finding of a violation of Article 27.
Our assessment: The decision cannot be reduced to the conclusion that “every content in a literary work is free.” Its real significance lies in determining the nature of the work through competent examination, and in not resorting to the threat of severe criminal penalties without first considering lighter options aimed at protecting children.
Which gaps in expert examination matter?
The link between the expert’s field and the dispute
Appointing a person as an expert does not show that they are expert on every issue under debate. Where an assessment concerns literary genre, language, historical context or scientific method, the link between the expert’s competence and that field must be explained. In the İrfan Sancı (2) decision, AYM questioned that link and the basis on which the reports reached their conclusions.
An expert does not replace the authority that issues the legal ruling. A report explains matters requiring technical and specialized knowledge; legal characterization and responsibility for the decision belong to the court. Where reports diverge, the court must give reasons for adopting one of them over the others.
Method and the work as a whole
A few phrases selected from a work may not be sufficient on their own unless their relationship to the work’s purpose and form of expression is shown. The author’s identity, the period in which the work was produced, its genre, its target audience and its other parts should be assessed. AYM’s approach at § 58 underlines this contextual examination.
A report made up of conclusory labels such as “worthless,” “useless” or “disturbing” does not thereby explain its method. It must show which criterion was used and why, and which features of the work were linked to that criterion. In this way, the parties can effectively challenge the report, and the court can reach a decision that is open to review.
How is child protection balanced against adult access?
Protecting children from harmful content is an important legal aim. However, blocking the entire circulation of a work whose target audience is adults, or placing its publisher under the threat of severe criminal penalties, requires separate justification. The adequacy of tools such as access regulation, presentation format and age-related measures can be examined in the concrete case.
In the İrfan Sancı (2) decision, the protective tools under Law No. 1117 on the Protection of Children from Harmful Publications (Küçükleri Muzır Neşriyattan Koruma Kanunu) are distinguished from criminal liability under TCK 226. The decision considered together the printing and presentation features of the work, whether it contained visual content, and the likelihood that minors would be exposed to it (§§ 70–74).
The outcome of this case cannot be used as a general licence for content involving the real abuse of children, or for the elements of other offences. Legal assessment of literary fiction and the protection of real persons against harm are separate matters. Each has its own norms and specific conditions.
How are academic criticism and scientific debate assessed?
Finding a scientific view wrong or contested, and making that view the subject of a sanction, are different matters. The natural tools of scientific debate are counter-argument, methodological critique and reasoned evaluation. If a sanction is to be applied, the specific obligation said to have been breached must be identified.
The participation of academics in public debate is also important within the scope of freedom of expression. In the decision in Zübeyde Füsun Üstel and Others [GK], §§ 110–113, AYM does not accept a narrow approach under which academics may speak only within their field of expertise. However, that decision concerned criminal liability arising from a particular declaration; it does not resolve all disputes about research ethics or academic promotion.
Criticism of scientific work should not be merged under the same heading as allegations of plagiarism, data fabrication or unlawful use of personal data. Where such allegations exist, the conduct, the evidence and the specific procedure to be applied must be determined separately. Protecting freedom does not mean disregarding scientific integrity or the rights of other persons.
How should a file against a sanction be prepared?
The complete version of the work or study, its publication date, its target audience, its distribution format, expert reports and the passages on which the decision relies should be preserved together. The location of short quotations in the original text should be indicated. If a report is challenged, the response should address not only its conclusion but also any lack of expertise or method.
The nature of the alleged harm should be compared with the sanction chosen. Where it can be explained why a lighter measure would be adequate, that option should be made concrete. The mere fact that a work is well known, or that the author has a reputation, does not replace the examination; these may be elements of the context.
Criminal proceedings, administrative acts and private-law claims each require different routes of recourse. The substance of the constitutional objection should be put before the ordinary authorities. An individual application to AYM is, as a rule, made within thirty days after effective remedies have been exhausted. Redress depends on the source of the violation and the operative part of the decision; the same compensation or retrial outcome cannot be guaranteed in every file.
For more on this subject, see our articles Qualified rights in Constitutional Court decisions, The boundary between freedom of expression and insult and Press freedom and the balance with honour and reputation. For our firm’s work in this area, see the page on Constitutional Court and ECtHR applications.
Conclusion
The limits of freedom of science and the arts cannot be fixed by personal taste or by a few phrases taken out of a work. The İrfan Sancı (2) decision highlights the importance of expertise, method, holistic examination and lighter protective tools. The need to protect children and the elements of criminal liability should be established separately; an academic or artistic character should not be used as a label that removes all liability.
Frequently Asked Questions
Is it enough for a work to be disturbing to justify a ban?
No, it is not enough on its own. The legal basis, the aim pursued, the context of the work and the necessity of the interference must be examined. Personal taste does not replace the constitutional standard.
Does an expert conclusively decide that a work is unlawful?
An expert provides technical and specialized knowledge; the legal ruling belongs to the court. The court must assess the report’s method, the expert’s competence and any objections.
Does every work unsuitable for children constitute the offence of obscenity?
No. AYM treated content harmful to children and the commission of an offence under TCK 226 as separate legal facts. Each is examined on its own conditions.
Which right was found to have been violated in the İrfan Sancı (2) decision?
The operative part concerns the violation of freedom of expression under Article 26 of the Constitution. The reasoning on artistic expression should not be presented as if it were a separate violation found in the operative part.
May an academic express views only within their field of expertise?
No. Making statements on public matters is also part of freedom of expression. However, the content of the specific statement and any separate professional obligations are assessed separately.
Sources and legal bases
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Articles 13, 26, 27 and 28.
- AYM, İrfan Sancı (2), Application No. 2018/5652, March 30, 2022, §§ 51–74 and operative part.
- AYM, Zübeyde Füsun Üstel and Others [GK], Application No. 2018/17635, July 26, 2019, §§ 110–113. Links to the decisions may require logging in.
- Law No. 5237 Turkish Penal Code (Türk Ceza Kanunu), Article 226; Law No. 1117 on the Protection of Children from Harmful Publications (Küçükleri Muzır Neşriyattan Koruma Kanunu), protective provisions assessed in the decision.
- AYM, Qualified Rights: Decision Summaries (Nitelikli Haklar: Karar Özetleri), June 2025, section on freedom of science and the arts.