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AKSU v. TURKEY - 4149/04 [2012] ECHR 445 (15 March 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/445.html
Cite as:
[2012] Eq LR 970,
56 EHRR 4,
[2012] ECHR 445,
(2013) 56 EHRR 4
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GRAND
CHAMBER
CASE OF
AKSU v. TURKEY
(Applications
nos. 4149/04 and 41029/04)
JUDGMENT
In the case of Aksu v. Turkey,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Nicolas
Bratza,
President,
Jean-Paul
Costa,
Josep
Casadevall,
Nina
Vajić,
Dean
Spielmann,
Karel
Jungwiert,
Anatoly
Kovler,
Elisabet
Fura,
Alvina
Gyulumyan,
Mark
Villiger,
Päivi
Hirvelä,
Luis
López Guerra,
Mirjana
Lazarova Trajkovska,
Nebojša
Vučinić,
Işıl
Karakaş,
Vincent
A. de Gaetano,
Angelika
Nußberger,
judges,
and
Michael O’Boyle, Deputy
Registrar,
Having
deliberated in private on 13 April 2011 and on 1 February 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in two applications (nos. 4149/04 and 41029/04)
against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Turkish national, Mr
Mustafa Aksu (“the applicant”), on 23 January and 4
August 2004 respectively.
The
applicant, who had been granted legal aid, was represented by
Mr S. Esmer, a lawyer practising in Ankara. The Turkish
Government (“the Government”) were represented by their
Agent.
The
applicant alleged that three publications – a book and two
dictionaries – that had received Government funding included
remarks and expressions that reflected anti-Roma sentiment. He relied
on Article 14 read in conjunction with Article 8 of the Convention.
The
applications were allocated to the Second Section of the Court
(Rule 52 § 1 of the Rules of Court). On 27 July 2010 a
Chamber of that Section composed of the following judges: Françoise
Tulkens, Ireneu Cabral Barreto, Danutė Jočienė,
Dragoljub Popović, Nona Tsotsoria, Işıl Karakaş
and Kristina Pardalos, and also of Stanley Naismith, Deputy Section
Registrar, delivered a judgment in which it decided to join the
applications (Rule 42 § 1) and held by four votes to three that
there had been no violation of Article 14 taken in conjunction with
Article 8 of the Convention.
On
22 November 2010, following a request from the applicant dated
25 October 2010, a panel of the Grand Chamber decided to refer
the case to the Grand Chamber under Article 43 of the Convention.
The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed further written observations
on the merits (Rule 59 § 1). In addition, third-party comments
were received from the Greek Helsinki Monitor, which had been given
leave by the President to intervene in the written procedure (Article
36 § 2 of the Convention and Rule 44 § 3).
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 13 April 2011 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr M.
Özmen, Co-Agent,
Ms A.
Emüler,
Mr M.Z. Uzun,
Ms N. Aksoy,
Mr O. Saydam,
Mr U.
Aksungur, Counsel;
(b) for the applicant
Mr S. Esmer, Counsel.
The
Court heard addresses by Mr Esmer and Mr Özmen.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, who is of Roma origin, was born in 1931 and lives in
Ankara.
A. Application no. 4149/04
1. The book “The Gypsies of Turkey (Türkiye
Çingeneleri)”
In
2000 the Ministry of Culture published 3,000 copies of a book
entitled “The Gypsies of Turkey”, written by Associate
Professor Ali Rafet Özkan. Before its publication, a
publications advisory board approved the content of the book. The
preface to the book states as follows:
“...
Gypsies live in peace on Turkish
territory today, just as they have throughout history, but now they
are left entirely to their own devices, without regulation,
supervision or attention. Their unregulated way of life, in which
they are abandoned entirely to their own fate, is a failing on
Turkey’s part. The Gypsies’ current unordered way of
life, and the fact that it is considered quite unnecessary to venture
into their closed world in any way despite the long history we share,
is a further shortcoming. Associated with this is the fact that while
Gypsies have indeed lived for many years among us, they have been
ostracised by local people and targeted by vilifying remarks which
have, for the most part, been unenlightened and prejudiced. The
negative response and distressing accusations which they encounter
wherever they go have driven Gypsies, who already have a societal
structure which is closed off from the outside world, to live in
still narrower confines.
We felt that there was a need to
step into the unknown world of these people who have lived among us
for centuries and have now become part of contemporary Turkish
culture. My aim was thus to get to know them closely using an
empirical approach, and to present the Gypsies of Turkey as they are,
in all their aspects, on the basis of the principles of scientific
objectivity.
This study comprises an introduction and two sections.
The introduction provides
information about the Gypsy as a concept and the origins of the
Gypsies, as well as detailed information about their migration, and
considers their history in Turkey in the light of various archive
documents and scholarly sources. In the first section, the
socio-cultural characteristics of Gypsies are considered in broad
terms. This section examines in particular the home life and travels
of Gypsies, their music, dance, language, traditions and customs. The
second section deals with the beliefs and practices of the Gypsies.
This study – which I present
without any pretensions, but merely in a bid to fill a significant
gap (it being the first study of its kind), and to provide guidance
to others working on the Gypsies in the future – was prepared
using descriptive, comparative and phenomenological methods, in
addition to participant observation and interview techniques.
...”
In
the introduction, the author went on to state that:
“...
Gypsies have spread throughout the world but they have
been unable to escape their status as a marginal group which is
excluded and despised everywhere. Apart from the differences in their
way of life, the characteristic which most obviously distinguishes
Gypsies from others is the colour of their skin, which is darker,
swarthier. In typological terms, most Gypsies are of medium height,
of agile build, with large dark black (occasionally hazel or blue)
eyes and long thick eyelashes; the men have long moustaches. The
mouth is slender and elegant, the teeth white and even, with a round
jaw. They have a narrow forehead and temples and a small cranium.
Their hair is curly, black, long and thick. Beyond middle age, the
women are broad and corpulent. The younger people are slim, with firm
and powerful muscles (see Carmen by Prosper Mérimée,
Gypsy Stories of our own and from around the world by Tahir
Alangu and The sieve-making of the Gypsies of Posalar by Esat
Uras).
...
This research is intended to present the identity of the
Gypsies, these people who have lived among us for centuries and have
become an integral part of contemporary Turkish culture, but about
whom no comprehensive scientific study has as yet been conducted
because their cultural identity has been largely ignored as a result
of the difficulties in identifying and defining them. This study will
give an account of their socio-cultural characteristics, beliefs,
mythologies, festivals and celebrations in all their aspects.
For the purpose of this study, an initial survey was
conducted of information, documentation and materials concerning
Gypsies, from Turkey and elsewhere. The information and documents
thus identified were then classified on the basis of their scientific
reliability, using validity criteria. Next, an empirical study
involving observation of the participants was carried out by going
among the Gypsy population and living with them. Visits were made to
all the areas of Turkey with a Gypsy population – both nomadic
and settled – and in this way an effort was made to establish
the facts about their way of life, traditions, beliefs, forms of
worship and practices, not only by gathering data and documentary and
other material, but also by the empirical method of living among
them.”
In
the book, the author devoted a chapter to the “Gypsies of
Contemporary Turkey”. In this chapter he stated that:
“Today’s Gypsies are scattered all over
Turkey. They are principally located in the Marmara, Aegean and
Mediterranean regions, with a lower concentration in the Black Sea,
Central Anatolia and South-east Anatolia regions. The distribution of
Gypsies in Turkey will be dealt with here.
...
So far no general population census has included
separate records for Gypsies; hence, the size of the Gypsy population
in Turkey is not known with certainty. Rather than using estimated
figures, we obtained information from Gypsies themselves, from local
people living nearby and from local administrators. We attempted to
clarify this information by making a comparison with the overall
district population figures which we received from the district
chiefs (muhtar).
...
Istanbul
...
Gypsies living within the provincial borders of Istanbul
generally make their living from music, flower-selling, scrap metal
dealing, rubbish and paper collection, blacksmithing and ironworking,
portering, fortune-telling, cleaning, working with a horse and cart,
copper smithing, slug collecting and door-to-door selling. There are
also some, albeit few in number, who make a living from
pick-pocketing, stealing and selling narcotics.
Tekirdağ
...
The Roma (Gypsies) of Tekirdağ make their
livelihood from playing music, portering and shoe shining. Women work
as domestic cleaners and handle bricks at the brick factory. Those in
Çorlu and Lüleburgaz earn their living from music,
portering, horse trading (livestock dealing), construction work and
running lotteries, and the women earn their living from cleaning.
Kırklareli
...
The Roma of Kırklareli generally make their living
from music, working with a horse and cart, street vending, portering,
cleaning and scrap metal dealing.
Edirne
...
Those who live in Edirne city centre generally earn
their living from working with a horse and cart, scrap metal dealing
and street vending, while the women contribute to the family economy
with cleaning work. Nearly all of the inhabitants of the Yukarı
Zaferiye district of Keşan earn their livelihood from music. The
rest of them work in various sectors such as labouring in the rice
fields, concrete-pouring on construction sites, portering, working
with a horse and cart, collecting frogs and slugs, scrap metal
dealing, paper collection, house painting and selling simit (a
type of bread roll). Those in Uzunköprü live from scrap
metal dealing, tin smithing and basket-making.
...
Ankara
...
The Gypsies of the central district of Ankara earn their
living from stealing, begging, door-to-door selling, fortune-telling,
zercilik (robbing jewellery stores) and making magical charms.
A small number are also involved in tin smithing, working with
leather harnesses, sieve-making and basket-making. There are also
many who work as musicians in nightclubs. It is reported that most of
those who trade in ironmongery around Altındağ and Hamamönü
are Gypsies from Çankırı.
...
We attempted to visit every province and district where
Gypsies were located. The figures which we have given for each
province were obtained by comparing information, noting the
exaggerated figures given by the Gypsies and then talking to the
district chiefs (muhtar), and where necessary the district
police. ...”
Similar
remarks to the ones quoted above were made in respect of the Roma
population living in other parts of Turkey such as İzmir,
Manisa, Konya, Adana and Antalya.
The
closing paragraphs of the conclusion to “The Gypsies of Turkey”
read as follows:
“The most important links connecting the Gypsies
to each other are their family and social structures as well as their
traditions. Despite the fact that they have led a nomadic life for
more than a thousand years, they have managed to protect their
traditional way of living thanks to the practice of marrying within
the group. Their attachment to these traditions begins at birth and
continues till death. Doubtless, tradition is the most significant
factor in the Gypsy way of life. The elderly members of Gypsy society
bear the heaviest responsibility for protecting and sustaining the
traditions. However, due to ever-changing circumstances and needs,
the social structure of the Gypsies has become difficult to preserve.
In particular “Natia”, one of these social
structures, can no longer be sustained in today’s Turkey.
The most striking characteristic of Gypsies is their way
of living. Hence, all branches of socio-cultural activity, consisting
of migration and settlement, dance, music, language, eating and
drinking, fortune-telling, sorcery and occupations, constitute the
true nature of Gypsy life. That is to say, these elements form the
visible part of the iceberg. Other persons usually recognise Gypsies
through these phenomena. Nevertheless, the way to truly know Gypsies
is to mingle with their society and fully analyse their traditions
and beliefs. The secret world of the Gypsies reveals itself through
their beliefs, in particular through their superstitions and taboos.
Gypsies, like everyone, feel the need to have faith and
to worship. In addition to adopting the religion of the country they
live in, they also perpetuate the traditional beliefs specific to
their culture. Consequently, it is observed that Gypsies have genuine
feasts and celebrations stemming from their beliefs, which can be
partly traced to Hinduism.
In our opinion these people, who suffer from humiliation
and rejection everywhere, could be transformed into citizens who are
an asset to our State and our nation once their educational, social,
cultural and medical problems are addressed. This simply entails
focusing on this issue with patience and determination.”
2. The domestic proceedings initiated by the applicant
On 15 June 2001 the applicant filed a petition with
the Ministry of Culture on behalf of the Turkish Roma/Gypsy
associations. In his petition he submitted that in the book, the
author had stated that Gypsies were engaged in illegal activities,
lived as “thieves, pickpockets, swindlers, robbers, usurers,
beggars, drug dealers, prostitutes and brothel keepers” and
were polygamist and aggressive. The applicant also submitted that the
book contained several other remarks that humiliated and debased
Gypsies. Claiming that these remarks constituted a criminal offence,
he requested that the sale of the book be stopped and all copies
seized.
On
the same day the head of the publications unit at the Ministry of
Culture ordered that the remaining 299 copies of the book be returned
to the publications unit.
On
11 October 2001 the applicant wrote a letter to the Ministry of
Culture enquiring whether the copies of the book had been seized.
On
17 October 2001 the head of the publications unit at the Ministry of
Culture informed the applicant that the publications advisory board
of the Ministry, composed of seven professors, had decided that the
book was a piece of scientific research and did not contain any
insults or similar remarks. The applicant was also informed that the
author of the book would not permit any amendments to the text and
that, at the author’s request, the Ministry had transferred
copyright of the book to him.
On
4 February 2002 the applicant sent letters to the Ministry of Culture
and to Associate Professor Ali Rafet Özkan, repeating his
initial request. He received no reply.
Subsequently,
on 30 April 2002, the applicant brought proceedings in his own name
against the Ministry of Culture and the author of the book before the
Ankara Civil Court of General Jurisdiction, claiming compensation for
the non-pecuniary damage he had sustained on account of the remarks
contained in the book. He alleged that these remarks constituted an
attack on his identity as a Roma/Gypsy and were insulting. The
applicant also asked for the copies of the book to be confiscated and
for its publication and distribution to be banned.
The
author of the book submitted, in reply, that his reference materials
had been the records of the Adana police headquarters and books
written by other authors on Gypsies, and that he had not had any
intention to insult or humiliate Gypsies. The author further stated
that the passages referred to by the applicant should not be
considered in isolation, but in the context of the whole book.
On
24 September 2002 the Ankara Civil Court dismissed the applicant’s
requests in so far as they concerned the author of the book. It
considered that the book was the result of academic research, was
based on scientific data and examined the social structures of
Roma/Gypsies in Turkey. The first-instance court therefore held that
the remarks in question did not insult the applicant. As to the
applicant’s case against the Ministry, the Civil Court decided
that it lacked jurisdiction and that the administrative courts were
competent to decide on the applicant’s claim.
On
25 October 2002 the applicant appealed. In his petition, he submitted
that the book could not be considered as scientific research and that
therefore the Ministry of Culture should not have published it.
On
21 April 2003 the Court of Cassation upheld the judgment of the
first-instance court. It noted that the remarks objected to by the
applicant were of a general nature. It therefore found no grounds for
concluding that they concerned all Roma/Gypsies or that they
constituted an attack on the applicant’s identity.
On
8 December 2003 a request by the applicant for rectification of the
decision was dismissed.
Subsequently,
on an unspecified date, the applicant initiated proceedings against
the Ministry of Culture before the Ankara Administrative Court. He
requested non-pecuniary compensation, alleging that the content of
the book published by the Ministry of Culture had been offensive and
insulting towards the Roma/Gypsy community. On 7 April 2004 the
Administrative Court dismissed the applicant’s case. It held
that before its publication, the book in question had been examined
by a rapporteur appointed by the publications advisory board.
Following his approval, the advisory board had agreed to publish the
book. In the wake of the applicant’s allegations the advisory
board, composed of seven professors, had examined the book again on
25 September 2001 and had decided that it was an academic study based
on scientific research and that no inconvenience would be caused by
continuing its distribution and sale. The Administrative Court
therefore concluded that the applicant’s allegations were
unsubstantiated. The applicant did not appeal against this decision.
B. Application no. 41029/04
In
1991 and 1998 respectively the Language Association, a
non governmental organisation, published two dictionaries
entitled “Turkish Dictionary for Pupils (Öğrenciler
için Türkçe Sözlük)” and
“Turkish Dictionary (Türkçe Sözlük)”.
Apart from their titles, both dictionaries had exactly the same
content. The publication of these dictionaries was part-financed by
the Ministry of Culture.
On
30 April 2002 the applicant sent a letter to the Executive Board of
the Language Association on behalf of the Confederation of Roma/Gypsy
Cultural Associations. In his letter, the applicant submitted that
certain entries in the dictionaries were insulting to and
discriminatory against Roma/Gypsies.
On
page 279 of both dictionaries, the following entries were made
regarding the word “Gypsy” (çingene):
“Gypsy” (çingene):
an ethnic group or person belonging to an ethnic group
originating from India, whose members lead a nomadic way of life and
are widely dispersed in the world. 2. (metaphorically)
miserly.
“Gypsy debt” (Çingene
borcu): an unimportant debt which consists of several small
debts.
“Gypsy plays Kurd dances” (Çingene
çalar Kürt oynar): a place where there is a lot of
commotion and noise.
“Gypsy tent” (Çingene
çergesi) (metaphorically): a dirty and poor place.
“Gypsy wedding” (Çingene
düğünü): a crowded and noisy meeting.
“Gypsy fight” (Çingene
kavgası): a verbal fight in which vulgar language is used.
“Gypsy money” (Çingene
parası): coins.
“Gypsy pink” (Çingene
pembesi): pink.
“Gypsy language”
(çingenece):
language used by Gypsies.
“Gypsiness” (çingenelik):
1. being a Gypsy 2. (metaphorically) being miserly or
greedy.
“Becoming a Gypsy” (Çingeneleşmek):
displaying miserly behaviour.
In
the applicant’s opinion, the entries regarding the Gypsy
community had negative, discriminatory and prejudiced connotations.
The applicant further submitted that the Ministry of Education and
the Turkish Language Society had amended their dictionaries at his
request, and likewise asked the Language Association to correct the
above-mentioned definitions and to remove any discriminatory
expressions from the dictionaries. He received no reply to his
letter.
Subsequently,
on 15 July 2002, the applicant sent a further letter to the Language
Association, repeating his request. He added that he would bring a
case against the Association if his request was not granted by
20 August 2002.
On
16 April 2003 the applicant brought proceedings in the Ankara Civil
Court of General Jurisdiction against the Language Association,
requesting that the aforementioned definitions and expressions be
removed from the dictionaries. The applicant also requested
compensation for the non pecuniary damage he had sustained on
account of the expressions contained in the dictionaries. In that
connection he alleged that the dictionary definitions constituted an
attack on his identity as a Roma/Gypsy and an insult to him
personally.
In
its submissions in reply, the Language Association maintained, inter
alia, that the definitions and expressions contained in the
dictionaries were based on historical and sociological reality and
that there had been no intention to humiliate or debase an ethnic
group. It further submitted that the dictionaries contained
expressions and definitions that were commonly used in society and
that there were other similar expressions in Turkish which concerned
Albanians, Jews and Turks.
On
16 July 2003 the Ankara Civil Court dismissed the applicant’s
case. It held that the definitions and expressions in the
dictionaries were based on historical and sociological reality and
that there had been no intention to humiliate or debase an ethnic
group. It further noted that there were similar expressions in
Turkish concerning other ethnic groups, which appeared in
dictionaries and encyclopaedias.
The
applicant appealed. On 15 March 2004 the Court of Cassation upheld
the judgment of 16 July 2003.
II. RELEVANT DOMESTIC LAW
A. Civil Code
Article
24 of the Civil Code reads as follows:
“Any person whose personal rights are unlawfully
infringed may apply to a judge for protection against all those
causing the infringement.
An infringement is unlawful unless it is justified by
the consent of the person whose rights have been infringed or is made
necessary by an overriding private or public interest or by law.”
Furthermore,
according to Article 25 of the Civil Code:
“A claimant may ask a judge to prevent a threat of
infringement, to order the cessation of an ongoing infringement or to
establish the unlawfulness of such an infringement even where it has
already ceased.
In addition to such action the claimant may also request
that the rectification or the judgment be published or served on
third parties.
...”
B. Criminal Code
Article
312 § 2 of the former Criminal Code provided as follows:
“...
Any person who incites others to hatred or hostility on
the basis of a distinction between social class, race, religion,
denomination or region shall, on conviction, be liable to between one
and three years’ imprisonment and to a fine of between nine
thousand and thirty-six thousand liras. If this incitement endangers
public safety, the sentence shall be increased by between one third
and one half.”
On
1 June 2005 a new Criminal Code (Law no. 5237) entered into force.
Article 216 of the new Code provides as follows:
“1. Any person who publicly provokes hatred
or hostility in one section of the public against another section
with different characteristics based on social class, race, religion,
sect or regional differences, such as to create a clear and close
danger to public safety, shall be sentenced to a term of imprisonment
of one to three years.
2. Any person who publicly denigrates a
section of the public on grounds of social class, race, religion,
sect, gender or regional differences shall be sentenced to a term of
imprisonment of six months to one year.
...”
III. DOCUMENTS OF THE EUROPEAN COMMISSION AGAINST RACISM
AND INTOLERANCE (ECRI)
In
its fourth report on Turkey (CRI(2011)5), published on 8 February
2011, ECRI welcomed the fact that in order to discourage negative
stereotyping, connotations which might have been perceived as
discriminatory in the dictionary definition of the term “Gypsy”
had been removed. It further encouraged the Turkish authorities to
pursue and strengthen their efforts to combat negative stereotyping
of the Roma and to build a constructive dialogue with the Roma
community.
In
its General Policy Recommendation No. 10 on combating racism and
racial discrimination in and through school education, adopted on
15 December 2006, ECRI also recommended that member States
ensure that school education played a key role in the fight against
racism and racial discrimination in society by promoting critical
thinking among pupils and equipping them with the necessary skills to
become aware of and react to stereotypes or intolerant elements
contained in the material they used.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant alleged that the book “The Gypsies of Turkey”
and the dictionaries referred to in paragraphs 26-28 above contained
expressions and definitions which offended his Roma/Gypsy identity.
The
Government disputed this claim.
A. As to whether the applications should be examined
under Article 8 or under Article 14 read in conjunction
with Article 8 of the Convention
42. The
Grand Chamber observes that the Chamber examined the
applicant’s complaints under Article 14 read in conjunction
with Article 8 of the Convention. These provisions read as
follows:
Article 8
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] 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.”
The
Grand Chamber reiterates that the Court is the master of the
characterisation to be given in domestic law to the facts of the case
and is not bound by the characterisation given by the applicant or
the Government (see Scoppola v. Italy (no. 2) [GC], no.
10249/03, § 54, 17 September 2009). Discrimination for the
purposes of Article 14 of the Convention means treating
differently, without an objective and reasonable justification,
persons in relevantly similar situations. There will be no objective
and reasonable justification if the difference in treatment does not
pursue a “legitimate aim” or if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised (see, amongst many other authorities, D.H.
and Others v. the Czech Republic [GC], no. 57325/00, §
175, ECHR 2007 IV, and Burden v. the United Kingdom
[GC], no. 13378/05, § 60, ECHR 2008 ...).
The
Court observes that discrimination on account of, inter alia,
a person’s ethnic origin is a form of racial discrimination.
Racial discrimination is a particularly invidious kind of
discrimination and, in view of its perilous consequences, requires
from the authorities special vigilance and a vigorous reaction. It is
for this reason that the authorities must use all available means to
combat racism, thereby reinforcing democracy’s vision of a
society in which diversity is not perceived as a threat but as a
source of enrichment (see Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, § 145, ECHR 2005 VII, and
Timishev v. Russia, nos. 55762/00 and 55974/00, §
56, ECHR 2005 XII). The Court further notes that as a result of
their turbulent history and constant uprooting the Roma have become a
specific type of disadvantaged and vulnerable minority. As the Court
has noted in previous cases, they therefore require special
protection (see D.H. and Others, cited above, § 182).
The
Court observes that in the present case the applicant, who is of Roma
origin, argued that a book and two dictionaries
that had received Government funding included remarks and expressions
that reflected anti-Roma sentiment. He considered that these
statements constituted an attack on his Roma identity. However, the
Court observes that the case does not concern a difference in
treatment, and in particular ethnic discrimination, as the applicant
has not succeeded in producing prima
facie evidence that the impugned
publications had a discriminatory intent or effect. The case is
therefore not comparable to other applications previously lodged by
members of the Roma community (see, regarding education, D.H.
and Others, cited above, §§
175-210; regarding housing, Chapman v. the United
Kingdom [GC], no. 27238/95, § 73, ECHR 2001 I; and,
regarding elections, Sejdić and Finci v. Bosnia and
Herzegovina [GC], nos. 27996/06 and 34836/06, § 45, 22
December 2009). Accordingly, the main issue in the present case is
whether the impugned publications, which allegedly contained racial
insults, constituted interference with the applicant’s right to
respect for his private life and, if so, whether this interference
was compatible with the said right. The Court will therefore examine
the present case under Article 8 of the Convention only.
B. The Government’s preliminary objection
1. The parties’ submissions
(a) The Government
The
Government contested the applicant’s victim status in both
applications, arguing that they were actio popularis
applications. According to the Government, the applicant had failed
to show that he had been directly affected by the impugned remarks
and expressions.
(b) The applicant
The
applicant alleged that because of his Roma/Gypsy origins, the
debasing remarks and expressions contained in the book and
dictionaries had caused him pecuniary and non-pecuniary damage. He
therefore considered himself to have victim status under Article 34
of the Convention.
(c) The third party
The
Greek Helsinki Monitor stated that any member of an ethnic group
allegedly targeted by generally discriminatory expressions based on
race had the status of victim, as such expressions created prejudice
against every member of that group. They further stated that the
Court’s protection should be no less than that afforded under
the domestic system: where a person’s victim status had been
recognised domestically, it should not be refused by the Court.
2. The Chamber judgment
The
Chamber observed that although the applicant had not been directly
targeted in person in either the book or the dictionaries in
question, he had been able to initiate compensation proceedings and
to argue the merits of his case before the domestic courts under the
domestic legislation, namely Articles 24 and 25 of the Civil Code
(see paragraph 35 above). As a result, the Chamber considered
that the applicant had victim status under Article 34 of the
Convention.
3. The Court’s assessment
The
Court reiterates that in order to be able to lodge a petition by
virtue of Article 34 of the Convention, a person, non-governmental
organisation or group of individuals must be able to claim to be a
victim of a violation of the rights set forth in the Convention. To
claim to be a victim of such a violation, a person must be directly
affected by the impugned measure: the Convention does not, therefore,
envisage the bringing of an actio popularis for the
interpretation of the rights set out therein or permit individuals to
complain about a provision of national law simply because they
consider, without having been directly affected by it, that it may
contravene the Convention (see Burden, cited above, § 33,
and Tănase v. Moldova [GC], no. 7/08, § 104,
ECHR 2010 ...).
Consequently,
the existence of a victim who was personally affected by an alleged
violation of a Convention right is indispensible for putting the
protection mechanism of the Convention into motion, although this
criterion is not to be applied in a rigid and inflexible way (see
Bitenc v. Slovenia (dec.), no. 32963/02, 18 March 2008).
The question of whether the applicant can claim to be a victim of the
alleged violation of the Convention is relevant at all stages of the
proceedings under the Convention (see Burdov v. Russia,
no. 59498/00, § 30, ECHR 2002 III).
The
Court reiterates that it interprets the concept of “victim”
autonomously and irrespective of domestic concepts such as those
concerning an interest or capacity to act (see Sanles Sanles v.
Spain (dec.), no. 48335/99, ECHR 2000 XI), even though
the Court should have regard to the fact that an applicant was a
party to the domestic proceedings (see Micallef v. Malta [GC],
no. 17056/06, § 48, ECHR 2009 ...).
The
Court observes that in the present case the applicant, who is of Roma
origin, complained about remarks and expressions which allegedly
debased the Roma community. It is true that the applicant was not
personally targeted; he could, however, have felt offended by the
remarks concerning the ethnic group to which he belonged.
Furthermore, there was no dispute in the domestic proceedings
regarding the applicant’s standing before the court. Hence, the
merits of his case were examined at two levels of jurisdiction.
In
view of the foregoing and given the need to apply the criteria
governing victim status in a flexible manner, the Court accepts that
the applicant, although not directly targeted by the contested
passages, can be considered a victim of the facts complained of
within the meaning of Article 34 of the Convention. It therefore
rejects the Government’s preliminary objection that the
applicant lacked victim status.
C. The merits of the case
1. Application no. 4149/04
(a) The parties’ submissions
(i) The applicant
The
applicant alleged that certain passages of the book “The
Gypsies of Turkey” contained remarks and expressions which
debased the Roma community. In particular, he referred to the chapter
of the book which provided information about the lifestyle of the
Roma people living in certain cities in Turkey, and in particular
their alleged involvement in illegal activities (see paragraph 12
above). According to the applicant, the author’s overall
intention was not important, as these passages in themselves
constituted a clear insult to the Roma community. He also expressed
his dissatisfaction with the domestic court decisions dismissing his
compensation request.
(ii) The Government
The
Government stated that the book had been published by the Ministry of
Culture on the recommendation of the publications advisory board.
According to the report of the advisory board, the book in question
was a piece of comparative academic research which had been prepared
as a contribution to ethnic studies in Turkey. It gave information
about the origins of the Roma community, their language, traditions,
beliefs, festivals, cuisine, clothing, music and living conditions.
The Government stated that, following the applicant’s
objection, the book had been examined once again by a number of
university professors, who reported that it did not include any
insulting statements. Finally, the Government submitted that the
Ministry of Culture was working hard to promote Roma culture and
traditions.
(b) The Chamber judgment
The
Chamber held that although the passages and remarks cited by the
applicant, read on their own, appeared to be discriminatory and
insulting, when the book was examined as a whole it was not possible
to conclude that the author had acted in bad faith or had any
intention to insult the Roma community. The Chamber had particular
regard to the conclusion to the book, in which the author had made it
clear that “The Gypsies of Turkey” was an academic study
which conducted a comparative analysis and focused on the history and
socio-economic living conditions of the Roma people in Turkey. The
Chamber concluded that the author had referred to the biased
portrayal of the Roma in order to demonstrate the perception of the
Roma community by the public. As a result, the Chamber found no
violation of the applicant’s rights as protected by the
Convention.
(c) The Court’s assessment
(i) Applicability of Article 8 of the
Convention
The
Court reiterates that the notion of “private life” within
the meaning of Article 8 of the Convention is a broad term not
susceptible to exhaustive definition. The notion of personal autonomy
is an important principle underlying the interpretation of the
guarantees provided for by Article 8. It can therefore embrace
multiple aspects of the person’s physical and social identity.
The Court further reiterates that it has accepted in the past that an
individual’s ethnic identity must be regarded as another such
element (see S. and Marper v. the United Kingdom [GC],
nos. 30562/04 and 30566/04, § 66, 4 December 2008, and
Ciubotaru v. Moldova, no. 27138/04, § 49, 27
April 2010). In particular, any negative stereotyping of a group,
when it reaches a certain level, is capable of impacting on the
group’s sense of identity and the feelings of self-worth and
self-confidence of members of the group. It is in this sense that it
can be seen as affecting the private life of members of the group.
Furthermore,
while the essential object of Article 8 is to protect the individual
against arbitrary interference by the public authorities, it does not
merely compel the State to abstain from such interference: in
addition to this negative undertaking there may be positive
obligations inherent in the effective respect for private life. These
obligations may involve the adoption of measures designed to secure
respect for private life even in the sphere of the relations of
individuals between themselves (see Tavlı v. Turkey,
no. 11449/02, § 28, 9 November 2006, and Ciubotaru,
cited above, § 50).
Turning
to the circumstances of the present case, the Court notes that the
applicant, who is of Roma origin, felt offended by certain passages
of the book “The Gypsies of Turkey”, which focused on the
Roma community. He therefore initiated civil proceedings against the
author of the book and the Ministry of Culture (see paragraphs 19-25
above). As a result, what is at stake in the present case is a
publication allegedly affecting the identity of a group to which the
applicant belonged, and thus his private life. The Court further
notes that although “The Gypsies of Turkey” was published
by the Ministry of Culture (see paragraph 10 above), the latter
subsequently returned the copyright to the author of the book (see
paragraph 17 above). Moreover, the applicant did not lodge an appeal
against the decision of the Ankara Administrative Court dismissing
his administrative complaint against the Ministry of Culture (see
paragraph 25 above). He therefore did not pursue his case against the
State authorities for their involvement in the publication at issue.
Under
these circumstances, the Court is of the opinion that the main
question raised in the present application is not whether there was
direct interference by the domestic authorities with the private life
of the applicant, but rather whether the respondent Government
complied with their positive obligation under Article 8 to protect
the applicant’s private life from alleged interference by a
third party, namely the author of the book. In other words the Court
will seek to ascertain whether, in the light of Article 8 of the
Convention, the Turkish courts ought to have upheld the applicant’s
civil claim by awarding him a sum in respect of non-pecuniary damage
and banning the distribution of the book.
(ii) Compliance with Article 8 of the
Convention
(α) General principles
The
boundary between the State’s positive and negative obligations
under Article 8 does not lend itself to precise definition. The
applicable principles are, nonetheless, similar. In both contexts,
regard must be had to the fair balance that has to be struck between
the competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation (see, amongst many other authorities, Keegan v.
Ireland, 26 May 1994, § 49, Series A no. 290; Botta
v. Italy, 24 February 1998, § 33, Reports of
Judgments and Decisions 1998 I; and Gurgenidze v.
Georgia, no. 71678/01, § 38, 17 October 2006).
In
cases like the present one where the complaint is that rights
protected under Article 8 have been breached as a consequence of the
exercise by others of their right to freedom of expression, due
regard should be had, when applying Article 8, to the requirements of
Article 10 of the Convention (see, for instance and mutatis
mutandis, Von Hannover v. Germany, no. 59320/00, §
58, ECHR 2004 VI). Thus, in such cases the Court will need to
balance the applicant’s right to “respect for his private
life” against the public interest in protecting freedom of
expression, bearing in mind that no hierarchical relationship exists
between the rights guaranteed by the two Articles (see Timciuc v.
Romania (dec.) no. 28999/03, § 144, 12 October
2010).
In
this context the Court reiterates that freedom of expression
constitutes one of the essential foundations of a democratic society.
Subject to paragraph 2 of Article 10 of the Convention, it is
applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no democratic society (see,
amongst many authorities, Handyside v. the United Kingdom,
7 December 1976, § 49, Series A no. 24, and Reinboth and
Others v. Finland, no. 30865/08,
§ 74, 25 January 2011). This freedom is subject to the
exceptions set out in Article 10 § 2 which must, however, be
strictly construed. The need for any restrictions must therefore be
established convincingly (see, for example, Lingens v. Austria,
8 July 1986, § 41, Series A no. 103, and Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR
1999 VIII).
Under
Article 10 of the Convention, the Contracting States have a certain
margin of appreciation in assessing whether an interference with the
right to freedom of expression was “necessary in a democratic
society”. However, this margin goes hand in hand with a
European supervision, embracing both the legislation and the
decisions applying it, even those given by an independent court (see
Tammer v. Estonia, no. 41205/98, § 60, ECHR
2001 I; Peck v. the United Kingdom, no. 44647/98,
§ 77, ECHR 2003 I; and Karhuvaara and Iltalehti v.
Finland, no. 53678/00, § 38, ECHR 2004 X). The Court’s
task in exercising its supervision is not to take the place of the
national authorities but rather to review, in the light of the case
as a whole, the decisions that they have taken pursuant to their
margin of appreciation (see Petrenco v. Moldova, no. 20928/05,
§ 54, 30 March 2010; Polanco Torres and Movilla Polanco
v. Spain, no. 34147/06, § 41, 21 September
2010; and Petrov v. Bulgaria (dec.), no. 27103/04,
2 November 2010).
In
similar cases the Court therefore attached significant weight to the
fact that the domestic authorities had identified the existence of
conflicting rights and the need to ensure a fair balance between them
(see, for instance and mutatis mutandis, Tammer, cited
above, § 69; White v. Sweden, no. 42435/02, §
27, 19 September 2006; Standard Verlags GmbH v. Austria (no. 2),
no. 21277/05 § 52, 4 June 2009; Lappalainen v. Finland
(dec.), no. 22175/06, 20 January 2009; and Papaianopol
v. Romania, no. 17590/02, § 30, 16 March 2010).
If
the balance struck by the national judicial authorities is
unsatisfactory, in particular because the importance or the scope of
one of the fundamental rights at stake was not duly considered, the
margin of appreciation accorded to the decisions of the national
courts will be a narrow one. However, if the assessment was made in
the light of the principles resulting from its well established
case-law, the Court would require strong reasons to substitute its
own view for that of the domestic courts, which consequently will
enjoy a wider margin of appreciation (see MGN Limited v. the
United Kingdom, no. 39401/04, §§ 150 and 155, 18
January 2011, and Von Hannover v. Germany (no
2) [GC], nos. 40660/08 and 60641/08, § 107, 7 February
2012).
All
of this presupposes that an effective legal system was in place and
operating for the protection of the rights falling within the notion
of “private life”, and was available to the applicant
(see Karakó v. Hungary, no. 39311/05, §
19, 28 April 2009). This must also be examined by the Court.
(β) Application of these principles to
the present case
In
the present case the domestic courts were called upon to strike a
fair balance between the applicant’s rights under Article 8 of
the Convention as a member of the Roma community and the freedom of
the author of the book at issue to carry out academic/scientific
research on a specific ethnic group and publish his findings. The
applicant claimed that the book, and in particular the chapter
providing information about the living conditions of Roma in
different cities of Turkey, constituted an insult towards the Roma
community. In dismissing this claim at two levels of jurisdiction the
Turkish courts relied, inter alia, on a report prepared by
seven university professors which found that the book in dispute was
an academic study based on scientific research (see paragraph 25
above). They considered that the remarks and expressions were not
insulting, were of a general nature, did not concern all Roma and did
not constitute an attack on the applicant’s identity (see
paragraphs 21 and 23 above). Moreover, the Ankara Civil Court of
General Jurisdiction found that the book examined the social
structure of the Turkish Roma/Gypsy community and was based on
scientific data (see paragraph 21 above).
In
the Court’s opinion, these conclusions cannot be considered to
be unreasonable or based on a misrepresentation of the relevant
facts. In this connection it is important to note that while the
author pointed to certain illegal activities on the part of some
members of the Roma community living in particular areas, nowhere in
the book did he make negative remarks about the Roma population in
general or claim that all members of the Roma community were engaged
in illegal activities. Furthermore, in different parts of the book,
namely in the preface, introduction and conclusion, the author
emphasised in clear terms that his intention was to shed light on the
unknown world of the Roma community in Turkey, who had been
ostracised and targeted by vilifying remarks based mainly on
prejudice (see paragraphs 10, 11 and 13 above). In view of the
foregoing, and in the absence of any evidence justifying the
conclusion that the author’s statements were insincere, it was
not unreasonable for the domestic courts to hold that he had put
effort into his work and had not been driven by racist intentions
(see, mutatis mutandis, Jersild v. Denmark,
23 September 1994, § 36, Series A no. 298).
Moreover,
despite the somewhat laconic manner in which some of them were
expressed, the reasons put forward by the domestic courts in support
of their conclusions were in keeping with the principles set forth in
the Court’s case-law. In particular, the Turkish courts
attached importance to the fact that the book had been written by an
academic and was therefore to be considered as an academic work. In
recent judgments, the Court has also stressed the importance of such
works (see Sorguç v. Turkey, no. 17089/03,
§§ 21-35, ECHR 2009 ... (extracts), and Sapan
v. Turkey, no. 44102/04, § 34, 8 June 2010). It is
therefore consistent with the Court’s case-law to submit to
careful scrutiny any restrictions on the freedom of academics to
carry out research and to publish their findings.
It
is also in line with the Court’s approach to consider the
impugned passages not in isolation but in the context of the book as
a whole and to take into account the method of research used by the
author of the publication. In this connection the Court observes that
the latter explained that he had collected information from members
of the Roma community, local authorities and the police. He also
stated that he had lived with the Roma community to observe their
lifestyle according to scientific observation principles (see
paragraph 11 above).
Moreover,
it is to be noted that an effective legal system was operating for
the protection of the rights falling within the notion of “private
life” and was available to the applicant in the present case
(see paragraph 68 above). The applicant was able to bring his
case before two levels of jurisdiction and obtained reasoned
decisions dealing with his claim. Furthermore, when he lodged a
complaint with the Ministry of Culture, as a precautionary measure
the Ministry ordered the withdrawal of the remaining 299 copies of
the book, and the copyright was returned to the author at the
latter’s request (see paragraphs 15 and 17 above).
In
the light of the above, the Court is satisfied that in balancing the
conflicting fundamental rights under Articles 8 and 10 of the
Convention, the Turkish courts made an assessment based on the
principles resulting from the Court’s well-established
case-law.
The
Court would nonetheless reiterate that the vulnerable position of
Roma/Gypsies means that special consideration should be given to
their needs and their different lifestyle, both in the relevant
regulatory framework and in reaching decisions in particular cases
(see Chapman, cited above, § 96, and D.H. and
Others, cited above, § 181). The Court also agrees with the
conclusions of ECRI (see paragraph 38 above) that the Government
should pursue their efforts to combat negative stereotyping of the
Roma.
It
follows from the considerations set forth above that in the present
case the Turkish authorities did not overstep their margin of
appreciation and did not disregard their positive obligation to
secure to the applicant effective respect for his private life.
Consequently,
there has been no violation of Article 8 in respect of application
no. 4149/04.
2. Application no. 41029/04
(a) The parties’ submissions
(i) The applicant
The
applicant alleged that the expressions contained in the two impugned
dictionaries printed by the Turkish Language Association were
insulting towards the Roma/Gypsy community. In particular, he
referred to the term “becoming a Gypsy” which was defined
as “displaying miserly behaviour”, and submitted that
such insulting definitions should be removed from the dictionaries.
(ii) The Government
The
Government stated that the words and expressions contained in the
dictionaries were based on historical and sociological facts and that
there was no intention to debase the Roma community. They further
informed the Court that the Ministry of Culture had made a financial
contribution of 2,700 euros in total to the publication of the
dictionaries in 1991 and 1998. However, the Government stressed that
the dictionary for pupils was not a school textbook and that it was
not distributed to schools or recommended by the Ministry of
Education as part of the school curriculum. Finally, they pointed out
that these dictionaries had not been reprinted and were actually out
of print.
(b) The Chamber judgment
The
Chamber had regard in particular to the fact that the definitions
provided in the dictionaries had been prefaced with the comment that
their use was “metaphorical”. It therefore found that
these expressions could not be considered as harming the applicant’s
ethnic identity. As a result, the Chamber found no violation of
Article 8 of the Convention.
(c) The Court’s assessment
The
Court notes at the outset that the applicant considered himself to be
the victim of negative stereotyping on account of some of the entries
contained in the impugned dictionaries. Article 8 of the Convention
is therefore applicable, for the reasons set forth in paragraph 60
above. The Court further observes that, although the publication of
the dictionaries at issue was part financed by the Ministry of
Culture, the applicant merely brought a civil action against the
Language Association, a non-governmental organisation, and did not
bring any administrative proceedings against the Ministry in the
domestic courts (see paragraphs 31 34 above). Therefore, as
with application no. 4149/04 (see paragraphs 60 and 61
above), the Court will examine, in the light of the general
principles set forth in paragraphs 62-68 above, whether the
Government complied with their positive obligation under Article 8
to protect the applicant’s private life from alleged
interference by a third party, namely the Language Association.
In
rejecting the applicant’s claim, the Ankara Civil Court
observed that the definitions and expressions in the dictionaries
were based on historical and sociological reality and that there had
been no intention to humiliate or debase the Roma community. It
further noted that there were similar expressions in Turkish
concerning other ethnic groups, which appeared in dictionaries and
encyclopaedias (see paragraph 33 above).
Thus,
the domestic court examined the impugned entries in order to
ascertain whether they had unlawfully interfered with the applicant’s
rights under Article 8 of the Convention. In doing so, it applied the
principles laid down in the Court’s case-law (see paragraph 66
above).
In
this connection the Court observes that a dictionary is a source of
information which lists the words of a language and gives their
various meanings, the basic one being simply descriptive or literal,
while others may be figurative, allegorical or metaphorical. It
reflects the language used by society. In both dictionaries the
literal definition of the word “çingene”
(“Gypsy”) was given on page 279. It is therefore clear
that these dictionaries were substantial in volume and were meant to
cover the entire Turkish language. The Court also notes the first
definition of the word “Gypsy” given by the said
dictionaries, which reads: “An
ethnic group or person belonging to an ethnic group originating from
India, whose members lead a nomadic way of life and are widely
dispersed in the world”. As a second meaning, it
was stated that, in the metaphorical sense, the word “Gypsy”
also meant “miserly” (see paragraph 28 above). On the
same page, the dictionaries gave further definitions of certain
expressions regarding the Gypsies, such as “Gypsy money”
and “Gypsy pink”. The Court notes in this connection
that, as explained by the Ankara Civil Court, these expressions are
part of spoken Turkish.
It
is true that, although they had the same content, the dictionaries
had different target groups, as the second dictionary’s title
was “The Turkish Dictionary for Pupils”. It is clear that
in a dictionary aimed at pupils, more diligence is required when
giving the definitions of expressions which are part of daily
language but which might be construed as humiliating or insulting. In
the Court’s view, it would have been preferable to label such
expressions as “pejorative” or “insulting”,
rather than merely stating that they were metaphorical. Such a
precaution would also be in line with ECRI’s General Policy
Recommendation No. 10, which stipulates that States should promote
critical thinking among pupils and equip them with the necessary
skills to become aware of and react to stereotypes or intolerant
elements contained in the material they use (see paragraph 39 above).
However,
this element alone is insufficient for the Court to substitute its
own view for that of the domestic courts, having regard also to the
fact that the impugned dictionary was not a school textbook and that
it was not distributed to schools or recommended by the Ministry of
Education as part of the school curriculum (see paragraph 79 above).
Finally,
the Court observes that the applicant’s case against the
Language Association was examined at two levels of jurisdiction in
the domestic courts (see paragraphs 31-34 above). Although ultimately
his case was dismissed, the Court is satisfied that the applicant was
provided with an effective means of redress, as required by Article 8
of the Convention.
In
view of the foregoing, the Court considers that the domestic
authorities did not overstep their margin of appreciation and did not
disregard their positive obligation to secure to the applicant
effective respect for his private life.
Consequently,
there has been no violation of Article 8 of the Convention in respect
of application no. 41029/04.
FOR THESE REASONS, THE COURT
Dismisses, unanimously, the Government’s
preliminary objection and holds that the applicant may claim
to be a “victim” for the purposes of Article 34 of the
Convention;
Holds, by sixteen votes to one, that there has
been no violation of Article 8 of the Convention in respect of
application no. 4149/04;
Holds, by sixteen votes to one, that there has
been no violation of Article 8 of the Convention in respect of
application no. 41029/04.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 15 March 2012.
Michael O’Boyle
Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Gyulumyan is annexed to
this judgment.
N.B.
M.O’B.
DISSENTING OPINION OF JUDGE GYULUMYAN
The
majority has found that the Turkish authorities did not overstep
their margin of appreciation and did not disregard their positive
obligation to secure to the applicant effective respect for his
private life. I disagree.
In
the present case the applicant submitted that the remarks in the book
entitled “The Gypsies of Turkey” and the expressions
contained in the two dictionaries in question reflected clear
anti-Roma sentiment and that the refusal of the domestic courts to
award compensation and to ban the distribution of the books
demonstrated an obvious bias against Roma. He relied on Article 14
read in conjunction with Article 8 of the Convention. The Court
examined the case only under Article 8 of the Convention.
It
seems to me that if the facts complained of are examined under
Article 14 of the Convention the conclusion must be that there has
been a violation of Article 14 of the Convention in conjunction with
Article 8.
Contrary
to what is stated in paragraph 45 of the judgment, I am not persuaded
“that the case does not concern a difference in treatment, and
in particular ethnic discrimination”. The majority reached this
conclusion only on the basis that “the applicant has not
succeeded in producing prima facie evidence that the impugned
publications had a discriminatory intent or effect”. In that
respect I agree with the partly dissenting opinion of Judge Giovanni
Bonello in Anguelova v. Bulgaria (no. 38361/97, ECHR 2002 IV),
in which he stated:
“Alternatively [the Court] should, in my view,
hold that when a member of a disadvantaged minority group suffers
harm in an environment where racial tensions are high and impunity of
State offenders epidemic, the burden to prove that the event was not
ethnically induced shifts to the Government”.
The
Court did not take into consideration the environment in which the
three publications were issued and was satisfied by the assessments
made by the Turkish courts. These courts usually take a very
different approach when dealing with cases concerning the denigration
of Turkishness (Article 301 of the Turkish Criminal Code).
In
the case Altuğ Taner Akçam v. Turkey (no.
27520/07, 25 October 2011), the Government
submitted statistical information according to which, in 744 cases
between 2003 and 2007, criminal proceedings instituted under Article
301 (Article 159/1 of the former Criminal Code) for insulting
Turkishness had resulted in convictions.
In
the criminal proceedings against Hrant Dink (see Dink v. Turkey,
nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 28,
ECHR 2010 ... (extracts)), the Turkish Court of Cassation, sitting as
a full criminal court, interpreted the term “Turkishness “as
follows (Yargıtay Ceza Genel Kurulu, E.2006/9-169, K.2006/184,
judgment of 11 July 2006):
“... [Turkishness is constituted by the national
and moral values as a whole, that is, human, religious and historical
values as well as the national language and national feelings and
traditions ...”.
When
it came to the national feelings and traditions of Roma people the
Turkish court took a radically different approach, which in itself
suggests a difference in treatment based on ethnicity.
In
the book dealt with in application no. 4149/04, the Roma are
described in strong language “as a marginal group which is
excluded and despised everywhere”. Among the Roma occupations
listed, reference is made to some Roma “who make a living from
pick-pocketing, stealing and selling narcotics”. Under one
heading, the book states that “[t]he Gypsies of the central
district of Ankara earn their living from stealing, begging ...
zercilik (robbing jewellery stores) ...”. In another
paragraph, “sorcery” is listed as one of the “most
striking characteristics” of the Roma group concerned.
In
the dictionaries which are the subject of application no. 41029/04,
several terms beginning with the word “Gypsy” are defined
in language that can only be regarded as derogatory and inflammatory,
such as “‘Gypsy wedding’: a crowded and noisy
meeting”, “‘Gypsy fight’: a verbal fight in
which vulgar language is used” and “‘Becoming a
Gypsy’: displaying miserly behaviour”.
These
and several other expressions in the three books clearly disclose
violations of Roma dignity, intolerance and a lack of respect for a
culture that is different from the majority of society. Furthermore,
the statements perpetuate stereotypes of and prejudices against the
Roma and incite discrimination against a minority which is
undoubtedly among the most vulnerable in Europe today, if not the
most vulnerable. It has to be noted that the books were published
with support from the Turkish authorities. The fact that the Ministry
of Culture returned the copyright of one of the books to the author
did not amount to the withdrawal or denunciation of the official
sponsorship.
The
fact that the book had been written by an academic and was therefore
to be considered as an academic work is neither a justification nor
an excuse for insulting ethnic dignity. Article 2 of the Declaration
on Race and Racial Prejudice, adopted by the General Conference of
the United Nations Educational Scientific and Cultural Organization
(UNESCO) on 27 November 1978, stated:
“Any theory which involves the claim that racial
or ethnic groups are inherently superior or inferior, ... or which
bases value judgments on racial differentiation, has no scientific
foundation and is contrary to the moral and ethical principles of
humanity.”
The
Court quotes a country report and a policy recommendation by ECRI
(paragraphs 38, 39 and 75) in which States are encouraged to combat
negative stereotyping and to ensure that school education plays a key
role in the fight against racism and racial discrimination. The
Turkish Dictionary for Pupils was intended for children, and the fact
that it was decided from the outset not to distribute it to schools
or recommend it as part of the school curriculum (paragraph 86) is
not important from my perspective.
Apart
from ECRI, the Court omits to mention that several institutions of
the Council of Europe have taken targeted action aimed at furthering
Roma rights. The Council of Europe High Level Meeting on Roma in
October 2010 adopted the “Strasbourg Declaration on Roma”.
Its Preamble condemns unequivocally “racism, stigmatisation and
hate speech directed against Roma, particularly in public and
political discourse”. Under the heading “Fighting
stigmatisation and hate speech”, the Declaration recommends
that Member States:
“Strengthen efforts in combating hate speech.
Encourage the media to deal responsibly and fairly with the issue of
Roma and refrain from negative stereotyping or stigmatisation.”
A
number of other human rights institutions and bodies of both global
and regional organisations have specifically addressed discrimination
faced by Roma minorities.
The
Committee on the Elimination of Racial Discrimination (CERD) adopted
General Recommendation XXVII on “Discrimination against Roma”
in 2000. The Committee (in paragraph 9) called on States:
“To endeavour, by encouraging a genuine dialogue,
consultations or other appropriate means, to improve the relations
between Roma communities and non-Roma communities, in particular at
local levels, with a view to promoting tolerance and overcoming
prejudices and negative stereotypes on both sides, to promoting
efforts for adjustment and adaptation and to avoiding discrimination
and ensuring that all persons fully enjoy their human rights and
freedoms.”
Drawing
on this overwhelming input from global and regional intergovernmental
organisations and bearing in mind the vulnerability of the Roma
minority in Turkey and beyond, I respectfully disagree with the
Court’s conclusions. In my opinion, Turkey stands in violation
of at least Article 8 of the Convention for supporting and not
prohibiting the distribution of the books in question. There is no
conflict with Article 10 inasmuch as the latter, in paragraph 2,
refers to duties and responsibilities associated with freedom of
expression and to the protection of the reputation and rights of
others. It is of crucial importance that freedom of expression not
only confers the right to hold opinions, but also imposes duties and
responsibilities. It cannot therefore be interpreted as allowing the
promotion or dissemination of the ideas of ethnic hatred and the
superiority of one nation vis-à-vis other ethnic
groups.
The
continued stereotyping of the Roma must come to an end. It would be
highly unfortunate for this Court to be seen to condone incitement to
discrimination of the kind contained in the books in question.
