Aksu v. Turkey [GC]

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 150

March 2012

Aksu v. Turkey [GC] - 4149/04 and 41029/04

Judgment 15.3.2012 [GC]

Article 8

Article 8-1

Respect for private life

Publications allegedly insulting to the Roma community: no violation

Facts – In 2000 the Ministry of Culture published a book entitled The Gypsies of Turkey that had been written by an associate professor. The applicant protested, claiming that the book contained remarks and expressions that humiliated and debased Gypsies, and subsequently brought an action in damages against the Ministry and the author of the book. The first-instance court dismissed the claim after finding that the book was the result of academic research, was based on scientific data and examined social structures of Gypsies in Turkey and that the impugned expressions did not insult the applicant. That judgment was upheld on appeal.

Meanwhile, the applicant had also brought civil proceedings against a non-governmental association which, with the aid of finance from the Ministry of Culture, had published two dictionaries entitled Turkish Dictionary for Pupils and Turkish Dictionary that the applicant alleged contained certain entries that were insulting to and discriminatory against Roma. The domestic courts dismissed that claim too, after finding that the definitions and expressions in the dictionary were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. They also noted that other similar expressions in the Turkish language concerning other ethnic groups could also be found in dictionaries and encyclopaedias.

In a judgment of 27 July 2010 (see Information Note no. 132), a Chamber of the Court held by four votes to three that there had been no violation of Article 14 of the Convention taken in conjunction with Article 8.

Law – Article 8

(a) Applicability – Despite the fact that the Chamber had examined the case under Article 14 taken in conjunction with Article 8, the Grand Chamber held that the case did not concern a difference in treatment or ethnic discrimination, since the applicant had failed to produce prima facie evidence that the impugned publications had a discriminatory intent or effect. The case was therefore not comparable to other applications previously lodged by members of the Roma community. The main issue to be examined was accordingly whether the impugned publications disproportionately interfered with the applicant’s right to respect for his private life. The case would therefore be examined under Article 8 only.

(b) Admissibility (victim status) – The Grand Chamber accepted that, even though the applicant was not personally targeted by the impugned remarks and expressions, he could have felt offended by the remarks concerning the ethnic group to which he belonged. In view of that conclusion, as well as the fact that no dispute concerning the applicant’s standing had ever arisen in the domestic proceedings, the applicant could claim to be a victim of the facts complained of within the meaning of Article 34 of the Convention.

Conclusion: preliminary objection dismissed (unanimously).

(i) Application concerning the book: The main issue in the applicant’s case was to determine whether the respondent Government had complied with their positive obligation to protect the applicant’s private life from alleged interference by the author of the book. In cases like the present one, where the complaint was that rights protected under Article 8 had been breached as a consequence of the exercise by others of their right to freedom of expression, the Court needed to balance the applicant’s Article 8 rights against the public interest in protecting freedom of expression. In dismissing the applicant’s claim at two levels of jurisdiction, the Turkish courts had relied on a report prepared by seven university professors which characterised the book as an academic study based on scientific research and considered that the remarks and expressions therein had been of a general nature, did not concern all Roma and did not constitute an attack on the applicant’s identity. These conclusions were not unreasonable or based on a misrepresentation of relevant facts. Thus, for instance, while the author had pointed to certain illegal activities on the part of some Roma living in particular areas, nowhere in the book had he made negative remarks about the Roma in general or claimed that all Roma engaged in illegal activities. Furthermore, in the preface, introduction and conclusion of the book the author had emphasised in clear terms that his intention had been to shed light on the unknown world of the Roma community, which had been ostracised and targeted by mainly prejudicial remarks. In the absence of any evidence justifying the conclusion that the author’s statements had been insincere, it was not unreasonable for the domestic courts to have held that he had put effort into his work and had not been driven by racist intentions. The applicant had been able to bring his case and had obtained reasoned decisions dealing with his claim. In balancing the conflicting fundamental rights under Articles 8 and 10 of the Convention, the Turkish courts had made an assessment based on the principles from the Court’s well-established case-law and had not overstepped their margin of appreciation or disregarded their positive obligation to secure the applicant effective respect for his private life.

Conclusion: no violation (sixteen votes to one).

(ii) Application concerning the dictionaries: Considering a dictionary as a source of information listing words of a language and giving them various meanings – the basic descriptive one, but also figurative, allegorical or metaphorical ones – its main purpose was to reflect the language used by society. The impugned dictionaries were substantial in volume and meant to cover the entire Turkish language. They contained an objective definition of the word “Gypsy”, but also metaphorical meanings of the word as well as certain other expressions used in spoken Turkish such as “Gypsy money” and “Gypsy pink”. It would have been preferable to label the expressions that formed the daily language as “pejorative” or “insulting” – in particular in the dictionary aimed at pupils – as such a precaution would have also been in line with ECRI General Policy Recommendation No. 10* which stipulated the States’ obligation to promote critical thinking among pupils. However, this element alone was insufficient for the Court to substitute its own view for that of the domestic courts, having regard to the fact that the impugned dictionary was not a school textbook part of the official school curriculum. In conclusion, the domestic authorities had not overstepped their margin of appreciation or disregarded their positive obligation to secure the applicant effective respect for his private life.

Conclusion: no violation (sixteen votes to one).

* ECRI General Policy Recommendation no. 10 on combating racism and racial discrimination in and through school education adopted on 15 December 2006 by the European Commission against Racism and Intolerance (ECRI).

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