Voorhoof, Dirk

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Ghent University Academic Bibliography

IRIS 2010-10/1European Court of Human Rights: Aksu v. TurkeyIn 2000 the Turkish Ministry of Culture published a book entitled “The Gypsies of Turkey”, written by an associateprofessor. A few months later Mr. Mustafa Aksu, who is of Roma/Gypsy origin, filed a petition with the Ministryof Culture on behalf of the Turkish Gypsy associations. In his petition, he stated that in twenty-four pages of thebook Gypsies were presented as being engaged in illegitimate activities, living as “thieves, pickpockets, swindlers,robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and being polygamist and aggressive.Gypsy women were presented as being unfaithful to their husbands and several other expressions were humiliatingand debasing to Gypsies. Claiming that the expressions constituted criminal offences, Mr. Aksu requested thatthe sale of the book be stopped and all copies seized. During the same period Mr. Aksu also took an actionin regard to a dictionary entitled “Turkish Dictionary for Pupils” which was financed by the Ministry of Culture.According to Mr. Aksu, certain entries in the dictionary were insulting to, and discriminatory against, Gypsies. TheMinistry of Culture and later the judicial authorities in Ankara however rejected these complaints and Mr. Aksulodged two applications with the European Court of Human Rights. He submitted that the remarks in the bookand the expressions in the dictionary reflected clear anti-Roma sentiment, that he had been discriminated againston account of his ethnic identity and that his dignity had been harmed because of the numerous passages in thebook which used discriminatory and insulting language. He argued that that the refusal of the domestic courtsto award compensation demonstrated an obvious bias against the Roma and he therefore invoked Articles 6 (fairtrial) and 14 (non-discrimination) of the Convention. The Court considered, however, that it was more appropriateto deal with the complaints under Article 14 of the Convention in conjunction with Article 8 (right of privacy) of theConvention.In its judgment of 27 July 2010 the Court began by referring to the vulnerable position of Roma/Gypsies, the specialneeds of minorities and the obligation of the European states to protect their security, identity and lifestyle, notonly for the purpose of safeguarding the interests of the minorities themselves, but also to preserve a culturaldiversity of value to the whole community. The Court also emphasised that racial discrimination requires thatthe authorities exert special vigilance and a vigorous reaction. It is for this reason that the authorities must useall available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity isnot perceived as a threat. Regarding the book, the Court accepted that the passages and remarks cited by Mr.Aksu, when read on their own, appear to be discriminatory or insulting. However, when the book is examined asa whole it is not possible to conclude that the author acted with bad faith or had any intention of insulting theRoma community. The conclusion to the book also clarified that it was an academic study that had conducteda comparative analysis and focused on the history and socio-economic living conditions of the Roma people inTurkey. The passages referred to by Mr. Aksu were not the author’s own comments, but examples of the perceptionof Roma people in Turkish society, while the author sought to correct such prejudices and make it clear that theRoma people should be respected. Bearing these considerations in mind and stressing its subsidiary role, whichleaves a broad margin of appreciation to the national authorities, the Court was not persuaded that the author ofthe book had insulted the applicant’s integrity or that the domestic authorities had failed to protect the applicant’srights. Regarding the dictionary, the Court observed that the definitions provided therein were prefaced with thecomment that the terms were of a metaphorical nature. Therefore it found no reason to depart from the domesticcourts’ findings that Mr. Aksu’s integrity was not harmed and that he had not been subjected to discriminatorytreatment because of the expressions described in the dictionary. The Court concluded that in the present casesit cannot be said that Mr. Aksu was discriminated against on account of his ethnic identity as a Roma or that therewas a failure on the part of the authorities to take the necessary measures to secure respect for the applicant’sprivate life.Three dissenting judges, including the president of the second section of the Court, expressed their concern aboutthe approach of the majority, as various passages of the book convey a series of highly discriminatory prejudicesand stereotypes that should have given rise to serious explanation by the author and are more forceful in tonethan the work’s concluding comments. The dissenting judges also found that the dictionary contained seriouslydiscriminatory descriptions and that in a publication financed by the Ministry of Culture and intended for pupils,the Turkish authorities had an obligation to take all measures to ensure respect for Roma identity and to avoidany stigmatisation. They also referred to data and reports collected by the European Union’s Fundamental RightsAgency (FRA) showing that more vigilance is needed towards Roma. These arguments and references howevercould not persuade the (slim) majority of the Court, which accepted that the publication of the book and thedictionary were not to be considered as violating the rights of Mr. Aksu under Articles 14 and 8 of the Convention.• Judgment by the European Court of Human Rights (Second Section), case of Aksu v. Turkey, No. 4149/04 and 41029/04 of 27 July 2010IRIS 1http://merlin.obs.coe.int/redirect.php?id=12723ENDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Case of Aksu v. Turkey

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European Court of Human Rights: Case of Aksu v. Turkey

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