Case Watch: Fighting Negative Stereotyping as a Positive State Obligation

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world

The right to freedom of expression (stipulated by article 10 of the European Convention on Human Rights) has trumped the right to respect for private life (article 8) in recent decisions by the European Court of Human Rights. After the von Hannover v. Germany (no. 2) and Axel Springer v. Germany rulings in February, the decision in Aksu v. Turkey of March 15 added yet another Strasbourg decision to the list of article 10 victories.

But at the same time, this case should not be seen simply as a defeat for the rights of minority groups to be protected from derogatory stereotypes. The court also asserted that the state has a positive obligation to protect members of ethnic minority groups against negative racial or ethnic stereotyping, which it acknowledged as a human rights violation—albeit one which must be balanced against the freedom of expression.

Aksu v. Turkey revolved around the applications of Mr. Aksu, a Turkish national of Roma origins, who claimed a breach of the convention due to what he considered as degrading anti-Roma language in three state-funded publications. One of these works is a book entitled “The Gypsies of Turkey” that was written by an associate professor and was approved by a publications advisory board before publication. The other two pieces are two dictionaries, “Turkish Dictionary for Pupils” and “Turkish Dictionary,” written by the Language Association, a non-governmental organization. The applicant claimed that some of the language in these publications was offensive to his Roma/Gypsy identity, and therefore, alleged a violation of article 14 (discrimination), in conjunction with article 8 (respect for private life) of the convention.

The court first looked at whether Mr. Aksu himself could claim any violations under these circumstances, and if so which ones. In term of his status as a victim, despite the applicant himself not having been personally targeted by the language of the publications, the court accepted that he still “felt offended by the remarks concerning the ethnic group to which he belonged” (para. 53). This and the fact that the domestic courts granted the applicant standing without any dispute induced the court to show flexibility and accept the applicant’s status as a victim under the convention (para. 54).

However, regarding his article 14 claim on ethnic discrimination, the court found that Mr. Aksu was not able to provide “prima facie evidence that the impugned publications had a discriminatory intent or effect,” and thus, proceeded to rule that the main issue in the case instead concerned the applicant’s right to respect for his private life (para. 45). As a result, the court only considered whether there was an article 8 violation, dropping the article 14 claim—a decision criticized both by the dissent and some legal scholars.

After reformulating the application as an article 8 claim, the court reiterated that a person’s ethnic identity is an important element of a “person’s physical and social identity” protected under the above article (para. 58). Therefore, the court maintained that “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” (para. 58). In this regard, the court underlined that the state has not only negative but also positive obligations to protect individuals’ private life. In light of the above, it held that the main question in the case was whether the Turkish government complied with its “positive obligation under article 8 to protect the applicant’s private life from alleged interference by a third party” (para. 61). The court, consequently, engaged in a fair balance test between article 8 and article 10.

As far as the book on “The Gypsies of Turkey” was concerned, the court found no article 8 violation on the following grounds:

1. The author clearly indicated that his intention with the book was to “shed light on the unknown world of the Roma community in Turkey, who had been ostracized and targeted by vilifying remarks based mainly on prejudice” (para. 70).
2. The piece was written by an associate professor and was therefore an “academic work,” and thus, the court felt obligated “to submit to careful scrutiny any restrictions on the freedom of academic to carry out research and to publish their findings” (para. 71).
3. The book was to be viewed as a whole and the method of research it was based on appeared to prove the objectivity of the work (para. 72).
4. The applicant had had access to an effective legal system in Turkey regarding his claim and had been able to have his case adjudicated domestically (para. 73).

Looking at the disputed entries in the dictionaries, the court held that these expressions were “part of spoken Turkish,” and as a dictionary “reflects the language used by society,” their inclusion was vindicated, especially since they were labeled as “metaphorical” (para. 84). Even though the court believed that the editors should have used the terms “pejorative” or “insulting” instead of labeling these expressions as merely “metaphorical,” this preference in itself was deemed insufficient to override the domestic courts’ rulings (paras. 85-86). In light of this and the fact that these impugned dictionaries were not widely used in schools, the European Court ruled that the domestic authorities remained within their margin of appreciation and complied with their positive obligations under article 8 (para. 88). As a result, no article 8 violation was found in the case of the dictionaries either.

Although the court decided against the applicant, it emphasized the importance of the recognition of the vulnerable status of the Roma both in the legislative and judicial frameworks and urged the government to combat negative stereotyping (para. 75). That said, the judgment was not unanimous—one judge dissented, arguing that a different outcome would have been reached if the court had considered the case under article 14 as well. The dissent argued the court should have taken into consideration “the vulnerability of the Roma minority in Turkey and beyond” (para. 10) and it contrasted the Turkish domestic courts’ assessment of Mr. Aksu’s claims with the “very different approach” these courts apply to claims on the disparagement of Turkishness (para. 2).

Irrespective of the failure of the majority to address this issue, Aksu v. Turkey is remarkable in the sense that even though it struck the balance in favor of freedom of expression, and thus, against respect for private life, it managed to expand the court’s article 8 jurisprudence as well.