EHRM, 27-07-2010, nr. 4149/04, nr. 41029/04

In 2000 the Ministry of Culture published a book entitled ‘The Gypsies of Turkey’, written by Associate Professor Ali Rafet Özkan.

On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Gypsy associations. In his petition, he stated that in twenty-four pages of the book, the author had stated that Gypsies were engaged in illegitimate activities, lived as ‘thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers’ and were polygamist and aggressive. Furthermore, Gypsy women were presented as being unfaithful to their husbands. The applicant also submitted that the book contained several other expressions that humiliated and debased Gypsies. Claiming that the expressions constituted criminal offences, he requested that the sale of the book be stopped and all copies seized.

On the same day, the head of the publication unit at the Ministry of Culture ordered that all copies of the book be returned to the publication unit as there were corrections to be made.

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 publication 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 scientific research and that the expressions in the book did not contain any insults or similar expressions. The applicant was also informed that the author of the book would not permit any amendments to the text and that, in accordance with the author's request, the Ministry had transferred the 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 and repeated his initial request. He received no reply.

Subsequently, on 30 April 2002, the applicant brought proceedings before the Ankara Civil Court of General Jurisdiction against the Ministry of Culture and the author of the book, and requested compensation for the non-pecuniary damage he had suffered on account of the expressions contained in the book. He alleged that the expressions constituted an attack on his identity as a 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 he had used the records of the Adana police headquarters and books written by other authors on Gypsies when writing the book 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 Gypsies in Turkey. The first-instance court therefore held that the expressions in question did not insult the applicant. As to the applicant's case against the Ministry, the first-instance court decided that it lacked jurisdiction as the administrative courts had jurisdiction over 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. In its decision it noted that the expressions in question were of a general nature. It therefore found no grounds for concluding that they concerned all 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 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. It is not clear from the documents in the case file whether or not the applicant lodged an appeal against this decision.

The last paragraphs of the conclusion to ‘The Gypsies of Turkey’ read as follows:

The Government stated that the applications should be rejected for non-exhaustion of domestic remedies since the applicant had not initiated proceedings before the administrative courts against the Ministry of Culture.

The Court reiterates that it is in the first place for the applicant to select which legal remedy to pursue: where there is a choice of remedies available to the applicant to obtain redress for an alleged violation of the Convention, Article 35 § 1 of the Convention must be applied in a manner corresponding to the reality of the applicant's situation, in order to guarantee effective protection of the rights and freedoms in the Convention (see I.G., M.K. and R.H. v. Slovakia (dec.), no. 15966/04, 22 September 2009).

As far as application no. 4149/04 is concerned, the Court notes that the applicant initiated compensation proceedings against the author of the book before the Ankara Civil Court of General Jurisdiction. Following the dismissal of his claims, he also brought an action against the Ministry of Culture before the Ankara Administrative Court, which was likewise rejected on 7 April 2004. However, it is not clear whether the applicant appealed against that judgment or not. As regards application no. 41029/04, the applicant did not bring any administrative proceedings against the Ministry of Culture but simply brought compensation proceedings against the Language Association.

The Court observes that in the instant cases the applicant's main complaints relate to the allegedly insulting statements contained in the book and the dictionary, both of which were written by private third parties. In both cases, the applicant chose to initiate civil proceedings against those third parties, which proceedings were pursued in full, up to cassation. By doing so he chose a reasonable, albeit ultimately unsuccessful, channel of redress. Accordingly, the Court considers that the applicant can be considered to have exhausted domestic remedies. As a result, this part of the Government's preliminary objections should be dismissed.

The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

The Court recalls firstly that, according to its established case-law, discrimination means treating differently, without any objective and reasonable justification, persons in relevantly similar situations. However, Article 14 does not prohibit a member State from treating groups differently in order to correct ‘factual inequalities’ between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-…).

The Court further reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those texts. Although the application of Article 14 does not presuppose a breach of those provisions — and to this extent it is autonomous — there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see Koppi v. Austria, no. 33001/03, § 25, 10 December 2009).

According to its established case-law, the Court notes 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., cited above, § 181). In Chapman (cited above, §§ 93–94), the Court also observed that there could be said to be an emerging international consensus amongst the Contracting States of the Council of Europe, recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves, but also to preserve a cultural diversity of value to the whole community. Furthermore, discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly insidious 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). In the light of the principles cited above, the Court finds that in the present cases Article 14 of the Convention is applicable in conjunction with Article 8.

In this connection the Court further reiterates that, 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 its 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).

Turning to the facts of the present cases, the Court observes that the applicant, who is of Roma origin, brought two civil lawsuits concerning the book and the dictionary in question, which in his view contained discriminatory remarks directed against the Roma community. He requested the national courts to order the retraction and correction of the insulting and erroneous statements, and he claimed compensation for the non-pecuniary damage sustained.

The Court observes that Article 24 of the Civil Code protects individuals against assault. According to this provision, an individual who considers that he or she was subjected to an assault on his or her person may claim protection from the judge against the persons responsible. Article 25 of the Civil Code further allows the claimant to request compensation for physical and psychological damage. It is clear from the facts of the present applications that the applicant was able to initiate civil lawsuits against the author of the book and the Language Association which had compiled the dictionary in question. During the domestic proceedings he was able to put forward his arguments at two levels of jurisdiction. It is also clear from the case file that the domestic courts conducted a thorough examination of the cases.

In respect of the book entitled ‘The Gypsies of Turkey’, the Ankara Civil Court of General Jurisdiction considered that it was an academic study which analysed the socio-economic situation of the Roma people in Turkey. In reply to the applicant's arguments that there were numerous paragraphs in the book that contained offensive and discriminatory language directed against the Roma community, the court held that, when read as a whole, the book was not insulting and the aim of the author was to make an academic study based on scientific and comparative research. The case was further examined by the Court of Cassation, which also found against the applicant, holding that the author of the book had made general remarks about the Roma community, that there was no attack on the applicant's person and that the statements in the book could not be considered to be directed against all Roma people.

In respect of the dictionary in question, the applicant initiated compensation proceedings against the Language Association. However, the domestic courts dismissed the case, holding that the expressions contained in the dictionary were based on historical and scientific reality, and that the Language Association had had no intention to humiliate or debase an ethnic group.

In view of the above, the Court observes that the applicant was able to argue his cases thoroughly before the domestic courts. As part of their obligations under Article 8, the domestic courts provided a forum for solving the dispute, which was between private persons. As stated previously in many Court judgments, the domestic courts are in a better position to evaluate the facts of a given case. The Court points out once again that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

As regards application no. 4149/04, the Court notes that, although the passages and remarks cited by the applicant, when read on their own, appear to be discriminatory or insulting, when the book is examined as a whole it is not possible to conclude that the author acted with bad faith or had any intention to insult the Roma community. It is made clear in the conclusion to the book that it 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 Court observes that the author in fact referred to the biased portrayal of the Roma and gave examples of their stereotyped image. It is important to note that the passages referred to by the applicant were not the author's comments but examples of the perception of Roma people in Turkish society. However, the author sought to correct such prejudices and made it clear that the Roma people should be respected. Bearing these considerations in mind and again stressing its subsidiary role, the Court is not persuaded that the author of the book insulted the applicant's integrity or that the domestic authorities failed to protect the applicant's rights.

As regards application no. 41029/04, the Court observes that the definitions provided by the dictionary were prefaced with the comment that the terms were of a metaphorical nature. The Court therefore finds no reason to depart from the domestic courts' findings that the applicant's integrity was not harmed and that he had not been subjected to discriminatory treatment because of the expressions described in the dictionary.

In the light of the foregoing, the Court concludes that in the present cases it cannot be said that the applicant was discriminated against on account of his ethnic identity as a Roma, or that there was a failure on the part of the authorities to take the necessary measures to secure respect for the applicant's private life. As a result, there has been no breach of Article 14 of the Convention taken in conjunction with Article 8 of the Convention.