EHRM, 15-03-2012, nr. 41029/04, nr. 4149/04

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.

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.