My post on Aksu v. Turkey received some criticism for not taking the freedom of expression into account. A brief memory-aid: Aksu is the case of a man of Roma origin who complained about degrading stereotypical remarks made about Roma in government-sponsored publications. In a “dictionary for pupils” and a book entitled “The Gypsies of Turkey” Roma were put down as “stingy”, “greedy”, “thieves” etc. (See my previous post).
News about the Court will pick up again – the Court will be releasing 21 judgments today – but because I find this such an interesting case I would like to take this opportunity to reflect further on Aksu, this time from a freedom of expression perspective.
The first thing that is remarkable from this perspective is that the Court decides to declare this application admissible. Mr. Aksu complains that he is hurt in his dignity and is discriminated against on grounds of his ethnic origin, by publications that are general in nature and do not name him specifically. Is this not an actio popularis? The Court solves it by observing that the applicant had standing under domestic law, therefore he has standing in Strasbourg (par. 33-34).
And since this is apparently not an actio popularis: what are the consequences of this case for other cases in which people feel offended by degrading remarks made by public officials? I am thinking here of politicians like Geert Wilders, who calls Islamic culture – in its entirety – “retarded”. Will the people who are hurt by Wilders have a chance in Strasbourg now? Rick Lawson, Professor of Law at Leiden University, argues that the case law of the ECtHR leaves more room than is generally thought for prosecuting people like Wilders, who stigmatize entire segments of the population. He also contends that it is desirable that the Court creates the opportunity for people (like Mr Aksu), to complain about public expressions that attack or stigmatize entire groups, based on their race, religion, sexual orientation etc. (See R.A. Lawson, “Wild, wilder, wildst – Over de ruimte die het EVRM laat voor de vervolging van kwetsende politici”, NJCM-Bulletin, pp. 469-484 (2008); and “Boven het maaiveld – Over de ‘ruimhartige’ toepassing van het EVRM door nationale rechters:, in: Barkhuysen, T., Emmerik, M.L., Loof, J.P. (Eds.) Geschakeld recht. Verdere studies naar Europese grondrechten ter gelegenheid van de 70ste verjaardag prof. mr. E.A. Alkema (pp. 307-323). Deventer: Kluwer, 2009)
Both Lawson’s approach and the approach of the minority in Aksu is in line with the views of the Committee on the Elimination of Racial Discrimination (CERD). In their General Recommendation 30, (2004, par. 12) CERD observes that State Parties should: “Take resolute action to counter any tendency to target, stigmatize, stereotype or profile, on the basis of race, colour, descent, and national or ethnic origin, members of “non-citizen” population groups, especially by politicians, officials, educators and the media, on the Internet and other electronic communications networks and in society at large”
Now back to Aksu and the question of whether the state is under an obligation not to publish a book and a dictionary that include harmful stereotypes of Roma. CERD would answer that question in the affirmative. And so would I. In addition, I’m thinking here of the research done by Lera Boroditsky, Assistant Professor of Cognitive Psychology at Stanford University. She addresses the question : “Do the languages we speak shape the way we think?” For lawyers, one of her key findings is that “if you change how people talk, that changes how they think.” It turns out, words are not just words.