March 20, 2012
The Grand Chamber has handed down its much-awaited judgment in Aksu v. Turkey. This case concerns the use of derogatory stereotypical images of Roma in government-sponsored publications. The Grand Chamber holds with 16 votes to 1 that article 8 (right to private life) has not been violated. I have mixed feelings about the Court’s reasoning. When it comes to stereotypes, the judgment contains progressive and insightful reasoning. On the other hand, I regret that the Court did not take the substance of the applicant’s complaint – namely that he was discriminated as a Roma – seriously. In what follows I will chart the Court’s judgment and highlight both some strengths and some weaknesses.
There is a lot to say about this ruling, so I will just briefly refresh your memory as regards the facts of the case. (See my post on the Chamber judgment for a more elaborate account of the facts). Mr Aksu is of Roma origin and complained about two publications: a dictionary that was partly financed by the Turkish Ministry of Culture and a book which was written by an Associate Professor and published by the Ministry of Culture. Both these publications included ideas such as that Roma are “miserly” and thieves. Aksu complained that these publications offended him in his Roma identity, as a matter of Article 14 (the anti-discrimination provision) in conjunction with Article 8.
The Court essentially takes three steps in its reasoning regarding the merits: (1) it decides to not examine the complaint under article 14, (2) it decides that this case falls within the scope of article 8 and that the State’s positive rather than negative obligations are at stake, and (3) it balances the applicant’s right to private life against the public interest in protecting freedom of speech (article 10). I will briefly discuss each of these steps.
1) No examination of article 14
The Grand Chamber decides not to examine the complaint under the anti-discrimination provision. This is in my opinion the most troublesome aspect of the judgment. As I have argued in a recent article on gender stereotypes and the case law of the ECtHR, I think negative stereotyping is a discrimination issue.
The Grand Chamber reasons:
the case does not concern a difference in treatment, and in particular ethnic discrimination, as the applicant has not succeeded in producing prima facie evidence that the impugned publications had a discriminatory intent or effect. The case is therefore not comparable to other applications previously lodged by members of the Roma community (para 45)
Since when do applicants have to demonstrate prima facie evidence of discrimination in all (not just indirect) discrimination cases? On a first reading, this strikes me as a departure from the Court’s regular discrimination-analysis. Moreover, in my view, the applicant did adduce prima facie evidence that these publications had the effect of harming his Roma’s ethnic identity and reputation. If this kind of expressive harm does not count, what kind of discriminatory effect is the Court looking for then?
2) Article 8: scope and positive obligations
Next, the Court holds that a person’s ethnic identity is part of a person’s private life and as such falls under the scope article 8. The Court adds some very interesting new reasoning on this point:
[A]ny 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. It is in this sense that it can be seen as affecting the private life of members of the group. (para 58)
Yes! I think the Court has got it right here. The problem with negative stereotyping is that it interferes with the individual’s capacity to determine her own identity and life-course – stereotyping is a way of putting people in a box. Now, for the first time, the Court makes explicit that this is not acceptable under the right to private life.
Next, the Court holds that this case revolves around the State’s positive rather than negative obligations. The precise reasons for this have to do with the way the case was litigated at the domestic level (see paragraphs 60 and 81). Thus, according to the Court, the question is whether the Turkish State adequately protected the applicant’s private life from the alleged interference by third parties (namely the author/publisher of these books).
3) Article 8: Balancing
The Court’s answer to this question is yes. The State had to balance conflicting rights under Article 8 and Article 10 (freedom of expression). As regards the book written by an Associate Professor, the Court emphasizes the importance of academic freedom. As regards the dictionary, the Court notes that dictionaries are meant to reflect the language used in society. However, as regards the dictionaries’ practice to preface insulting entries about Roma with the word “metaphorical”, the Court does observe that:
it would have been preferable to label such expressions as “pejorative” or “insulting”, rather than merely stating that they were metaphorical. Such a precaution would also be in line with ECRI’s General Policy Recommendation No. 10, which stipulates that States should promote critical thinking among pupils and equip them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in the material they use (para 85).
Again there is this sensitivity to the harm of stereotyping.
All in all, I think the Court does a decent job balancing the competing interests at stake. The importance to safeguard the freedom of expression carries the day.
There is much more to say about this judgment; I haven’t even had the opportunity to touch on the interesting reasoning regarding the admissibility of the case, nor on the remarkable dissent by Judge Gyulumyan.
My overall impression is that the judges pre-agreed on the outcome – no violation of the Convention – and then tried to find the easiest way of reaching that outcome. Regrettably, the result is that the Court declines to make a proper discrimination-analysis and opts to cast the case as one concerning positive obligations. Still, this Grand Chamber judgment accomplishes something of crucial importance: it recognizes negative stereotyping as a human rights issue.