DISSENTING OPINION OF JUDGE GYULUMYAN

The majority has found that 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. I disagree.

In the present case the applicant submitted that the remarks in the book entitled The Gypsies of Turkey and the expressions contained in the two dictionaries in question reflected clear anti-Roma sentiment and that the refusal of the domestic courts to award compensation and to ban the distribution of the books demonstrated an obvious bias against Roma. He relied on Article 14 of the Convention taken in conjunction with Article 8. The Court examined the case only under Article 8 of the Convention.

1. It seems to me that if the facts complained of are examined under Article 14 of the Convention the conclusion must be that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8.

Contrary to what is stated in paragraph 45 of the judgment, I am not persuaded “that the case does not concern a difference in treatment, and in particular ethnic discrimination”. The majority reached this conclusion only on the basis that “the applicant has not succeeded in producing prima facie evidence that the impugned publications had a discriminatory intent or effect”. In that respect I agree with the partly dissenting opinion of Judge Giovanni Bonello in Anguelova v. Bulgaria (no. 38361/97, ECHR 2002 ‑ IV), in which he stated:

“Alternatively [the Court] should, in my view, hold that when a member of a disadvantaged minority group suffers harm in an environment where racial tensions are high and impunity of State offenders epidemic, the burden to prove that the event was not ethnically induced shifts to the Government.”

2. The Court did not take into consideration the environment in which the three publications were issued and was satisfied by the assessments made by the Turkish courts. These courts usually take a very different approach when dealing with cases concerning the denigration of Turkishness (Article 301 of the Turkish Criminal Code).

In Altuğ Taner Akçam v. Turkey (no. 27520/07, 25 October 2011), the Government submitted statistical information according to which, in 744 cases between 2003 and 2007, criminal proceedings instituted under Article 301 (Article 159/1 of the former Criminal Code) for insulting Turkishness had resulted in convictions.

In the criminal proceedings against Hrant Dink (see Dink v. Turkey , nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 28, 14 September 2010), the Turkish Court of Cassation, sitting as a full criminal court, interpreted the term “Turkishness” as follows (Yargıtay Ceza Genel Kurulu, E.2006/9-169, K.2006/184, judgment of 11 July 2006):

“... Turkishness is constituted by the national and moral values as a whole, that is, human, religious and historical values as well as the national language and national feelings and traditions ...”

When it came to the national feelings and traditions of Roma people the Turkish court took a radically different approach, which in itself suggests a difference in treatment based on ethnicity.

3. In the book dealt with in application no. 4149/04, the Roma are described in strong language “as a marginal group which is excluded and despised everywhere”. Among the Roma occupations listed, reference is made to some Roma “who make a living from pickpocketing, stealing and selling narcotics”. Under one heading, the book states that “[t]he Gypsies of the central district of Ankara earn their living from stealing, begging ... zercilik [robbing jewellery stores] ...”. In another paragraph, “sorcery” is listed as one of the “most striking characteristics” of the Roma group concerned.

4. In the dictionaries which are the subject of application no. 41029/04, several terms beginning with the word “Gypsy” are defined in language that can only be regarded as derogatory and inflammatory, such as “‘Gypsy wedding’: a crowded and noisy meeting”, “‘Gypsy fight’: a verbal fight in which vulgar language is used” and “‘Becoming a Gypsy’: displaying miserly behaviour”.

5. These and several other expressions in the three books clearly disclose violations of Roma dignity, intolerance and a lack of respect for a culture that is different from the majority of society. Furthermore, the statements perpetuate stereotypes of and prejudices against the Roma and incite discrimination against a minority which is undoubtedly among the most vulnerable in Europe today, if not the most vulnerable. It has to be noted that the books were published with support from the Turkish authorities. The fact that the Ministry of Culture returned the copyright of one of the books to the author did not amount to the withdrawal or denunciation of the official sponsorship.

6. The fact that the book had been written by an academic and was therefore to be considered as an academic work is neither a justification nor an excuse for insulting ethnic dignity. Article 2 of the Declaration on Race and Racial Prejudice, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) on 27 November 1978, stated:

“Any theory which involves the claim that racial or ethnic groups are inherently superior or inferior, ... or which bases value judgments on racial differentiation, has no scientific foundation and is contrary to the moral and ethical principles of humanity.”

7. The Court quotes a country report and a policy recommendation by ECRI (paragraphs 38-39 and 75) in which States are encouraged to combat negative stereotyping and to ensure that school education plays a key role in the fight against racism and racial discrimination. The Turkish Dictionary for Pupils was intended for children, and the fact that it was decided from the outset not to distribute it to schools or recommend it as part of the school curriculum (paragraph 86) is not important from my perspective.

8. Apart from ECRI, the Court omits to mention that several institutions of the Council of Europe have taken targeted action aimed at furthering Roma rights. The Council of Europe High Level Meeting on Roma in October 2010 adopted the “Strasbourg Declaration on Roma”. Its Preamble condemns unequivocally “racism, stigmatisation and hate speech directed against Roma, particularly in public and political discourse”. Under the heading “Fighting stigmatisation and hate speech”, the Declaration recommends that member States:

“Strengthen efforts in combating hate speech. Encourage the media to deal responsibly and fairly with the issue of Roma and refrain from negative stereotyping or stigmatisation.”

9. A number of other human rights institutions and bodies of both global and regional organisations have specifically addressed discrimination faced by Roma minorities.

The Committee on the Elimination of Racial Discrimination adopted General Recommendation XXVII on “Discrimination against Roma” in 2000. The Committee (in paragraph 9) called on States:

“To endeavour, by encouraging a genuine dialogue, consultations or other appropriate means, to improve the relations between Roma communities and non-Roma communities, in particular at local levels, with a view to promoting tolerance and overcoming prejudices and negative stereotypes on both sides, to promoting efforts for adjustment and adaptation and to avoiding discrimination and ensuring that all persons fully enjoy their human rights and freedoms.”

10. Drawing on this overwhelming input from global and regional intergovernmental organisations and bearing in mind the vulnerability of the Roma minority in Turkey and beyond, I respectfully disagree with the Court’s conclusions. In my opinion, Turkey stands in violation of at least Article 8 of the Convention for supporting and not prohibiting the distribution of the books in question. There is no conflict with Article 10 inasmuch as the latter, in paragraph 2, refers to duties and responsibilities associated with freedom of expression and to the protection of the reputation and rights of others. It is of crucial importance that freedom of expression not only confers the right to hold opinions, but also imposes duties and responsibilities. It cannot therefore be interpreted as allowing the promotion or dissemination of the ideas of ethnic hatred and the superiority of one nation vis-à-vis other ethnic groups.

The continued stereotyping of the Roma must come to an end. It would be highly unfortunate for this Court to be seen to condone incitement to discrimination of the kind contained in the books in question.