PARTLY DISSENTING OPINION OF JUDGE KELLER

1. The majority of the Court rightly held that Article 10 had been violated. Section 58 of Law no. 298 per se violates the right to freedom of expression. I could not agree more with this finding, as making it a criminal offence to use a language other than Turkish in campaigning for election contravenes the very essence of Article 10.

2. In the light of this finding, the majority took the view that there was no need to examine the complaint under Article 14 (in conjunction with Article 10). To my regret, I am unable to follow the opinion of the majority in this respect.

3. I certainly understand that, in some cases, the Court may wish to limit the scope of a ruling for reasons of procedural economy. However, in the instant case this approach appears to be unduly reductive. The use of language in all areas of life constitutes a core human rights issue. Particularly in minority situations, the use of language is a highly sensitive matter. It is therefore vital that the Court take a thorough look at these issues.

4. In Dudgeon v. the United Kingdom, the Court found that a complaint against the prohibition of homosexual acts under Article 14 “amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8”. It therefore concluded that “there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue” and that “there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right. This being so, it cannot be said that a clear inequality of treatment remains a fundamental aspect of the case” [8] . This approach from 1981 is out of date nowadays [9] . If a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case, the Court has to consider the issue under Article 14 as well [10] . The complaint under Article 14 in conjunction with another Convention right is an autonomous one [11] to which the Court must give autonomous meaning.

5. In my view, the discrimination regarding the use of a particular language is a fundamental aspect in this case: the applicants formulated an arguable claim of indirect discrimination (see paragraphs 6 et seq. below), the Government failed to respond to that claim (see paragraphs 10 and 11 below) and therefore the Government bear the burden of proof (see paragraph 12 below).

II. Arguable claim and prima facie evidence

6. The applicants argued, inter alia , that section 58 of Law no. 298 applied only to Kurds and to the Kurdish language and that persons were not prosecuted for using any other language (see paragraph 60 of the judgment). This is a serious allegation, one which was communicated to the Turkish Government.

7. It is true that the applicants did not provide any statistical data regarding the discriminatory application or effect of section 58 of Law no. 298. However, while the Court has previously held that statistical data may underpin a claim under Article 14, it has also found that such data are not strictly necessary in order to establish an arguable claim [12] .

8. The mere fact that the applicants were all Kurdish, were living in different cities and were all prosecuted for using of the Kurdish language is a very strong indication of the existence of indirect discrimination.

9. Moreover, according to the Court’s case-law, it is not for the applicant but rather for the Government to gather the relevant materials when these lie wholly or in large part within the exclusive knowledge of the authorities [13] . The applicants in the case at hand could only have gathered the relevant data by requesting them from the public prosecutors’ offices and courts in Turkey. They would have depended completely on the goodwill of the national authorities. In such a situation, the principle affirmanti incumbit probatio cannot be applied rigorously.

III. Shifting of the burden of proof

10. Once applicants alleging indirect discrimination establish a prima facie case thereof, this creates a rebuttable presumption that the effect of a practice is discriminatory, and the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory [14] .

11. In the case at hand, the Government’s answer was confined to stating that the law was applicable to all persons without discrimination on the basis of race, colour, sex, political opinion, religion or philosophical belief. According to the Turkish Government, the applicants’ ethnic origin was not taken into account by the domestic courts in adjudicating the matter.

12. This, however, is not the point. The applicants claim indirect discrimination on the basis of a law which was worded in ethnically neutral terms but applied in a discriminatory way. Moreover, the Government fail to cite even a single case in which individuals were prosecuted for using a language other than Kurdish.

13. Therefore, I am of the opinion that the Court should have examined the issue under Article 14. After having assessed all the relevant elements and drawing inferences from the Government’s failure to put forward any arguments showing that the impugned law was applied in a non ‑ discriminatory manner, the Court should have come to the conclusion that there had been a violation of Article 10 taken together with Article 14 of the Convention.

[1] . Rectified on 23 January 2013. The applicant’s name, which read “Mesut Bektaş”, was changed.

[2] . The name of the applicant’s representative, which read “M.D. Bektaş”, was changed.

[3] . The applicant’s name, which read “Mesut Bektaş”, was changed.

[4] . The applicant’s name, which read “Mesut Bektaş”, was changed.

[5] . The applicant’s name, which read “Bektaş”, was changed.

[6] . The applicant’s name, which read “Bektaş”, was changed.

[7] . The applicant’s name, which read “Bektaş”, was changed.

[8] . Dudgeon v. the United Kingdom , 22 October 1981, § 69, Series A, no. 45.

[9] . See, for example, Kurić and Others v. Slovenia ([GC], no. 26828/06, ECHR 2012): “Having regard to the importance of the discrimination issue in the present case, the Grand Chamber considers, unlike the Chamber, that the applicants’ complaint under Article 14 of the Convention should be examined.”

[10] . Oršuš and Others v. Croatia [GC], no. 15766/03, § 133, ECHR 2010.

[11] . Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV.

[12] . D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 188, ECHR 2007-IV.

[13] . Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005-VII; D.H. and Others, cited above, § 179; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 183, ECHR 2009.

[14] . D.H. and Others , cited above, § 189.