készíti: Gellért Ádám
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“The only necessary for "evil" to triumph is for a few good men to do nothing”

2010. augusztus 4., szerda

A faji diszkrimináció megállapításának nehézségei - Aksu v. Turkey

Az Aksu v. Turkey ügyben a kettes szekció 4:3 arányban elutasítota az egyezménysértésre vonatkozó beadványt. A különvéleményt megfogalmazó bírók, köztük a ECtHR elnökének, érvelése is figyelemre méltó. Kivonat a többségi indokolásból:

"51. Turning to the facts of the present cases, the Court observes that the applicant, who is of Roma origin, brought two civil lawsuits concerning the book and the dictionary in question, which in his view contained discriminatory remarks directed against the Roma community. He requested the national courts to order the retraction and correction of the insulting and erroneous statements, and he claimed compensation for the non-pecuniary damage sustained.

53. In respect of the book entitled “The Gypsies of Turkey”, the Ankara Civil Court of General Jurisdiction considered that it was an academic study which analysed the socio-economic situation of the Roma people in Turkey. In reply to the applicant's arguments that there were numerous paragraphs in the book that contained offensive and discriminatory language directed against the Roma community, the court held that, when read as a whole, the book was not insulting and the aim of the author was to make an academic study based on scientific and comparative research. The case was further examined by the Court of Cassation, which also found against the applicant, holding that the author of the book had made general remarks about the Roma community, that there was no attack on the applicant's person and that the statements in the book could not be considered to be directed against all Roma people.

54. In respect of the dictionary in question, the applicant initiated compensation proceedings against the Language Association. However, the domestic courts dismissed the case, holding that the expressions contained in the dictionary were based on historical and scientific reality, and that the Language Association had had no intention to humiliate or debase an ethnic group.

55. In view of the above, the Court observes that the applicant was able to argue his cases thoroughly before the domestic courts. As part of their obligations under Article 8, the domestic courts provided a forum for solving the dispute, which was between private persons. As stated previously in many Court judgments, the domestic courts are in a better position to evaluate the facts of a given case. The Court points out once again that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

56. As regards application no. 4149/04, the Court notes that, although the passages and remarks cited by the applicant, when read on their own, appear to be discriminatory or insulting, when the book is examined as a whole it is not possible to conclude that the author acted with bad faith or had any intention to insult the Roma community. It is made clear in the conclusion to the book that it was an academic study which conducted a comparative analysis and focused on the history and socio-economic living conditions of the Roma people in Turkey. The Court observes that the author in fact referred to the biased portrayal of the Roma and gave examples of their stereotyped image. It is important to note that the passages referred to by the applicant were not the author's comments but examples of the perception of Roma people in Turkish society. However, the author sought to correct such prejudices and made it clear that the Roma people should be respected. Bearing these considerations in mind and again stressing its subsidiary role, the Court is not persuaded that the author of the book insulted the applicant's integrity or that the domestic authorities failed to protect the applicant's rights.

57. As regards application no. 41029/04, the Court observes that the definitions provided by the dictionary were prefaced with the comment that the terms were of a metaphorical nature. The Court therefore finds no reason to depart from the domestic courts' findings that the applicant's integrity was not harmed and that he had not been subjected to discriminatory treatment because of the expressions described in the dictionary.

58. In the light of the foregoing, the Court concludes that in the present cases it cannot be said that the applicant was discriminated against on account of his ethnic identity as a Roma, or that there was a failure on the part of the authorities to take the necessary measures to secure respect for the applicant's private life. As a result, there has been no breach of Article 14 of the Convention taken in conjunction with Article 8 of the Convention."

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