Mr. Angel Getsov
angelgetsov@romatogether.org
To freely speak out our ideas, political opinion and social perceptions is one of the basic citizen’s rights protected by the human rights system. This article intends to slightly map some of the aspects of minority rights incorporated within the European Court of Human Rights jurisprudence in regard of the freedom of expression. Minority Rights are wider in scope than non-discrimination, thus dealing with the minority related cases the minorities situation within a given country should be taken in consideration regarding each particular case.
As an introduction – who are minorities?
Minority situations differ greatly from country to country and consequently require different approaches. There is no agreed internationally definition of minorities exist. No legal definition exists in UN Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities or European Framework convention for the protection of national minorities. The word “minority” can sometimes be misleading in itself. Outside Europe, and particularly in Africa, countries are often composed of a large number of groups, none of which make up a majority.
In the jurisprudence however are elaborated several criteria that serves as a definition of minority
Objective criteria:
- Common ethnicity or culture, religion or language
- Non-dominant
Subjective criteria
- Self-identification
- Want to protect and continue their identity
Minorities are to be understood as non – dominant groups. In calling for recognition of their identity as a national or ethnic religious or linguistic minority – such recognition of minority identity is exceedingly important but we should recall that many persons have many identities and we should remain aware of politicians and others who might try to abuse identity for political gain. The importance of recognizing minority identity is to ensure the inclusion of previously excluded groups in the life of the country in which they live and protect diversity and pluralism of culture, religion and language. Thus we must consider the situation of those living in minority situations in regions within the country and not just the whole State.
Minorities face common problems in different part of the world:
They are discriminated against within society, have weak political participation and lack equal access to economic, social and cultural rights. They may be harmed by or excluded from development projects and rarely do strategies to meet the MDGs or poverty reduction account for their needs and rights. They have less access to justice and security and are often implicated in conflict. National legislation may result in direct or indirect discrimination against them and where laws to protect and promote their rights exist these are often not implemented in practice. Marginalised groups within minority communities, in particular women, face additional barriers to overcoming exclusion. Testimonies exists that problems can emerge from a country’s history being written by dominant or majority groups with the history of minorities being neglected or denied. Other grievances expressed by persons belonging to minorities have been caused by the non-recognition of aspects of their identity, including their language or religion. Other grievances have related to the relative disadvantage of persons belonging to minorities as regards access to employment and public service.
European Court and minority rights
European Convention for the Protection of Human Rights and Fundamental Freedoms introduces one unique mechanism – the European Court for Human Rights. This allows individuals to bring before the Court cases of violation of their human rights proclaimed in the European Convention.
Comparing judicial mechanism means to other approaches for solving the human rights violations shows that protecting human rights trough courts generally differ from the other possibilities of protection.
The logical end of the Court trial is always a judgment. Only a judgment possesses res judicata ones the judgment came into force, its final and it became obligatory for the parties. The real unique value of the Court is that – only through a court procedure it is possible for an individual, by submitting an appeal, to start a process and to summon the State by which the alleged violation of human rights is made on a trial. If the appeal is admissible and the merits are proved, the Court will become with the judgment which is legally binding on the State and the State has to obey to the Court decision even if it doesn’t agree with it.
All other approaches (reconciliation, apology, mediation) depending on the common will of the parties to achieve settlement. This requires, in fact, the violator of the right to recognize the violation and to take measures to redress it.
As an achievement of the Court procedures can be showed that they encourages friendly settlements to be achieved between the parties at all stages of the process, the Court endorses friendly settlements through judgments. Thus the victim of the violation can receive the best from the both judicial and non judicial systems for protection of human rights – speed and clear procedure of friendly settlement and res judicata of the settlement achieved.
Of course along with the pluses of the court system there is a lot of weaknesses within it:
- The speed of the procedure is low, due to the overloading of the Court with cases. The procedure is open to more than 800 million people and at the end of 2005 almost 80.000 cases are pending
- It is not obligatory to individual to be represented by the lawyer before the Court, but due to the complicated procedure and a wide range of possibilities to strike out the case as inadmissible, the representation by lawyer is almost compulsory, in fact. Thus the judicial system for human rights protection is slow and complicated.
- The court system is not a successful mechanism for solving gross violations of human rights. European Court system organized along national courts is hardly the best remedy for gross, serious or systematic violations.
- European Court system is unlikely to be the first forum to which an individual or group may turn, and it cannot consider the general situation of human rights within a country.
- The small scope of the convention itself (only civil and political rights), exclude from the possibility of individual to contest the State if it violates against minority human rights or social human rights.
The protection and promotion of minority rights is not the primary task of the Convention.
At present, the only specific reference to minorities is to be found in Article 14 of the ECHR:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Discrimination has to be understood not limited only to those cases in which a person or group is treated worse than another similar group. It may also be discrimination to treat different groups alike: to treat a minority and a majority alike may amount to discrimination against the minority. Moreover, the European Court of Human Rights has held that if a State takes positive measures to enhance the status of a minority group (for example, with respect to their participation in the democratic process), the majority cannot claim discrimination based on such measures. In general, “a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”.
FREEDOM OF EXPRESSION AND MINORITIES
The freedom of expression is crucial condition to exercise almost all of minority rights – linguistic, political, cultural and religious. It is important to understand that Integration differs from assimilation in that while it develops and maintains a common domain where equal treatment and a common rule of law prevail, it also allows for pluralism. The implantation of this pluralism requires that freedom to express each one’s own identity exists. Only achieving this freedom of expression of different minority identities it is possible to differ integration from assimilation. To integrate does not mean to make everyone equal – minorities differ from majorities by their own culture or language, religion or kin of state. Furthermore minorities are willing to exercise their identity and to preserve it.
Minority group identity requires not only tolerance but a positive attitude towards cultural pluralism on the part of the State and the larger society. Not only acceptance but also respect for the distinctive characteristics and contribution of minorities to the life of the national society as a whole is required. Protection of their identity means not only that the State should abstain from policies which have the purpose or effect of assimilating minorities into the dominant culture, but also that it should protect them against activities by third parties which have an assimilatory effect. Pluralism surely exists if everyone can express his own identity and ideas, feel equally before the law and can exercise his rights without any interference and discrimination. That process should be an interaction between the persons belonging to the minority themselves, between the minority and the State, and between the minority and the wider national society. The right of expression is crucial to minorities’ rights to have their opinions heard and fully taken into account before decisions which concern them are adopted. The right of expression is crucial to promote minority interests and values and to create an integrated but pluralist society based on tolerance and dialogue. Hence the freedom of expression is sine qua non for minorities to ensure freely exercise their other minority rights.
This freedom is one of the cornerstones of a democratic State and is fundamental to ensuring that minorities participate effectively in public life. Governments sometimes seek to justify restrictions of this freedom on the grounds of national security. These restrictions should be subjected to strict scrutiny to ensure the validity and the proportionality of the restriction. In particular, the effect of the restrictions on the participation of minorities in public life should be analyzed.
The relation between the freedom of expression and minorities can be looked and from the opposite direction. Minority rights are often violated, and minorities became victimized from the State and/or third parties by publicly expressed hateful or insightful speech. The classic definition of “hate speech” is expression which incites hatred, particularly racial, national, or religious hatred. It must be recognized that some speech which is undoubtedly offensive, does not constitute hate speech, even though it may contribute to a climate of prejudice and discrimination against minorities. Such speech would include the tendency by media to report the bad news about minorities when it affects the majority population, for example noting when the perpetrator of a crime is the member of a minority.
The approach on defying borders of the freedom of expression undertaken by the European Court is responded to both mentioned issues – it gives more freedom to criticize to these that are in a non – dominant position and it enters strictly boundaries on the scope of the freedom of expression if it contains any incitement to violence. The freedom of expression is contained in article 10 of the European Convention:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
These are the fundamental principles regarding the right of expression emerged in the Court case law.
- Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
- The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.
- In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.
These principles applied to different background leads to different decisions of the Court. The following cases are related to the interaction majority – minority and shows the attitude of the Court regarding freedom of speech boundaries.
Case of ZANA v TURKEY
The facts:
Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.
At the time of the Court’s consideration of the case, ten of the eleven provinces of south-east Turkey had since 1987 been subjected to emergency rule.
Mr Mehdi Zana, a Turkish citizen born in 1940, is a former mayor of Diyarbak?r, where he currently lives. In August 1987, while serving several sentences in Diyarbak?r military prison, the applicant made the following remarks in an interview with journalists:
“I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake …”
That statement was published in the national daily newspaper Cumhuriyet on 30 August 1987. The applicant’s statement coincided with the murders of civilians by PKK militants.
Merits of the decision:
The Court found that there was no breach of article 10 of the Convention by the State in this particular case because of two major reasons.
1 – The situation in the area
2 – The nature of the applicant and his act
As regarding to the act conducted by Mr. Zana the Court estimates it as an act that can “exacerbate an already explosive situation in that region”. It is not necessary the statement of the applicant to lead to some concrete action that will put in danger interests of national security, territorial integrity or public safety, to apply measures against him. It is enough his act to be from such a manner that can foment such a tensions to apply measures against him restricting his rights. The second sentence of his statement “Anyone can make mistakes and the PKK kill women and children by mistake” cannot be interpreted as opposite to violence. In fact this statement appreciates violent means to reach political aims.
In the light of the surrounding situation – existence of tensions between the security forces and the members of the PKK a statement that appears to be in favour of that the PKK uses of arms for political aims certainly raise up the Turkish officials concerns regarding interests of national security, territorial integrity or public safety.
Furthermore being a famous politician Mr. Zana can provoke more tensions that threatening national security and public safety by giving legitimacy to a terrorist attacks in a statement made public.
The Court found that the restrictive measures came out from the pressing social needs because in fact the statement is incitement to violence that is done through a mass media by the famous politician in an instable environment. Thus the Court founds that Mr. Zama actually foment to violations against security so the measures applied by the Turkish authorities are not a violation of the art.10 of the Convention.
Case of INCAL v TURKEY
The facts:
Mr Ibrahim Incal, a Turkish national born in 1953, lives in ?zmir. A lawyer by profession, he was at the material time a member of the executive committee of the ?zmir section of the People’s Labour Party (“the HEP”). On 1 July 1992 the executive committee decided to distribute in the ?zmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city. The text contained a number of virulent remarks about the policy of the Turkish government and made serious accusations, holding them responsible for the situation. Appealing to “all democratic patriots”, it described the authorities’ actions as “terror” and as part of a “special war” being conducted “in the country” against “the Kurdish people”. It called on citizens to “oppose” this situation, in particular by means of “neighbourhood committees”
In the present case the ?zmir executive committee of the HEP submitted one copy of the leaflet to the ?zmir prefecture on 2 July 1992 with an application for permission to distribute it
The leaflet hasn’t been issued ever.
Merits of the decision:
This case differs from the Case of Zana in two major spheres:
1 – The act of the applicant does not contains any incitement to violation
2 – Situation in the area of Izmir – at the time when the leaflet were prepared there were no disturbances to rise up concerns regarding the national security or public safety.
The Court found that there was ? breach of article 10 of the Convention mainly because it founds that there was no need of restriction.
The leaflet contains criticism to the programs and measures undertaken by the Turkish officials that concerns the Kurdish minority in Izmir. It presents this measures applied as a war against Kurds and calls among other to oppose this war and with the creation of neighbourhood committees The Court notes, however, that in considering the question of compliance with Article 10 it did not discern anything in the leaflet which might be regarded as incitement of part of the population to violence, hostility or hatred between citizens – pluralism of opinions is one of the foundations of a democratic societies and if we forbid the opposition political parties the possibility to criticize we will lost some of these foundations.
The Court does not discern anything which would warrant the conclusion that Mr Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically in ?zmir. No terrorist acts was reported, furthermore the Government failed to provide evidences is there any objective reasons to fear that such a tensions can exist in Izmir at all.
The scope of the freedom of expression related to minorities in regard European Court Case Law
As the Courts reiterated several times in different judgments, “the freedom of speech is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” As the Court states in the case of Arslan v Turkey “The limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position that the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.” And that the “freedom of expression nevertheless included the right to engage in open discussion of difficult problems with a view to analysing the underlying causes of the situation or to expressing opinions on possible solutions”. These rights have to be applied especially in favour of minority politicians who have to represents their opinions freely and without interferences.
Boundaries of this right must be found according art.10/2 and art.17 of the Convention. None of the rights and freedoms set up in the Convention can be used to destruct the rights and freedoms set forth in the Convention. Finally, where exercising of the freedom of expression incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.
However to apply such a restrictive measures the Government undoubtedly have to prove first that the act to whom the measures are applied to is done in a manner that can lead to some threats of the values in art. 10/2. Proving this it has to determine undoubtedly that in applying of such restrictive measures it was lead by existing social need – social environment of each concrete case. Thus existing social need have to be proved by sufficient quality and quantity proves that are objective.
The Court entering straight boundaries regarding the freedom of speech – it ends there where starts the incitement to violence. Nevertheless the Court held an opinion that the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or a politician. And it is even more sensitive to guarantee existence of an opponent of official ideas and positions that must be able to find a place in the political arena. As the Court founds in his decision Özgur Gundem v Turkey – “… effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals.” Thus provides way to that the positive measures to protect the freedom of expression to be created (including for protection of minorities from hate speech).
Not dealing with minority rights in particular the Court still provide avenues for protection and promotion of minority rights beside art.14 of the European Convention.