AKSU v. TURKEY JUDGMENT: Discrimination against Roma Community in Turkey, Study notes of Law

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GRAND CHAMBER

CASE OF AKSU v. TURKEY

(Applications nos. 4149/04 and 41029/04)

JUDGMENT

STRASBOURG

15 March 2012

Jočienė, Dragoljub Popović, Nona Tsotsoria, Işıl Karakaş and Kristina Pardalos, judges, and Stanley Naismith, Deputy Section Registrar, delivered a judgment in which it decided to join the applications (Rule 42 § 1) and held by four votes to three that there had been no violation of Article 14 of the Convention taken in conjunction with Article 8.

5. On 22 November 2010, following a request from the applicant dated 25 October 2010, a panel of the Grand Chamber decided to refer the case to the Grand Chamber under Article 43 of the Convention.
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.
7. The applicant and the Government each filed further observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Greek Helsinki Monitor, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
8. A hearing took place in public in the Human Rights Building, Strasbourg, on 13 April 2011 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government Mr M. ÖZMEN, Co-Agent , Ms A. EMÜLER, Mr M.Z. UZUN, Ms N. AKSOY, Mr O. SAYDAM, Mr U. AKSUNGUR, Counsel ;

(b) for the applicant Mr S. ESMER, Counsel.

The Court heard addresses by Mr Esmer and Mr Özmen.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. The applicant, who is of Roma origin, was born in 1931 and lives in Ankara.

A. Application no. 4149/

1. The book The Gypsies of Turkey ( Türkiye Çingeneleri )

10. In 2000 the Ministry of Culture published 3,000 copies of a book entitled The Gypsies of Turkey , written by Associate Professor Ali Rafet Özkan. Before its publication, a publications advisory board approved the content of the book. The preface to the book states as follows:

“... Gypsies live in peace on Turkish territory today, just as they have throughout history, but now they are left entirely to their own devices, without regulation, supervision or attention. Their unregulated way of life, in which they are abandoned entirely to their own fate, is a failing on Turkey’s part. The Gypsies’ current unordered way of life, and the fact that it is considered quite unnecessary to venture into their closed world in any way despite the long history we share, is a further shortcoming. Associated with this is the fact that while Gypsies have indeed lived for many years among us, they have been ostracised by local people and targeted by vilifying remarks which have, for the most part, been unenlightened and prejudiced. The negative response and distressing accusations which they encounter wherever they go have driven Gypsies, who already have a societal structure which is closed off from the outside world, to live in still narrower confines. We felt that there was a need to step into the unknown world of these people who have lived among us for centuries and have now become part of contemporary Turkish culture. My aim was thus to get to know them closely using an empirical approach, and to present the Gypsies of Turkey as they are, in all their aspects, on the basis of the principles of scientific objectivity. This study comprises an introduction and two sections. The introduction provides information about the Gypsy as a concept and the origins of the Gypsies, as well as detailed information about their migration, and considers their history in Turkey in the light of various archive documents and scholarly sources. In the first section, the socio-cultural characteristics of Gypsies are considered in broad terms. This section examines in particular the home life and travels of Gypsies, their music, dance, language, traditions and customs. The second section deals with the beliefs and practices of the Gypsies. This study – which I present without any pretensions, but merely in a bid to fill a significant gap (it being the first study of its kind), and to provide guidance to others working on the Gypsies in the future – was prepared using descriptive, comparative and phenomenological methods, in addition to participant observation and interview techniques. ...”

11. In the introduction, the author went on to state: “... Gypsies have spread throughout the world but they have been unable to escape their status as a marginal group which is excluded and despised everywhere. Apart from the differences in their way of life, the characteristic which most obviously distinguishes Gypsies from others is the colour of their skin, which is darker, swarthier. In typological terms, most Gypsies are of medium height, of agile build, with large dark

Tekirdağ ... The Roma (Gypsies) of Tekirdağ make their livelihood from playing music, portering and shoe-shining. Women work as domestic cleaners and handle bricks at the brick factory. Those in Çorlu and Lüleburgaz earn their living from music, portering, horse trading (livestock dealing), construction work and running lotteries, and the women earn their living from cleaning. Kırklareli ... The Roma of Kırklareli generally make their living from music, working with a horse and cart, street vending, portering, cleaning and scrap-metal dealing. Edirne ... Those who live in Edirne city centre generally earn their living from working with a horse and cart, scrap-metal dealing and street vending, while the women contribute to the family economy with cleaning work. Nearly all of the inhabitants of the Yukarı Zaferiye district of Keşan earn their livelihood from music. The rest of them work in various sectors such as labouring in the rice fields, concrete-pouring on construction sites, portering, working with a horse and cart, collecting frogs and slugs, scrap-metal dealing, paper collection, house painting and selling simit [a type of bread roll]. Those in Uzunköprü live from scrap-metal dealing, tinsmithing and basket-making. ... Ankara ... The Gypsies of the central district of Ankara earn their living from stealing, begging, door-to-door selling, fortune-telling, zercilik [robbing jewellery stores] and making magical charms. A small number are also involved in tinsmithing, working with leather harnesses, sieve-making and basket-making. There are also many who work as musicians in nightclubs. It is reported that most of those who trade in ironmongery around Altındağ and Hamamönü are Gypsies from Çankırı. ... We attempted to visit every province and district where Gypsies were located. The figures which we have given for each province were obtained by comparing information, noting the exaggerated figures given by the Gypsies and then talking to the district chiefs [ muhtar ], and where necessary the district police. ...” Similar remarks to the ones quoted above were made in respect of the Roma population living in other parts of Turkey such as İzmir, Manisa, Konya, Adana and Antalya.

13. The closing paragraphs of the conclusion to The Gypsies of Turkey read as follows:

“The most important links connecting the Gypsies to each other are their family and social structures as well as their traditions. Despite the fact that they have led a nomadic life for more than a thousand years, they have managed to protect their traditional way of living thanks to the practice of marrying within the group. Their

attachment to these traditions begins at birth and continues till death. Doubtless, tradition is the most significant factor in the Gypsy way of life. The elderly members of Gypsy society bear the heaviest responsibility for protecting and sustaining the traditions. However, due to ever-changing circumstances and needs, the social structure of the Gypsies has become difficult to preserve. In particular “ Natia ”, one of these social structures, can no longer be sustained in today’s Turkey. The most striking characteristic of Gypsies is their way of living. Hence, all branches of socio-cultural activity, consisting of migration and settlement, dance, music, language, eating and drinking, fortune-telling, sorcery and occupations, constitute the true nature of Gypsy life. That is to say, these elements form the visible part of the iceberg. Other persons usually recognise Gypsies through these phenomena. Nevertheless, the way to truly know Gypsies is to mingle with their society and fully analyse their traditions and beliefs. The secret world of the Gypsies reveals itself through their beliefs, in particular through their superstitions and taboos. Gypsies, like everyone, feel the need to have faith and to worship. In addition to adopting the religion of the country they live in, they also perpetuate the traditional beliefs specific to their culture. Consequently, it is observed that Gypsies have genuine feasts and celebrations stemming from their beliefs, which can be partly traced to Hinduism. In our opinion these people, who suffer from humiliation and rejection everywhere, could be transformed into citizens who are an asset to our State and our nation once their educational, social, cultural and medical problems are addressed. This simply entails focusing on this issue with patience and determination.”

2. The domestic proceedings initiated by the applicant

14. On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Roma/Gypsy associations. In his petition he submitted that in the book the author had stated that Gypsies were engaged in illegal activities, lived as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and were polygamist and aggressive. The applicant also submitted that the book contained several other remarks that humiliated and debased Gypsies. Claiming that these remarks constituted a criminal offence, he requested that the sale of the book be stopped and all copies seized.
15. On the same day the Head of the publications unit at the Ministry of Culture ordered that the remaining 299 copies of the book be returned to the publications unit.
16. On 11 October 2001 the applicant wrote a letter to the Ministry of Culture enquiring whether the copies of the book had been seized.
17. On 17 October 2001 the Head of the publications unit at the Ministry of Culture informed the applicant that the publications advisory board of the Ministry, composed of seven professors, had decided that the book was a piece of scientific research and did not contain any insults or similar remarks. The applicant was also informed that the author of the book would not permit any amendments to the text and that, at the author’s request, the Ministry had transferred copyright of the book to him.

the applicant’s allegations the advisory board, composed of seven professors, had examined the book again on 25 September 2001 and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale. The Administrative Court therefore concluded that the applicant’s allegations were unsubstantiated. The applicant did not appeal against this decision.

B. Application no. 41029/

26. In 1991 and 1998 respectively the Language Association, a non- governmental organisation, published two dictionaries entitled Turkish Dictionary for Pupils ( Öğrenciler için Türkçe Sözlük ) and Turkish Dictionary ( Türkçe Sözlük ). Apart from their titles, both dictionaries had exactly the same content. The publication of these dictionaries was part- financed by the Ministry of Culture.
27. On 30 April 2002 the applicant sent a letter to the Executive Board of the Language Association on behalf of the Confederation of Roma/Gypsy Cultural Associations. In his letter, the applicant submitted that certain entries in the dictionaries were insulting to and discriminatory against Roma/Gypsies.
28. On page 279 of both dictionaries, the following entries were made regarding the word “Gypsy” ( çingene ):

“‘Gypsy’ ( Çingene ): 1. an ethnic group or person belonging to an ethnic group originating from India, whose members lead a nomadic way of life and are widely dispersed in the world. 2. (metaphorically) miserly. ‘Gypsy debt’ ( Çingene borcu ): an unimportant debt which consists of several small debts. ‘Gypsy plays Kurd dances’ ( Çingene çalar Kürt oynar ): a place where there is a lot of commotion and noise. ‘Gypsy tent’ ( Çingene çergesi ) (metaphorically): a dirty and poor place. ‘Gypsy wedding’ ( Çingene düğünü ): a crowded and noisy meeting. ‘Gypsy fight’ ( Çingene kavgası ): a verbal fight in which vulgar language is used. ‘Gypsy money’ ( Çingene parası ): coins. ‘Gypsy pink’ ( Çingene pembesi ): pink. ‘Gypsy language’ ( Çingenece ): language used by Gypsies. ‘Gypsiness’ ( Çingenelik ): 1. being a Gypsy 2. (metaphorically) being miserly or greedy. ‘Becoming a Gypsy’ ( Çingeneleşmek ): displaying miserly behaviour.”

29. In the applicant’s opinion, the entries regarding the Gypsy community had negative, discriminatory and prejudiced connotations. The

applicant further submitted that the Ministry of Education and the Turkish Language Society had amended their dictionaries at his request, and likewise asked the Language Association to correct the above-mentioned definitions and to remove any discriminatory expressions from the dictionaries. He received no reply to his letter.

30. Subsequently, on 15 July 2002 the applicant sent a further letter to the Language Association, repeating his request. He added that he would bring a case against the Association if his request was not granted by 20 August 2002.
31. On 16 April 2003 the applicant brought proceedings in the Ankara Civil Court of General Jurisdiction against the Language Association, requesting that the above-mentioned definitions and expressions be removed from the dictionaries. The applicant also requested compensation for the non-pecuniary damage he had sustained on account of the expressions contained in the dictionaries. In that connection he alleged that the dictionary definitions constituted an attack on his identity as a Roma/Gypsy and an insult to him personally.
32. In its submissions in reply, the Language Association maintained, inter alia , that the definitions and expressions contained in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further submitted that the dictionaries contained expressions and definitions that were commonly used in society and that there were other similar expressions in Turkish which concerned Albanians, Jews and Turks.
33. On 16 July 2003 the Ankara Civil Court dismissed the applicant’s case. It held that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further noted that there were similar expressions in Turkish concerning other ethnic groups, which appeared in dictionaries and encyclopaedias.
34. The applicant appealed. On 15 March 2004 the Court of Cassation upheld the judgment of 16 July 2003.

II. RELEVANT DOMESTIC LAW

A. Civil Code

35. Article 24 of the Civil Code reads as follows: “Any person whose personal rights are unlawfully infringed may apply to a judge for protection against all those causing the infringement. An infringement is unlawful unless it is justified by the consent of the person whose rights have been infringed or is made necessary by an overriding private or public interest or by law.”

equipping them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [the] material they [used]”.

THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

40. The applicant alleged that the book The Gypsies of Turkey and the dictionaries referred to in paragraphs 26 to 28 above contained expressions and definitions which offended his Roma/Gypsy identity.
41. The Government disputed this claim.

A. As to whether the applications should be examined under Article 8 or under Article 14 of the Convention taken in conjunction with Article 8

42. The Grand Chamber observes that the Chamber examined the applicant’s complaints under Article 14 of the Convention taken in conjunction with Article 8. These provisions read as follows:

Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 “The enjoyment of the rights and freedoms set forth in [the] 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.”

43. The Grand Chamber reiterates that the Court is the master of the characterisation to be given in domestic law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). Discrimination for the purposes of Article 14 of the Convention means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. There will be no objective and reasonable justification if the difference in treatment does not pursue a “legitimate aim” or if there is not a reasonable relationship of

proportionality between the means employed and the aim sought to be realised (see, amongst many other authorities, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).

44. The Court observes that discrimination on account of, inter alia , a person’s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII, and Timishev v. Russia , nos. 55762/ and 55974/00, § 56, ECHR 2005-XII). The Court further notes that as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority. As the Court has noted in previous cases, they therefore require special protection (see D.H. and Others , cited above, § 182).
45. The Court observes that in the present case the applicant, who is of Roma origin, argued that a book and two dictionaries that had received government funding included remarks and expressions that reflected anti- Roma sentiment. He considered that these statements constituted an attack on his Roma identity. However, the Court observes that 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 (see, regarding education, ibid., §§ 175-210; regarding housing, Chapman v. the United Kingdom [GC], no. 27238/95, § 73, ECHR 2001-I; and, regarding elections, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 45, ECHR 2009). Accordingly, the main issue in the present case is whether the impugned publications, which allegedly contained racial insults, constituted interference with the applicant’s right to respect for his private life and, if so, whether this interference was compatible with the said right. The Court will therefore examine the present case under Article 8 of the Convention only.

they consider, without having been directly affected by it, that it may contravene the Convention (see Burden , cited above, § 33, and Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).

51. Consequently, the existence of a victim who was personally affected by an alleged violation of a Convention right is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid and inflexible way (see Bitenc v. Slovenia (dec.), no. 32963/02, 18 March 2008). The question of whether the applicant can claim to be a victim of the alleged violation of the Convention is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia , no. 59498/00, § 30, ECHR 2002-III).
52. The Court reiterates that it interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI), even though the Court should have regard to the fact that an applicant was a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009).
53. The Court observes that in the present case the applicant, who is of Roma origin, complained about remarks and expressions which allegedly debased the Roma community. It is true that the applicant was not personally targeted; he could, however, have felt offended by the remarks concerning the ethnic group to which he belonged. Furthermore, there was no dispute in the domestic proceedings regarding the applicant’s standing before the court. Hence, the merits of his case were examined at two levels of jurisdiction.
54. In view of the foregoing and given the need to apply the criteria governing victim status in a flexible manner, the Court accepts that the applicant, although not directly targeted by the contested passages, can be considered a victim of the facts complained of within the meaning of Article 34 of the Convention. It therefore rejects the Government’s preliminary objection that the applicant lacked victim status.

C. The merits of the case

1. Application no. 4149/

(a) The parties’ submissions

(i) The applicant

55. The applicant alleged that certain passages of the book The Gypsies of Turkey contained remarks and expressions which debased the Roma community. In particular, he referred to the chapter of the book which provided information about the lifestyle of the Roma people living in certain cities in Turkey, and in particular their alleged involvement in illegal

activities (see paragraph 12 above). According to the applicant, the author’s overall intention was not important, as these passages in themselves constituted a clear insult to the Roma community. He also expressed his dissatisfaction with the domestic court decisions dismissing his compensation request.

(ii) The Government

56. The Government stated that the book had been published by the Ministry of Culture on the recommendation of the publications advisory board. According to the report of the advisory board, the book in question was a piece of comparative academic research which had been prepared as a contribution to ethnic studies in Turkey. It gave information about the origins of the Roma community, their language, traditions, beliefs, festivals, cuisine, clothing, music and living conditions. The Government stated that, following the applicant’s objection, the book had been examined once again by a number of university professors, who reported that it did not include any insulting statements. Finally, the Government submitted that the Ministry of Culture was working hard to promote Roma culture and traditions.

(b) The Chamber judgment

57. The Chamber held that although the passages and remarks cited by the applicant, read on their own, appeared to be discriminatory and insulting, when the book was examined as a whole it was not possible to conclude that the author had acted in bad faith or had any intention to insult the Roma community. The Chamber had particular regard to the conclusion to the book, in which the author had made it clear that The Gypsies of Turkey 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 Chamber concluded that the author had referred to the biased portrayal of the Roma in order to demonstrate the perception of the Roma community by the public. As a result, the Chamber found no violation of the applicant’s rights as protected by the Convention.

(c) The Court’s assessment

(i) Applicability of Article 8 of the Convention

58. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. The Court further reiterates that it has accepted in the past that an individual’s ethnic identity must be regarded as another such

(ii) Compliance with Article 8 of the Convention

(α) General principles

62. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, amongst many other authorities, Keegan v. Ireland , 26 May 1994, § 49, Series A no. 290; Botta v. Italy , 24 February 1998, § 33, Reports of Judgments and Decisions 1998-I; and Gurguenidze v. Georgia , no. 71678/01, § 38, 17 October 2006).
63. In cases like the present one where the complaint is that rights protected under Article 8 have been breached as a consequence of the exercise by others of their right to freedom of expression, due regard should be had, when applying Article 8, to the requirements of Article 10 of the Convention (see, for instance and mutatis mutandis , Von Hannover v. Germany , no. 59320/00, § 58, ECHR 2004-VI). Thus, in such cases the Court will need to balance the applicant’s right to “respect for his private life” against the public interest in protecting freedom of expression, bearing in mind that no hierarchical relationship exists between the rights guaranteed by the two Articles (see Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010).
64. In this context the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10 of the Convention, 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 pluralism, tolerance and broadmindedness without which there is no democratic society (see, amongst many authorities, Handyside v. the United Kingdom , 7 December 1976, § 49, Series A no. 24, and Reinboth and Others v. Finland , no. 30865/08, § 74, 25 January 2011). This freedom is subject to the exceptions set out in Article 10 § 2 which must, however, be strictly construed. The need for any restrictions must therefore be established convincingly (see, for example, Lingens v. Austria , 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
65. Under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether an interference with the right to freedom of expression was “necessary in a democratic society”. However, this margin goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see Tammer v. Estonia , no. 41205/98, § 60,

ECHR 2001-I; Peck v. the United Kingdom , no. 44647/98, § 77, ECHR 2003-I; and Karhuvaara and Iltalehti v. Finland , no. 53678/00, § 38, ECHR 2004-X). The Court’s task in exercising its supervision is not to take the place of the national authorities but rather to review, in the light of the case as a whole, the decisions that they have taken pursuant to their margin of appreciation (see Petrenco v. Moldova , no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco v. Spain , no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010).

66. In similar cases the Court therefore attached significant weight to the fact that the domestic authorities had identified the existence of conflicting rights and the need to ensure a fair balance between them (see, for instance and mutatis mutandis , Tammer , cited above, § 69; White v. Sweden , no. 42435/02, § 27, 19 September 2006; Standard Verlags GmbH v. Austria (no. 2) , no. 21277/05, § 52, 4 June 2009; Lappalainen v. Finland (dec.), no. 22175/06, 20 January 2009; and Papaianopol v. Romania , no. 17590/02, § 30, 16 March 2010).
67. If the balance struck by the national judicial authorities is unsatisfactory, in particular because the importance or the scope of one of the fundamental rights at stake was not duly considered, the margin of appreciation accorded to the decisions of the national courts will be a narrow one. However, if the assessment was made in the light of the principles resulting from its well-established case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts, which consequently will enjoy a wider margin of appreciation (see MGN Limited v. the United Kingdom , no. 39401/04, §§ 150 and 155, 18 January 2011, and Von Hannover v. Germany (no. 2 ) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).
68. All of this presupposes that an effective legal system was in place and operating for the protection of the rights falling within the notion of “private life”, and was available to the applicant (see Karakó v. Hungary , no. 39311/05, § 19, 28 April 2009). This must also be examined by the Court.

(β) Application of these principles to the present case

69. In the present case the domestic courts were called upon to strike a fair balance between the applicant’s rights under Article 8 of the Convention as a member of the Roma community and the freedom of the author of the book in issue to carry out academic/scientific research on a specific ethnic group and publish his findings. The applicant claimed that the book, and in particular the chapter providing information about the living conditions of Roma in different cities of Turkey, constituted an insult towards the Roma community. In dismissing this claim at two levels of jurisdiction the Turkish courts relied, inter alia , on a report prepared by