CYIL vol. 10 (2019)

HARALD CHRISTIAN SCHEU CYIL 10 ȍ2019Ȏ which the state should rather support tolerance. Beyond this somewhat cryptic conclusion the ECtHR did not address the specific links between the use of stereotypes and the prohibition of discrimination under the ECHR. In the case of Aksu v. Turkey, 25 the Court had to deal with an academic publication, which was funded by the Turkish government and presented Roma in a degrading and offensive manner, e.g. as thieves, beggars, prostitutes, and polygamists. Although the Chamber of the ECtHR admitted that the study, aimed at a comparative analysis of the socio-economic living conditions of Roma in Turkey, contained examples of negative stereotypes about Roma, it pointed at the fact that the author of the study, in this regard, merely quoted from statements of other persons and tried to correct the prejudices. Moreover, the author explicitly emphasized that Roma must be respected. With the closest majority of four to three votes, the Chamber concluded that the Turkish authorities did not violate the prohibition of discrimination in conjunction with the right to respect for private life. On the contrary, the three dissenting judges pointed out that stereotypes and prejudices are dangerous regardless of the intent of the author. They did not agree to the conclusion that negative statements of this kind should be understood in the context of the whole book. The case continued before the Grand Chamber of the ECtHR which addressed the issue of stereotypes in its judgment of March 2012. After recalling that ethnic identity constitutes an important part of private life within the meaning of Article 8 of the ECHR, the Grand Chamber stated that any negative stereotype against a particular group that reaches a certain level of intensity may affect the perception of group identity and the feelings of self-confidence of the group members. In this sense, stereotypes have a clear effect on the right to respect the private life of minority members. However, in the case of Aksu v. Turkey , a clear majority of sixteen judges concluded that Article 8 of the ECHR had not been infringed. It is somewhat striking that the Grand Chamber did not examine whether there had been an infringement of the prohibition of discrimination within the meaning of Article 14 of the ECHR. Only one dissenting judge, coincidentally from Armenia, stated that even the academic context in which the publication originated could not justify statements offending the dignity of members of the minority. She concluded her dissenting opinion by appealing to the ECtHR to end the stereotyping of the Roma. In another case, the ECtHR dealt with stereotypes of people with HIV who, in some European countries, are perceived as persons with disabilities. 26 The complaint was lodged in 2010 by Mr Kiyutin, a citizen of Uzbekistan, who was living in Russia together with his Russian wife and their common child. Mr Kiyutin’s request for a residence permit was rejected by the Russian authorities due to the fact that Mr Kiyutin was HIV positive. The Chamber of the ECtHR held unanimously that Russia had violated Mr Kiyutin’s right to private life under Article 8 ECHR in connection with the prohibition of discrimination under Article 14 of the ECHR. The Court pointed out that the state should be particularly cautious when dealing with groups that, in the past, have been subject to prejudice and social exclusion. According to the ECtHR, a legal regulation that does not allow an individual approach to concrete cases has to be considered a legislative stereotype. The Court held that

25 Application No. 4149/04 a 41029/04. 26 Kiyutin v. Russia. Application No. 2700/10,

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