Académique Documents
Professionnel Documents
Culture Documents
DIVISION DE LA RECHERCHE
Cultural rights in the case-law of the
European Court of Human Rights
SUMMARY
This report provides a selection of the Courts main jurisprudence in the context of cultural
rights. Although neither the Convention nor the Court explicitly recognise the right to
culture or the right to take part in cultural life, unlike other international treaties, the Courts
case-law provides interesting examples of how some rights falling under the notion of
cultural rights in a broad sense can be protected under core civil rights, such as the right to
respect for private and family life (Article 8 of the Convention), the right to freedom of
expression (Article 10) and the right to education (Article 2 of Protocol No. 1).
TABLE OF CONTENTS
INTRODUCTION...................................................................................................................... 4
I.
INTRODUCTION
1. This report illustrates the approach of the European Court of Human
Rights (hereafter the Court) in selected areas linked to the question of
cultural rights. The selection was made taking into account the most recent
case-law in this field. Although the European Convention does not
explicitly protect cultural rights as such (unlike other international human
rights treaties such as the International Covenant on Economic, Social and
Cultural Rights), the Court, through a dynamic interpretation of the different
Articles of the Convention, has gradually recognised substantive rights
which may fall under the notion of cultural rights in a broad sense. The
provisions mostly invoked in relation to cultural rights are Article 8 (right to
respect for private and family life), Article 9 (freedom of thought,
conscience and religion) and Article 10 (freedom of expression) of the
Convention, as well as Article 2 of Protocol No. 1 (right to education).
Another factor which may explain the growing importance of cultural rights
in the Courts case-law is the number of cases brought by persons or entities
belonging to national minorities, including cultural, linguistic or ethnic
minorities. This is particularly true concerning the right to maintain a
minority identity and to lead ones private and family life in accordance
with the traditions and culture of that identity. Although the Court does not
always rule in favour of cultural rights and cultural minorities, the key
principles it has established in its case-law provide a basis for future
litigation and development.
2. The following developments describe different areas of the Courts
case-law dealing with cultural rights, covering issues such as artistic
expression, access to culture, cultural identity, linguistic rights, education,
cultural and natural heritage, historical truth and academic freedom. These
areas are interconnected and it is sometimes difficult to separate one from
the other, especially as regards the rights inferred from freedom of
expression. Since this report does not aim to be exhaustive, it will refer to
the most important and recent case-law in the selected areas. Reference
should also be made to our report Aspects of Intercultural Dialogue in the
European Court of Human Rights case-law of 2007 (the Courts
contribution to the preparation of the White Paper on Intercultural
Dialogue1) and our more recent report on the Courts case-law on freedom
of religion, prepared in January 2011 for the Parliamentary Assembly of the
Council of Europe.2
1. Available from the website of the Council of Europe:
www.coe.int/t/dg4/intercultural/Publication_WhitePaper_ID_en.asp.
2. Available in French from the website of the European Court of Human Rights:
www.echr.coe.int (Case-Law / Case-Law Analysis / Research Reports).
I.
II.
ACCESS TO CULTURE
10
which obliged the individual to disclose, against his or her will, information
concerning an aspect of his or her religion or most personal convictions. Far
from recognising the right to have the Alevi religious identity recorded on
the identity card, the Court indicated that the deletion of the religion box
on identity cards could be an appropriate form of reparation of the violation
found ( 60).
17. Freedom of thought, conscience and religion, guaranteed by
Article 9 of the Convention, is indeed an important right for minorities to
maintain and preserve their identity, insofar as it protects manifestation of
belief or religion with others both in the private and public spheres, in
worship, teaching, practice and observance. Worship with others may be the
most obvious form of collective manifestation. Access to places of worship
and restrictions placed upon adherents ability to take part in services or
observances will give rise to Article 9 issues (see Cyprus v. Turkey [GC],
no. 25781/94, 241-247, ECHR 2001-IV: restrictions on freedom of
movement of Greek Cypriots living in northern Cyprus). The failure to
grant a religious community access to meat from animals slaughtered in
accordance with religious prescriptions may involve an interference with the
right to manifest ones religion in observance, within the meaning of Article
9 (Chaare Shalom Ve Tsedek v. France [GC], no. 27417/95, ECHR
2000-VII: ritual slaughter to provide Jews with meat from animals
slaughtered in accordance with religious prescriptions). The wearing of
religious symbols is also protected by the right to manifest ones religion,
although the Court has often recognised that State interferences in the form
of prohibitions or restrictions are justified in order to defend the principles
of secularism and gender equality (see concerning the ban on wearing the
Islamic headscarf at universities and schools Leyla ahin v. Turkey [GC],
no. 44774/98, 116, ECHR 2005-XI, and Dogru v. France, no. 27058/05,
72, 4 December 2008, where the Court found no violation of Article 9; see a
contrario Ahmet Arslan and Others v. Turkey, no. 41135/98, 23 February
2010): the Court considered that the criminal conviction of members of a
religious group for wearing a turban, black tunic and a stick in public places
outside a mosque amounted to a violation of Article 9).
18. Freedom of association, guaranteed by Article 11 of the Convention,
protects the right of persons belonging to minorities to form associations in
order to promote their culture and their minority consciousness. In the case
of Sidiropoulos and Others v. Greece (10 July 1998, Reports of Judgments
and Decisions 1998-IV), the Court dealt with the scope of protection
enjoyed by associations whose aim was to promote the culture of a
minority. The applicants claimed to be of Macedonian ethnic origin and
to have a Macedonian national consciousness. They decided to form a
non-profit association, called Home of Macedonian Civilisation. The
associations registration was refused by the national courts. The Court
found a violation of Article 11. It noted that the aims of the association were
11
exclusively to preserve and develop the traditions and folk culture of the
Florina region. Such aims appeared to the Court to be perfectly clear and
legitimate: the inhabitants of a region in a country are entitled to form
associations in order to promote the regions special characteristics, for
historical as well as economic reasons ( 44). The Court held that even
supposing that the founders of an association like the one in the case
asserted a minority consciousness, the Document of the Copenhagen
Meeting of the Conference on the Human Dimension of the CSCE (Section
IV) of 29 June 1990 and the Charter of Paris for a New Europe of
21 November 1990 which Greece had signed allowed them to form
associations to protect their cultural and spiritual heritage ( 44).4 In the
case of Gorzelik and Others v. Poland [GC] (no. 44158/98, 92,
17 February 2004), the Court underlined the importance of freedom of
association for persons belonging to national and ethnic minorities:
92. While in the context of Article 11 the Court has often referred to the essential
role played by political parties in ensuring pluralism and democracy, associations
formed for other purposes, including those protecting cultural or spiritual heritage,
pursuing various socio-economic aims, proclaiming or teaching religion, seeking an
ethnic identity or asserting a minority consciousness, are also important to the proper
functioning of democracy. For pluralism is also built on the genuine recognition of,
and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural
identities, religious beliefs, artistic, literary and socio-economic ideas and concepts.
The harmonious interaction of persons and groups with varied identities is essential
for achieving social cohesion. It is only natural that, where a civil society functions in
a healthy manner, the participation of citizens in the democratic process is to a large
extent achieved through belonging to associations in which they may integrate with
each other and pursue common objectives collectively.
In developing these principles, the Court has stated that the right to
express ones views through freedom of association and the notion of
personal autonomy underlie the right of everyone to express, in a lawful
context, their beliefs about their ethnic identity (see Tourkiki Enosi Xanthis
and Others v. Greece, no. 26698/05, 56, 27 March 2008).
19. Finally, freedom of assembly, as enshrined in Article 11 of the
Convention, also protects the right of persons belonging to minorities to
hold peaceful meetings, for instance in commemoration of certain historical
events to which they attach a particular significance (see Stankov and the
United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and
29225/95, ECHR 2001-IX).
4. See also Tourkiki Enosi Xanthis and Others v. Greece (no. 26698/05, 51, 27 March
2008), where the Court stated that even supposing that the real aim of the applicant
association had been to promote the culture of a minority in Greece (Muslim minority
of Thrace), this could not be said to constitute a threat to the territorial integrity of the
country or public order. It added that the existence of minorities and different cultures
in a country is a historical fact that a democratic society has to tolerate and even protect
and support according to the principles of international law ( 51).
12
13
the wide variety of linguistic origins of Turkish forenames. But the violation
was mostly based on the fact that Turkish law did not indicate clearly
enough the extent and manner in which the authorities use their discretion
when it comes to imposing restrictions on and rectifying forenames.
Conversely, in its more recent judgment Kemal Takn and Others v. Turkey
(nos. 30206/04 and others, 2 February 2010), the Court found no violation
of Article 8, since the refusal to have the applicants Turkish first names
changed to Kurdish names was based on the fact that the names they had
chosen contained characters which did not exist in the Turkish official
alphabet.
22. Article 8 of the Convention may also apply to the right of prisoners
to freedom of correspondence in their own language. In the case of Mehmet
Nuri zen and Others v. Turkey (nos. 15672/08 and others, 11 January
2011), the Court has recently found a violation of Article 8 on the ground
that there was no legal basis for the refusal to dispatch prisoners letters
written in Kurdish. With this judgment, the Court adds to its previous and
rather restrictive case-law on the issue. For instance, in Senger v. Germany
((dec.), no. 32524/05, 3 February 2009), the Court had taken the view that
the authorities decision to stop letters in Russian from being sent to an
inmate constituted an interference which was necessary for the prevention
of disorder and crime, taking into account the fact that both the applicant
and the authors of the letters had dual German and Russian nationality and
that there were no compelling reasons for them to write in Russian (see in
the same sense Bayban v. the Netherlands (dec.), no. 13600/02, 6 October
2005), which concerned the wish of a prisoner to use Kurmanc in written
and oral communication with close relatives in preference to Turkish).
23. Linguistic rights may also be protected under the right to freedom of
expression guaranteed by Article 10. For instance, in Ulusoy and Others
v. Turkey (no. 34797/03, 3 May 2007), the Court found that the ban on a
Kurdish production of a play in municipal buildings was in breach of
freedom of expression.
24. As regards linguistic rights in the context of education, Article 2 of
Protocol No. 1 (right to education) does not specify the language in which
education must be conducted in order that the right to education should be
respected (Case relating to certain aspects of the laws on the use of
languages in education in Belgium (merits), 23 July 1968, 3, Series A
no. 6). Furthermore, the right of parents to ensure such education in
conformity with their own religious and philosophical convictions, as
guaranteed by the second sentence of Article 2 of Protocol No. 1, does not
cover either linguistic preferences (Case relating to certain aspects of the
laws on the use of languages in education in Belgium, cited above, 6).
The Court therefore excluded the right to obtain education in the language
of ones choice ( 11):
14
15
27. In Demirba and Others v. Turkey ((dec.), nos. 1093/08 and others,
9 November 2010), the Court declared inadmissible the applications lodged
in a personal capacity by municipal councillors complaining about the
dissolution of the council for using non-official languages (among others,
Kurdish) in its activities and services. The Court did not examine the merits
of the complaint since it considered that the applications were incompatible
ratione personae, on the ground that neither local authorities nor any other
government bodies may lodge applications with the Court through the
individuals who make them up or represent them.6
28. The Court has recently communicated a case to the Turkish
Government which raises an interesting issue from the standpoint of
linguistic rights of candidates to parliamentary elections (Aydin and Others
v. Turkey, nos. 49197/06 and others, communicated on 9 March 2010). The
applicants were convicted for addressing the crowd in Kurdish during an
electoral campaign. The Court has communicated the case under Articles 10
(freedom of expression) and 14 (prohibition of discrimination) of the
Convention.
V.
RIGHT TO EDUCATION
29. The concepts of education and teaching were defined by the Court in
the case of Campbell and Cosans v. the United Kingdom (25 February 1982,
33, Series A no. 48) as follows: the education of children is the whole
process whereby, in any society, adults endeavour to transmit their beliefs,
culture and other values to the young, whereas teaching or instruction
6. According to the Courts case-law on Article 34 of the Convention, governmental
bodies, regional governments or municipalities do not have locus standi to lodge an
application with the Court. Article 34 circumscribes this right to persons, nongovernmental organisations and groups of individuals.
16
31. This approach was confirmed in the Kjeldsen, Busk Madsen and
Pedersen v. Denmark judgment of 7 December 1976 (Series A no. 23),
concerning sex education lessons organised in the Danish state schools and,
according to the applicants, offensive to the religious sentiments of some
parents ( 53):
It follows in the first place from the preceding paragraph that the setting and
planning of the curriculum fall in principle within the competence of the Contracting
States. This mainly involves questions of expediency on which it is not for the Court
to rule and whose solution may legitimately vary according to the country and the era.
In particular, the second sentence of Article 2 of the Protocol does not prevent States
from imparting through teaching or education information or knowledge of a directly
or indirectly religious or philosophical kind. It does not even permit parents to object
to the integration of such teaching or education in the school curriculum, for otherwise
all institutionalised teaching would run the risk of proving impracticable. In fact, it
seems very difficult for many subjects taught at school not to have, to a greater or
lesser extent, some philosophical complexion or implications. The same is true of
religious affinities if one remembers the existence of religions forming a very broad
17
33. The second sentence of Article 2 of Protocol No. 1 enjoins the State
to respect the right of parents to ensure such education and teaching in
conformity with their own religious and philosophical convictions. The
Court has been confronted with a wide range of situations concerning this
aspect of Article 2 of Protocol No. 1. For instance: sex education (Kjeldsen,
Busk Madsen and Pedersen, cited) or compulsory ethics classes (AppelIrrgang v. Germany (dec.), no. 45216/07, 6 October 2009) that offended
some parents religious sentiments. In other cases, there was the question of
religious teaching based on a Sunni interpretation of Islam clashing with
religious convictions of parents of Alevi faith (Hasan and Eylem Zengin
v. Turkey, no. 1448/04, 9 October 2007) or of religious teaching on
Christianity clashing with philosophical convictions of non-Christian
parents (Folger and Others v. Norway [GC], no. 15472/02, ECHR
2007-III). The test applied by the Court in all these cases is the following:
the State, in fulfilling the functions assumed by it in regard to education and
teaching, must ensure that information or knowledge included in the
curriculum is conveyed in an objective, critical and pluralistic manner. If
this is not the case, the State authorities are under an obligation to grant
children full exemption from the lessons in accordance with the parents
7. In that connection, the Court has also held that the right of access to higher education is
a civil right within the meaning of Article 6 of the Convention (right to a fair trial):
Emine Ara v. Turkey, no. 9907/02, 23 September 2008.
18
19
20
40. The Court has stressed a number of times the importance of the
protection of natural heritage in cases of property rights, while referring to
the larger notion of environment (see, for instance, the protection of forests
in Hamer v. Belgium, no. 21861/03, ECHR 2007-V, and Turgut and Others
v. Turkey, no. 1411/03, 90, 8 July 2008; or the protection of coastal areas
in Depalle v. France [GC], no. 34044/02, 81, 29 March 2010). In all these
cases, the protection of the environment or natural heritage was considered
to be a legitimate aim for the interference with the right to property.
However, the Court can also be confronted with the protection of natural
heritage and resources as a right vindicated by persons belonging to national
minorities or indigenous peoples as part of their right to peaceful enjoyment
of their possessions. For instance, in Hingitaq 53 and Others v. Denmark
((dec.), no. 18584/04, ECHR 2006-I), the applicants, members of the
Inughuit tribe in Greenland, complained that they had been deprived of their
homeland and hunting territories and denied the opportunity to use, enjoy
and control their land, as a consequence of their forced relocation following
the establishment of a US Air Base. Taking into account the compensation
given by the Danish courts for the eviction and loss of hunting rights, the
Court declared the complaint manifestly ill-founded.
21
42. The Court may also take into account the passage of time in
assessing whether the interference is compatible with freedom of
expression, for instance in cases concerning the actions of senior
government officials and politicians (see Monnat, cited above, 64:
historical report concerning Switzerlands position during Second World
War shown on a national television channel). The lapse of time means that it
is not appropriate to judge the expressions in the present with the same
degree of severity that might have been justified in the past. In applying
these principles, the Court has recently found a violation of Article 10 in
cases concerning the conviction of the publishers of a book describing
torture and summary executions in the Algerian War (Orban and Others
v. France, no. 20985/05, 15 January 2009), the conviction of a journalist
(who was subsequently killed) for denigrating Turkish identity by
expressing his views on the Turkish-Armenian conflict and the events of
1915 (Dink v. Turkey, nos. 2668/07and others, 14 September 2010), and the
obligation to publish a rectification of an article in a weekly paper in which
the applicant had criticised a third person for paying tribute to a former
Primer Minister who had been involved in the passing of anti-Semitic
legislation (Karsai v. Hungary, no. 5380/07, 1 December 2009).
43. Finally, the judgment Kenedi v. Hungary (no. 31475/05, 43, 26
May 2009), introduces a new aspect of the right to seek historical truth in
that the Court emphasises that access to original documentary sources for
legitimate historical research is an essential element of the exercise of the
right to freedom of expression. The case involved the refusal to grant a
historian access to documents concerning the communist era in Hungary (on
the functioning of the Hungarian State Security Service).
22
23
24
25
26