The case "TBB-Turkish Union of Berlin v. Germany". The opinion of the Committee dated February 26, 2013. Message No. 48/2010.
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Germany.
The Committee considered that Mr. S.'s statements amounted to the dissemination of ideas based on racial superiority or hatred and contained elements of incitement to racial discrimination within the meaning of article 4 (a) of the Convention on the Elimination of All Forms of Racial Discrimination. However, following the position that Mr. S.'s statements did not amount to incitement to racial hatred and could not disrupt public order, the State party failed to comply with its obligation to conduct an effective investigation into the alleged act of racial discrimination. Violations of the Convention have been committed.
As follows from the text of the Opinion, the applicant claimed that he was a victim of a violation of certain provisions of the Convention, since the State party did not protect him on the basis of its Criminal Code from racist discriminatory and insulting statements by Mr. S. directed against the applicant, who was a representative of a group of people of Turkish origin of the group.
The Committee's legal position: For the purposes of article 4 of the Convention, it is not enough to state that acts of racial discrimination are punishable de jure. It is also necessary to ensure the effective application of criminal laws and other legislative provisions prohibiting racial discrimination by the competent national courts and other State institutions. This obligation is implied by article 4 of the Convention, according to which States parties undertake to take immediate and positive measures aimed at eliminating all incitement to racial discrimination or acts of such discrimination. It is also reflected in other provisions of the Convention, such as article 2, paragraph 1 (d), which requires States to prohibit and end racial discrimination using all appropriate means, and article 6, which guarantees everyone effective protection and remedies against any acts of racial discrimination (paragraph 12.3 of the Opinion).
The Committee recalls that its role is not to review the interpretation of facts and national laws by national authorities, except in cases where the relevant decisions are manifestly arbitrary or amount to a denial of justice (paragraph 12.5 of the Opinion).
The Committee recalls its previous decisions and reiterates that the exercise of the right to freedom of expression entails special duties and obligations, in particular the obligation not to disseminate racist ideas. It also notes that article 4 of the Convention enshrines the State party's obligation to protect the population from incitement to racial hatred, as well as from acts of racial discrimination committed as a result of the dissemination of ideas based on racial superiority or hatred (paragraph 12.7 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The question before the Committee was whether the State party had fulfilled its positive obligation to take effective measures with regard to the reported allegations of racial discrimination, given the extent to which it had investigated the complainant's complaint in accordance with paragraphs 130 and 185 of the German Criminal Code. Paragraph 130 of the Criminal Code criminalizes any form of expression that may disrupt public order as a result of incitement to hatred against certain groups of the population or calls for violent or arbitrary actions against them; or as a result of encroachment on the human dignity of others, leading to insult, malicious denigration or discredit of groups of the population. It also criminalizes incitement to hatred against groups of the population or any national, racial or religious group or group differing in its customs, calls to commit violent or arbitrary acts against them, or attacks on the human dignity of others, leading to insult, malicious denigration or discredit of any groups of the population or one of the the above-mentioned groups. Paragraph 185 of the Criminal Code criminalizes insults (paragraph 12.2 of the Opinion).
The Committee took note of the applicant's claim that Mr. S.'s statements, published in Letre International magazine No. 86 (2009), constituted discrimination against the applicant and members of TBB-Turkish Union of Berlin, who are persons of Turkish origin, since the Turkish population was represented as a population group that lives at the expense of the State and who, in S.'s opinion, should not have the right to reside in the territory of the State party, as well as the fact that the State party has not provided protection against such discrimination. It also took note of the applicant's argument that Mr. S.'s statements had led to public vilification and humiliation of Turks and Muslims in general. The Committee further took note of the complainant's allegations that the absence of criminal prosecution of Mr. S. amounted to a violation by the State party of articles 2, paragraph 1 (d), 4 (a) and 6 of the Convention, as there was a narrow interpretation of domestic law. The Committee noted that the State party did not endorse Mr. S.'s opinion, but at the same time argued that the provisions of the German Criminal Code sufficiently reflected its obligations to ensure effective legal sanctions to combat incitement to racial discrimination. The authorities of the State party considered that Mr. S.'s statements were protected by the right to freedom of expression and did not amount to incitement, nor did they classify any groups of the population as inferior. The Committee drew attention to the State party's argument that the decisions of its authorities responsible for criminal prosecution were not manifestly arbitrary, nor did they amount to a denial of justice, and that there was no evidence of an increased risk for the complainant to become victims of criminal acts in the future (paragraph 12.4 of the Opinion).
The Committee should have considered whether Mr. S.'s statements fell into any category of prohibited statements referred to in article 4 of the Convention, and if so, whether those statements were subject to the "due diligence" provision on freedom of expression, as well as whether they were whether the decision not to prosecute Mr. S. was manifestly arbitrary or amounted to a denial of justice (paragraph 12.5 of the Opinion).
The Committee took note of the content of Mr. S.'s statements concerning the Turkish population of Berlin and noted, in particular, that he stated that a significant part of the Turkish population does not perform any productive function, except for the trade in fruits and vegetables, that they cannot and do not want to integrate into German society and encourage a collective mentality that it is aggressive and inherited from the ancestors. To characterize the Turkish population and other immigrant groups, Mr. S. used concepts such as productivity, intelligence and integration. While he used these properties in a positive manner in relation to some immigrant groups, such as Eastern European Jews, however, in relation to the Turkish population, he used them in a negative sense. He claimed that the Turks were invading Germany in the same way that the Kosovars had invaded Kosovo: due to the increased birth rate, that he would not mind if it were Eastern European Jews, whose IQ is about 15% higher than that of the Germans. Mr. S. He stated that he is not obliged to accept anyone who lives at the expense of the state and rejects the same state, who does not make any effort to give their children an acceptable education, and who only produces girls with a headscarf on their heads, and claimed that his considerations are fair to 70% of the Turkish population who lives in Berlin. In addition, Mr. S. also created an epithet to express his ideas about the inferiority of the Turkish population and said that among other groups of the population, including Germans, "one can see the "Turkish" problem." He also stated that he would ban the influx of migrants in general, with the exception of highly qualified people, and would stop providing social assistance to immigrants. The Committee considered: The above-mentioned statements contained ideas of racial superiority, excluding respect for the human person and reflecting generalized negative characteristics of the Turkish population within the meaning of article 4 of the Convention, and also constituted incitement to racial discrimination in order to deprive this population of access to social assistance and aimed at introducing a general ban on the influx of immigrants, with the exception of highly qualified persons (paragraph 12.6 of the Opinion).
Having characterized Mr. S.'s statements as prohibited statements within the meaning of paragraph 4 of the Convention, the Committee had to consider whether the State party's view that these statements were protected by the "due diligence" provision on freedom of expression was correct (paragraph 12.7 of the Opinion).
While recognizing the importance of freedom of expression, the Committee considered that Mr. S.'s statements amounted to the dissemination of ideas based on racial superiority or hatred and contained elements of incitement to racial discrimination within the meaning of article 4 (a) of the Convention. By focusing on the fact that Mr. S.'s statements did not amount to incitement to racial hatred and could not disrupt public order, the State party failed to comply with its obligation to conduct an effective investigation into whether Mr. S.'s statements were they are equivalent to spreading ideas based on racial superiority or hatred. The Committee drew attention to the fact that the criterion of violation of public order, which is taken into account when assessing whether statements reach the threshold of dissemination of ideas based on racial superiority or hatred, does not adequately reflect in national legislation the obligation of the State party enshrined in article 2 of the Convention, in particular because neither article 2 nor Article 4 of the Convention does not contain such a criterion (paragraph 12.8 of the Opinion).
The Committee's conclusions: the lack of an effective investigation of Mr. S.'s allegations by the State party indicated a violation of articles 2, 4 and 6 of the Convention (paragraph 12.9 of the Opinion).