Five lessons I learned from my own litigation

27 July 2015

By Sinem Hun

^{External Legal Consultant in Turkey, ERRC}

Your blogger v the Haters

It was a cold November night in 2012 when a close friend called me and said: “look at the internet”. At that time, I was in London and doing my masters in human rights after two years of field experience as an activist lawyer in Turkey, mainly working on LGBTI issues. Before leaving Turkey, I had been dealing with how to litigate hate speech, a problem which is still prevalent in nearly each sector and institution in Turkey.

In 2011 the shampoo company Biomen chose Hitler as the ‘face’ to promote their product. In television advertisements Hitler was seen to declare “those calling themselves men should use Biomen!” I was extremely disturbed by this advertisement and made a complaint to the public prosecutor on the ground of “hate speech, praising criminality and humiliation on the basis of gender”. At the same time, some leading figures of the Jewish community in Turkey made an official complaint before the public prosecutor on similar grounds. The company decided to withdraw the advertisement after huge protests. However, after two months, the complainants were notified that the public prosecutor had decided not to file a criminal lawsuit since the act fell within the limits of “freedom of expression”. We did not give up and challenged this decision before the higher domestic court. Unfortunately, after three months the court declared its final decision that there was no element of crime in the suspects’ actions.¹

The call from my friend on that November night was connected to this story: A radical Islamic newspaper learned that we had lost the case and published a piece claiming that leading Jewish figures and I had relations with terrorist groups, and on top of that, I was the “perverts’ lawyer”, working with LGBTI organisations. This defamation provided me another basis to litigate. Since I was in London, I issued a power of attorney to one of my colleagues to act on my behalf. However, the legal action we took did not succeed: the Turkish legal authorities did not change their stance and found no rights violation; apparently calling someone the “perverts’ lawyer” falls within the limits of the freedom of expression. 

I did extensive research on hate speech, which is not explicitly recognized in the Turkish Criminal Code, and then lodged an application before the Constitutional Court. After waiting one year, in 2014 the Court made a historic decision on hate speech, recognising this notion for the first time in Turkey.  

Lessons for Roma Rights

I wanted to give this example from another field since there is so little hate speech litigation in the Roma rights world, despite the fact that there is so much anti-Roma hate speech, and because I think the lessons from this LGBTI case are valuable for Roma rights activists.  Indeed, alongside this case, Turkey previously generated one of the most disappointing hate speech cases concerning Roma , in which 16 of the 17 judges in the Grand Chamber of the European Court of Human Rights found that publishing racist stereotypes in dictionaries and textbooks did not violate the rights of Roma.

Here are five important points that I think will help us make sure that the next big hate speech case concerns Roma rights:

1. Do not give up: Domestic court decisions are not bright at all in terms of assessing the human rights of minorities. Even, I would say, this is normal and expected in most cases.  The best Roma rights cases all involved losses at earlier stages: even D.H. and others v Czech Republic and Orsus and others v Croatia, key school segregation cases, were lost at the Chamber, only to be reversed by the Grand Chamber.
2. Take a chance on something that doesn’t look or feel strategic: In strategic litigation, you generally predict and plan some steps in advance before you act but cases are not often born “strategic”.  What may be more important is for them to be quirky and unexpected: who thought the biggest LGBTI rights case in Turkey would be taken by a lawyer based in London defending herself against a newspaper article? Do not overlook opportunities for something great to happen, and take a chance.
3. In some places, rights-based strategic litigation starts after you have lost a few times: We lawyers or activists are sometimes very focused on getting a quick “victory” from domestic courts. However, I think, the real strategy sometimes only begins after you lose the case at domestic level; indeed, you often lose cases in unexpected ways that make them even more exciting as you move forward, because they demonstrate not only some discriminatory structure in society, but serious flaws in the national judiciary. 
4. Do research and collaborate: Pay attention that your written petition submitted to the court is strong and well-evidenced. Do not be shy to seek for help from your colleagues or experts if you want to add dimension to one of your important claims.  Your case should reflect the bigger dimension of what you are attacking. For example: collecting data on school segregation of Roma children or on the violation of housing rights of Roma people needs collaborative work. 
5. Use media and other channels to make your cause visible: I think this is one of the crucial parts of the strategic litigation. Judicial actors, such as prosecutors or judges may seem to you reluctant and unaware of what is published or has appeared in the media but actually they are not! Use media as much as you can (but always with a view to publicising the cause, and not yourself!).

Endnote:

¹ Unfortunately, I could not apply to the Court of Consititution because of the lack of “current and personal link with the violation” and could not convince either one of the other comp.