Lesson 4: Cultural heritage and human rights

European Court of Human Rights

The provisions mostly invoked in relation to cultural rights are Article 8 (right to respect for private and family life) of the Convention, 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).

With regard to access to one’s cultural heritage, in the case of Catholic Archdiocese of Alba Iulia v.Romania, (no. 33003/03, 25 September 2012), which concerned the State’s failure, despite a Government regulation dating back to 1998, to return to their former owner, a catholic religious community, a library and a museum of great historical and cultural importance, the Court, when ruling on a violation of Article 1 of Protocol No.1, emphasized that the State’s prolonged failure to act and the uncertainty affecting the applicant for fourteen years with regard to the legal status of the property claimed by it was all the more unreasonable when account was taken of the cultural and historical importance of the assets in question.

Source: https://www.echr.coe.int/documents/research_report_cultural_rights_eng.pdf

With regard to access to a common cultural heritage, the Court developed its case-law on reconciling freedom of artistic expression and the protection of morals in the judgment of Akdaş v. Turkey. The case concerned the sentencing of a publisher to a heavy fine for the publication in Turkish of an erotic novel by Guillaume Apollinaire (dating from 1907) and seizure of all the copies of the book. The Court considered that the view taken by the States of the requirements of morality “frequently requires [them] to take into consideration the existence, within a single State, of various cultural, religious, civil or philosophical communities”.

It enshrined the concept of a “European literary heritage” and set out in this regard various criteria: the author’s international reputation; the date of the first publication; a large number of countries and languages in which publication had taken place; publication in book form and on the Internet; and publication in a prestigious collection in the author’s home country (La Pléiade, in France). The Court concluded that the public of a given language, in this case Turkish, could not be prevented from having access to a work that is part of such a heritage (§ 30).