CONVICTION FOR DENYING THE ARMENIAN “GENOCIDE” VIOLATES ARTICLE 10
Press Association / Media Lawyer
January 14, 2014 Tuesday
In Perincek v. Switzerland, the European Court of Human Rights ruled
on December 17, 2013 , by five votes to two, that Switzerland had
violated Dogu Perincek’s right to freedom of expression by convicting
him for publicly denying the existence of a genocide against the
Armenian people.
On several occasions, Perincek – at the time chairman of the
Turkish Workers’ Party – had described the Armenian genocide as
“an international lie”. He had particularly insisted that whatever
massacres had taken place did not meet the definition of genocide
under international law.
The Swiss courts found Perincek guilty of racial discrimination,
ruling that the Armenian genocide, like the Jewish genocide, was
a proven historical fact. The Swiss courts found that Perincek’s
motives for denying that the Ottoman Empire had perpetrated the crime
of genocide against the Armenian people were of a racist tendency
and did not contribute to any historical debate.
In its judgment, the European Court first found that Perincek had not
abused his rights within the meaning of Article 17 of the Convention,
which prohibits activities aimed at the destruction of others’ rights
and freedoms. The Court underlined that the free exercise of the
right to openly discuss questions of a sensitive and controversial
nature was one of the fundamental aspects of freedom of expression
and distinguished a tolerant and pluralistic democratic society from
a totalitarian or dictatorial regime.
The Court emphasised that the limit beyond which comments may engage
Article 17 lay in the question whether the aim of the speech was to
incite hatred or violence (§ 52). According to the Court, rejecting the
legal characterisation as “genocide” of the 1915 events was not such as
to incite hatred against the Armenian people. The Court was therefore
of the opinion that Perincek had not abused his right to freedom of
expression in a way prohibited by Article 17 of the Convention (§ 54).
>From the perspective of Article 10 of the Convention, the Court
agreed with the Swiss courts that Perincek could not have been unaware
that by describing the Armenian genocide as an “international lie”,
he was exposing himself on Swiss territory to a criminal sanction
“prescribed by law”.
The Court also found that the aim of the applicant’s conviction was
to protect the rights of others, namely the honour of the relatives
of victims of the atrocities perpetrated by the Ottoman Empire against
the Armenian people from 1915 onwards.
The crucial question was whether the prosecution and conviction of
Perincek was “necessary in a democratic society”.
In answering that question, the Court first stated that its standard
principle that freedom of expression included information and ideas
which could offend, shock or disturb was also applicable within the
domain of an open debate amongst historians (§ 102).
The Court found that discussion of the Armenian “genocide” was of great
interest to the general public and that Perincek had engaged in speech
of a historical, legal and political nature which was part of a heated
debate. As a result, the Court held, the margin of appreciation of the
Swiss authorities to decide whether the interference with Perincek’s
freedom of expression was justified and necessary in a democratic
society was narrow (§§ 112-113).
However, according to the Court, it was still very difficult to
identify a general consensus about the qualification of the Armenian
“genocide”. Furthermore, it insisted, the notion of “genocide” was a
precisely defined and narrow legal concept, difficult to substantiate.
Finally, historical research was by definition open to discussion and
a matter of debate, without necessarily leading to final conclusions
or absolute truths.
In the remainder of its reasoning, the Court took the view that the
Swiss authorities had failed to show how there was a social need in
Switzerland to punish an individual for racial discrimination on the
basis of declarations challenging only the legal characterisation as
“genocide” of acts perpetrated on the territory of the former Ottoman
Empire in 1915 and the following years.
According to the Court such a pressing social need did exist regarding
the denial of the Holocaust, but not with regard to the Armenian
“genocide” (§ 119).
The Court concluded that Perincek’s conviction was not dictated by a
“pressing social need”. It specifically pointed out that it had to
ensure that any imposed sanction would not constitute censorship,
which would lead people to refrain from expressing criticism as part
of a debate of general interest. Under the current circumstances, the
Court considered the criminal conviction of Perincek to be unjustified,
in violation of Article 10.
Finally, it is not surprising that the judgment on the controversial
issue of the (denial of the) Armenian genocide was not unanimous.
Indeed, Judges Vucinic (Montenegro) and Pinto de Albuquerque (
Portugal ) expressed a joint partly dissenting opinion in which they
argued that the conviction of Perincek did not amount to a violation
of Article 10 of the Convention.
Comment
The refusal by the European Court to consider Perincek’s statements as
“abusive speech” under Article 17 of the Convention reflects legitimate
concerns about the inherent dangers of applying the so-called abuse
clause in cases of freedom of political expression and debate on
matters of public interest.
It is indeed preferable that the application of Article 17 in freedom
of expression cases remains very exceptional (§ 47). One can even
argue that applying the abuse clause to resolve free speech disputes
is undesirable in all circumstances (see H. Cannie en D. Voorhoof,
“The Abuse Clause and Freedom of Expression in the European Human
Rights Convention : an Added Value for Democracy and Human Rights
Protection?” NQHR Vol. 29/1, 54-83, 2011), but the European Court
clearly does not share that approach, yet.
Still, the Court appears to be willing to accept that a mere denial of
historical facts, whether they are a genocide, a crime against humanity
or a massacre, can be a sufficient justification for a restriction on
the right of freedom of expression and eventually for the application
of Article 17.
Indeed, the Court considers it “important” that Perincek has not
denied the facts of the Armenian deportations and massacres, and that
he was only denying the legal qualification to be given to these facts
(§ 51). One can however question the relevance of this consideration,
as the Court’s position in the next paragraph of its judgment clearly
demonstrates that a denial as such of a genocide or crimes against
humanity is not excluded from the protection under Article 10 (§ 52).
Furthermore, the Court rightly pointed out that this case is not about
the legal, historical or political recognition of the existence of
the Armenian “genocide”, but only about the necessity of the criminal
conviction of Perincek by the Swiss authorities because of the content
of certain speeches Perincek held in Switzerland . It is certainly
not up to the European Court to decide this issue.
The essence of the message of the Court’s judgment is indeed
that the legal, political and historical discussion about facts
situated in history should be open and that all opinions discussing
or interpreting these facts, including provocative, offensive or
disrespectful opinions, should in principle be protected by Article
10 of the Convention.
But at a certain point in its legal reasoning (§§ 114-116), the
Court gave the impression that it is because of the lack of a general
consensus about whether the massacres and deportations in Armenia in
1915 and the years after constituted a genocide, that the denial by
Perincek of the existence of the Armenian genocide was acceptable.
The Court did seem to be aware that accepting such an approach would
risk installing certain historical truths by law, based on a general
consensus, which can then not be denied or critically and vehemently
discussed. Therefore the Court clarified that it is doubtful anyhow
whether on such issues there can be ever a general consensus (§ 117,
cited above).
The Court nevertheless accepted one exception, namely the
criminalisation of denial of the Holocaust (§ 118), since according
to the Court there is a general consensus about the Holocaust.
Accepting that the denial of the Holocaust is as such a justifiable
restriction on freedom of expression contrasts with the approach
expressed by the UN HRC in its General Comment nr. 34. In this Comment,
interpreting the actual scope, impact and application of the right
to freedom of opinion and expression under 19 Article ICCPR, the HRC
opposed “memory-laws” explicitly (§ 49).
Although the Court referred to and even quoted from General Comment
nr. 34 in its judgment, it missed the opportunity to elaborate on
this approach. It would indeed have been preferable if the Court
had made clear that the criminal prosecution and conviction for
denial of historical facts, also of those on which there is general
consensus like the Holocaust, is only justified from the perspective
of Article 10 in so far as the denial of those facts at the same time
intentionally incites to hatred, discrimination or violence against
a person or a group of persons. What can be criminalised from the
perspective of Article 10 is incitement to hatred and violence, while
the contestation or denial itself of historical facts should not,
and should never be, defined as a criminal offence.
The judgment in this case will become final on March 17, 2014 ,
unless the case is referred to the Grand Chamber under Article 43 of
the Convention.
In some statements or preliminary reactions on the Court’s judgment it
is argued why the Swiss Government should request such a referral in
order to find Perincek’s conviction necessary in a democratic society.
I sincerely doubt if a judgment by the Grand Chamber could ever lead
to such an outcome in this case. If it would, it would certainly be
a sad day for freedom of expression in Europe .
:: Dirk Voorhoof is professor at Ghent University ( Belgium ) and
lectures European Media Law at Copenhagen University ( Denmark ). He is
also a Member of the Flemish Regulator for the Media and of the Human
Rights Centre at Ghent University . See also Freedom of Expression,
the Media and Journalists : Case Law of the European Court of Human
Rights, an e-book recently published by the European Audiovisual
Observatory ( Strasbourg ).
The judgment is only available in French.
From: Baghdasarian