Perinçek v. Switzerland

Perinçek v. Switzerland is a 2013 judgment of the European Court of Human Rights concerning public statements by Doğu Perinçek, an ultranationalist political activist and member of the Talat Pasha Committee, who was convicted by a Swiss court for publicly denying the Armenian genocide.

Perinçek v. Switzerland
CourtEuropean Court of Human Rights
Decided15 October 2015
Citation(s)ECLI:CE:ECHR:2013:1217JUD002751008
Case history
Prior action(s)Chamber judgment 2013

A preliminary hearing on the appeal by Switzerland was held on 28 January 2015. The Grand Chamber ruled in favour of Perinçek on 15 October 2015, who has argued his right to freedom of expression.

The judgement was praised by some legal scholars for upholding freedom of speech. On the other hand, it was widely criticized for overlooking anti-Armenianism and making a double standard between the Holocaust and other genocides. Turkish nationalists praised the judgement and misrepresented it as a vindication of their claims that the Armenian genocide never happened.

Background
See also: Armenian Genocide denial

Doğu Perinçek is a Turkish political activist and member of the Talat Pasha Committee, an ultranationalist organization named after the main perpetrator of the Armenian Genocide. In order to "test" the Swiss law on genocide denial, he repeatedly called the Armenian Genocide of 1915 a "great international lie" during a trip to Switzerland.[1][2][3] He was found guilty of racial discrimination by a Swiss district court in Lausanne in March 2007. He was sentenced to 90 days imprisonment and fined 3000 Swiss francs.[4] At the trial, Perinçek denied the charge thus: "I have not denied genocide because there was no genocide."[5] After the court's decision, he said, "I defend my right to freedom of expression." Perinçek appealed the verdict. In December 2007, the Swiss Federal Court confirmed the sentence given to Perinçek.[6] Perinçek then appealed to the European Court of Human Rights.

Lower court judgment

In December 2013 the Lower Court of the European Court of Human Rights ruled by 5-2 that Switzerland had violated Doğu Perinçek's freedom of expression guaranteed by Article 10 of the European Convention on Human Rights.[7] It ruled that Perinçek had not abused his rights within the meaning of Article 17 of the Convention, which prohibits individuals using the rights of the Convention to seek the abolition or restriction of other individuals' rights guaranteed by the Convention. "The Court considers that the rejection of the legal characterisation of the events of 1915 was not in itself sufficient to amount to incitement of hatred towards the Armenian people", stated the court ruling. "The applicant has not abused his right to engage in open discussion of matters including those which are sensitive and likely to cause offence. The free exercise of this right is one of the fundamental aspects of freedom of expression and distinguishes a democratic, tolerant and pluralist society from a totalitarian or dictatorial regime." [8]

The Court pointed out that "it was not called upon to rule on the legal characterisation of the Armenian Genocide. The existence of a "genocide", which was a precisely defined legal concept, was not easy to prove. The Court doubted that there could be a general consensus as to events such as those at issue, given that historical research was by definition open to discussion and a matter of debate, without necessarily giving rise to final conclusions or to the assertion of objective and absolute truths."[9]

Appeal and final judgement by the Grand Chamber

After the ruling the government of Switzerland announced its decision to appeal the lower court's ruling. On 3 June 2014 the court accepted the appeal to move on to the Grand Chamber to clarify the scope available to Swiss authorities in applying the Swiss Criminal Code to combat racism.[10][11]

The first hearing took take place on 28 January 2015 with Perinçek represented by Professor Laurent Pech, head of Department of Law at Middlesex University in London, and Turkey represented as a third party by Prof Stefan Talmon, who is a professor of law at Oxford University.[12] Switzerland was represented by lawyer Frank Schürmann while Armenia was represented as a third party by Doughty Street Chambers led by Geoffrey Robertson QC and Amal Clooney. The Court's subsequent deliberations were held in private.[13] A video of the first hearing of the appeal can be found on the website of the European Court for Human Rights.

While being fully aware of the acute sensitivities attached by the Armenian community to the issue in relation to which the applicant spoke, the Court, taking into account the overall thrust of his statements, did not perceive them as a form of incitement to hatred or intolerance. It is stated multiple times in the Grand Chamber Judgment that the applicant did not express contempt or hatred for the victims of the events of 1915 and the following years. The Grand Chamber held, by ten votes to seven, that there had been a violation of Article 10 of the Convention[14] and ruled in favour of Perinçek on 15 October 2015.[7]

In a statement issued by Armenia's counsel, Geoffrey Robertson and Amal Clooney said they were pleased the Court had endorsed their argument on behalf of Armenia. The judgment did not dispute the fact of the Armenian genocide and recognised Armenians' right under European law to have their dignity respected and protected, including the recognition of a communal identity forged through suffering following the annihilation of more than half their race by the Ottoman Turks.[15]

The Grand Chamber also made clear that the court was not required to determine whether the massacres and mass deportations suffered by the Armenian people at the hands of the Ottoman Empire from 1915 onwards can be characterised as genocide within the meaning of that term under international law. It also added that it has no authority to make legally binding pronouncements, one way or the other, on this point. Furthermore, 7 judges, including then-President of the European Court of Human Rights Dean Spielmann notably stated in a joint dissenting opinion that it was self-evident that the massacres and deportations suffered by the Armenian people constituted genocide and that the Armenian genocide was a clearly established historical fact. "But that is not the question here. The case is not about the historical truth, or the legal characterisation of the events of 1915", they wrote. In the rest of their joint dissenting opinion, they detailed why they were unable to follow the majority's approach as regards the assessment of the applicant's statements.[14]

Reception

The court's reasoning in this case was widely criticized.[16] Since the ECtHR has ruled that member states may criminalize Holocaust denial, the verdict has been criticized for creating a double standard between the Holocaust and other genocides, along with failure to acknowledge anti-Armenianism as a motivation for genocide denial.[17][18][19][20] Shant N. Nashalian stated that the court ignored that Perinçek "seemingly intended to further spread the Turkish program of denial and suppression throughout the world, thus perpetuating the Young Turks' and Atatürk's destructive and repressive ideology still present in Turkey today".[21] According to law professor Sévane Garibian, the verdict "marks a victory for the ideology of genocide denial".[22] Perinçek and the Talat Pasha Committee, as well as the Turkish government, misrepresented the verdict to claim that the court put an end to the "hundred year-old genocide lie".[2]

Professor Dirk Voorhoof of Ghent University praised the judgment, arguing that it "would certainly be a sad day for freedom of expression in Europe" if the judgment was successfully appealed to the Grand Chamber.[23]

The Armenian writer Harut Sassounian described the Court's 2013 judgment an endorsement of the denialist stance of both Turkey and Perinçek.[24] The Turkish Human Rights Association also expressed its opposition to the court's reasoning:

As human rights defenders in Turkey, we are the most immediate, most direct witnesses of how the denial of the genocide against Armenians and other Christian ethnic groups of Asia Minor has right from the start generate[d an] anti-democratic system, allowing racist hatred, hate crimes and violation of the freedom of expression and the human rights in general.[25]

See also

Notes

    References
    1. Diler, Fatih Gökhan (28 January 2015). "Akhavan, intervening lawyer in the 'Genocide Case': "The worst crimes begin with words"". Agos. Retrieved 14 December 2020.
    2. Ertür, Başak (2019). "Law of Denial". Law and Critique. 30 (1): 1–20. doi:10.1007/s10978-019-09237-8. Lay summary. The fact that Perinçek’s case went all the way to the ECtHR Grand Chamber was a significant political victory for the so-called Talât Pasha Committee: this successful legal provocation entailed the ECtHR’s spectacular instrumentalisation in denialism in the centenary of the Armenian genocide. The high profile of the case allowed Perinçek and his allies to claim in their media campaign that this would be the case that decides whether or not there was a genocide. The campaign was effective: the ECtHR Grand Chamber hearing was widely covered in the Turkish media as the trial that would put an end to the so-called ‘hundred year-old genocide lie’... Perinçek and his party celebrated the judgment claiming in bold PR campaigns, ‘We put an end to the genocide lie’.
    3. Akkoc, Raziye (15 October 2015). "Right to deny Armenian genocide upheld by European court in blow to Amal Clooney". Daily Telegraph
    4. "Conviction for denial of Armenia genocide - humanrights.ch". humanrights.ch. 2011-01-12. Retrieved 2014-04-04.
    5. "Turk guilty over genocide remarks". BBC News. 9 March 2007.
    6. Court confirms verdict against Perinçek, SwissInfo, December 19, 2007
    7. "European Court confirms Perinçek's right to freedom of speech". Swissinfo.
    8. ECHR Chamber Judgment, 2013
    9. "Criminal conviction for denial that the atrocities perpetrated against the Armenian people in 1915 and years after constituted genocide was unjustified". European Court of Human Rights (press release).
    10. European Rights Court Agrees to Hear Swiss Appeal on Perinçek Ruling. Asbarez. 3 June 2014. Retrieved 3 June 2014
    11. Völkermord-Urteil wird überprüft. (German) Neue Zürcher Zeitung. 3 June 2014. Retrieved 3 June 2014
    12. "ECHR adjourns ruling on Turkey's Worker's Party chair over 1915 statements", Hurriyet Daily News, published January 28, 2015
    13. Squires, Nick (12 January 2015). "Amal Clooney takes on Armenia genocide case in European court". The Daily Telegraph.
    14. ECHR Grand Chamber Judgment, 2015
    15. "Robertson, Clooney Issue Statement on ECHR Ruling". asbarez.com/.
    16. de Broux, Pierre-Olivier; Staes, Dorothea (2018). "History Watch by the European Court of Human Rights". The Palgrave Handbook of State-Sponsored History After 1945. Palgrave Macmillan UK. pp. 101–119. ISBN 978-1-349-95306-6.
    17. Della Morte, Gabriele (31 May 2016). "When is a criminal prohibition of genocide denial justified? The Perinçek Case and the risk of a double standard". QIL QDI. Retrieved 14 December 2020. As is clearly stated in the contribution of A Macaya, if the Grand Chamber Judgement sees merit in putting some distance between the terms, ‘denial’ and ‘opinion’, the need to refer continuously to the difference between the Shoah and the Medz Yeghern gives the impression that only the former is truly protected under the European Convention of Human Rights. This was implicitly affirmed by the Strasbourg Judges when they held that the denial of the Holocaust ‘even if dressed up as impartial historical research, must invariably be seen as connoting an antidemocratic ideology and anti-Semitism’ (Perinçek, para 243).
    18. Belavusau, Uladzislau (13 February 2014). "Armenian Genocide v. Holocaust in Strasbourg: Trivialisation in Comparison". Verfassungsblog. Retrieved 14 December 2020.
    19. Belavusau, Uladzislau (5 November 2015). "Perinçek v. Switzerland: Between Freedom of Speech and Collective Dignity". Verfassungsblog. Retrieved 14 December 2020.
    20. Leotta, Carmelo Domenico (2018). "Criminalizing the Denial of 1915–1916 Armenian Massacres and the European Court of Human Rights: Perinçek v Switzerland". The Armenian Massacres of 1915–1916 a Hundred Years Later: Open Questions and Tentative Answers in International Law. Springer International Publishing. pp. 251–271. ISBN 978-3-319-78169-3. In conclusion, if the Grand Chamber had really balanced the freedom of expression with the Armenian group’s right of identity and dignity and not merely with the risk of diffusion of violence and hatred, the affirmation contained in the judgment—according to which the Holocaust denial 'must invariably be seen as connoting an antidemocratic ideology and anti-Semitism'—it would appear to be gravely discriminatory because it would imply that, in a democratic society, some groups are more valuable than others.
    21. Nashalian, Shant N. (2018). "A Critique of Perincek v. Switzerland: Incorporating an International and Historical Context Is the More Prudent Approach to Genocide Denial Cases" (PDF). Southwestern Journal of International Law. 24: 147.
    22. Garibian, Sévane (2018). "Über den Bruch des Konsenses: Der Fall Perinçek, der armenische Völkermord und internationales Strafrecht". Der Genozid an den ArmenierInnen: Beiträge zur wissenschaftlichen Aufarbeitung eines historischen Verbrechens gegen die Menschlichkeit (in German). Springer Fachmedien. pp. 167–187. ISBN 978-3-658-20453-2. Das Argument des „fehlenden Konsenses“ bezüg-lich des armenischen Völkermordes verstößt gegen den Geist der Europäischen Menschenrechtkonvention (1950), die als Folge der Verwüstungen des Zweiten Weltkriegs entworfen wurde: Es markiert einen Sieg für die Ideologie der Völker-mordleugnung. Diese Ideologie der „Spezialisten für die Untergrabung des Kon-senses“ (bei denen es sich gemäß dem französischen Philosophen Patrice Loraux um Menschen handelt, „die sich zum Ziel gesetzt haben, andere zu beschämen, weil sie zu früh zugestimmt haben, ohne weitere Beweise zu verlangen“)71 stört den demokratischen Konsens durch ihre manipulativen Kehrtwenden und die dadurch entstehende Verfälschung von Tatsachen. Denn Konsens, so Loraux in seiner beeindruckenden Analyse der Völkermordleugnung und seiner Akteure, ist die Handlung, durch die „man die hyperbolische Bewegung der Forderung nach Beweisen an der Schwelle dessen, was wir durch unseren ‚sensus communis‘ wahrnehmen, anhält“.72 Was auch immer zukünftig geschehen wird, von diesem Standpunkt aus können wir besser verstehen, welche Bedeutung der Verweis des Falls Perinçek durch die Schweizer Regierung an die Große Kammer des EGMR hat – eine deutliche Zurückweisung der Idee, dass das negationistische Projekt unumkehrbar ist.
    23. Voorhoof, Dirk. "Criminal conviction for denying the existence of the Armenian "genocide" violates freedom of expression". strasbourgobservers.com. Strasbourg Observers.
    24. "Switzerland Must Appeal European Court's Verdict on the Armenian Genocide | Asbarez Armenian News". asbarez.com. Retrieved 2014-04-04.
    25. Cheterian, Vicken (2015). Open Wounds: Armenians, Turks and a Century of Genocide. Hurst. ISBN 978-1-84904-458-5.

    Further reading
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