Perincek v Switzerland: What does ECHR's judgment mean?

Perincek v Switzerland: What does ECHR's judgment mean?

The European Court of Human Rights (ECHR) in Strasbourg has ruled that Switzerland violated Dogu Perincek's right to freedom of speech.

PanARMENIAN.Net gathered comments concerning the verdict. (Article 10 of the European Convention on Human Rights, regularly mentioned in the text of the judgment, provides the right to freedom of expression and information.)

PanARMENIAN.Net - Did the Court say that the massacres suffered by the Armenian people at the hands of the Ottoman Empire from 1915 onwards were genocide or not?

No. In its judgment, the Court underlined that it was neither required to answer that question, nor did it have the authority – unlike international criminal courts, for instance – to make legally binding pronouncements on this point.

Did the Court find that Perincek’s statements had amounted to genocide denial?

No. The Court did not seek to establish whether those statements could be characterized as genocide denial or justification for the purposes of Swiss criminal law, underlining that that question was for the Swiss courts to determine. However, the nature of Perincek’s statements was a significant element in the Court’s examination of whether there was a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The Court emphasized that Perincek did not express contempt or hatred for the victims of the 1915 events.

Why did the Court find a violation of Article 10 of the Convention?

The Court undertook a balancing exercise between the need to protect the right to respect for the dignity of the Armenians, under Article 8 of the Convention, and the need to protect Perincek’s right to freedom of expression, under Article 10. It concluded that it had not been necessary to subject Perincek to a criminal penalty in order to protect the rights of the Armenian community at stake.

In arriving at that conclusion, the Court took a number of elements into account, including the following: Perincek’s statements bore on a matter of public interest and did not amount to a call for hatred or intolerance; there was no international law obligation for Switzerland to criminalize such statements; the interference with Perincek’s right to freedom of expression had taken the serious form of a criminal conviction.

Does the Court’s finding that Perincek’s rights under Article 10 were violated mean that States cannot outlaw genocide denial?

No. The Court was not required to determine whether the criminalization of the denial of a genocide or other historical facts could in principle be justified. It was only in a position to review whether or not the application of the Swiss Criminal Code in this case had been in conformity with Article 10.

How does the judgment relate to cases concerning denial of the Holocaust?

The judgment does not change anything in the Court’s assessment of statements denying the Holocaust. The Court and the former Commission have dealt with a number of cases under Article 10 concerning denial of the Holocaust and other statements relating to Nazi crimes and have declared the applications in all of those cases inadmissible. Those cases had been brought against Austria, Belgium, Germany and France.

For the Court, the justification for making Holocaust denial a criminal offence lies in the fact that, in the historical context of the States concerned, even if dressed up as impartial historical research, it has to be considered as implying anti-democratic ideology and anti-Semitism. The Court considers that Holocaust denial is especially dangerous in States which have experienced the Nazi horrors and which can be regarded as having a special moral responsibility to distance themselves from the mass atrocities that they have perpetrated or abetted, by, among other things, outlawing their denial. By contrast, it has not been argued that there was a direct link between Switzerland and the events that took place in the Ottoman Empire in 1915 and the following years.

How did Armenia respond to the judgment?

Positively. It overrules the comments by several judges in the lower court who thought that the mass murder of the Armenians in 1915 might not amount to genocide. The Court held that they had no jurisdiction to consider findings on this issue. So the lower court judgment was wrong and can no longer have any weight or influence. The Court declared that Armenians have “the right to respect for their and their ancestors’ dignity including their right to respect for their identity constructed around the understanding that their community has suffered genocide.”

How did Ankara respond to the judgment?

Positively. Mevlut Cavusoglu, Turkey's former Foreign Minister and government MP, told Al Jazeera that the judgment was issued taking into account legal reasons, not political ones. "The ECHR is the house of democracy, rule of law, human rights and freedom of expression. It is thus natural to have such a verdict," Cavusiglu said. "European countries, who claim to defend democratic values, have passed laws restricting freedom of speech over how to define certain incidents, such as the so-called Armenian Genocide," Cavusoglu said, adding that in Turkey people are free to deny or recognize the Armenian Genocide."

How did the Switzerland-Armenia Association respond to the judgment?

Negatively. The Switzerland-Armenia Association (SAA) which intervened before the Grand Chamber as third party is appalled and deeply shocked by this verdict, which comes the same year as the centennial commemoration of the Armenian Genocide. "While freedom of expression is essential and fundamental in a democratic society, it is not absolute. Freedom of expression cannot be misused for rewriting history, particularly so for seeking to deny or justify genocide, which is the most absolute and heinous of crimes. By the present judgment, the Grand Chamber basically challenges the assessment made by the Swiss courts, in breach of the basic principle of subsidiarity upon which by the European Convention on Human Rights relies,” SAA said in a statement.

How did the European Armenian Federation respond to the judgment?

Positively. The European Armenian Federation welcomes the judgment by the European Court of Human Rights (ECHR) in the case of Perincek v. Switzerland, in which Armenia was involved as a third party. “It is especially important that the European Court itself has stated that the Armenians have the right to respect for their and their ancestors’ dignity,” Bedo Demirdjian, head of Communications & PR department at the European Armenian Federation said.

Is this the first case before the Court concerning statements relating to the 1915 massacres suffered by the Armenian people?

No. The Court has examined a number of cases against Turkey concerning statements relating to those events. They were brought, in particular, by people who had been convicted in Turkey following statements expressing the opinion that the 1915 events constituted genocide or criticizing attitudes which allegedly amounted to denial of the massacres of 1915 and the following years. See in particular Guclu v. Turkey (no. 27690/03), Chamber judgment of 10 February 2009, and Dink v. Turkey (nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09), Chamber judgment of 14 September 2010.

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