Introduction: On October 15 2015, the European Court of Human Rights (ECHR) sitting as a Grand Chamber delivered its judgement in the case of Perinçek v. Switzerland, which held by a close majority (10/7), that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The case concerned the criminal conviction by Swiss courts of a Turkish politician, Mr Perinçek for expressing the view, in three public events in Switzerland in 2005 that the mass deportations and massacres suffered by the Armenians living in the Ottoman Empire from 1915 onwards had not amounted to genocide. The Court recognised that the dignity of the victims and the dignity and identity of modern-day Armenians were protected by article 8 (right to respect for private life) of the Convention, and therefore the Court had to strike a balance between two Convention rights – the right to freedom of expression and the right to respect for private life. Taking into account the specific circumstances of the case and the proportionality between the means used and the aim sought, the Court held that the Swiss criminal conviction and punishment amounted to an unlawful interference with Mr Perinçek’s right to freedom of expression; thus, it was not necessary in a democratic society to subject him to criminal penalty in order to protect the rights of the Armenian community.
The case was brought before the ECHR by the applicant, Mr Dogu Perinçek, a Turkish national who was born in 1942 and lives in Ankara. In 2005 the applicant took part in three public events in Switzerland, in the course of which he expressed the view that the massacres suffered by the Armenians from 1915 onwards did not amount to genocide. The first was a press conference in Lausanne, where he stated that “the allegations of the “Armenian genocide” are an international lie”. The second event was a conference in Opfikon, where he made a speech in which he stated that “the Armenian problem … did not even exist”, and later he handed out copies of a tract written by him in which he denied that the events of 1915 had constituted genocide. Finally, at a rally of the Turkish Workers’ Party held in Koniz, he stated that “there was no genocide of the Armenians in 1915”.
In consequences of these statements the Switzerland-Armenia Association lodged a criminal complaint against Mr Perinçek, and in March 2007 the Lausanne Districk Police found him guilty of the offence of racial discrimination under Article 261 bis § 4 of the Swiss Criminal Code. The applicant appealed against the decision, which was then later confirmed by the Swiss Cantonal Court, while the Federal Court dismissed his further appeal.
On the 10th June 2008, the applicant lodged an application with the European Court of Human Rights complaining that his criminal conviction and punishment by the Swiss authorities for the views he expressed, had been in breach of his right to freedom of expression under article 10, and also relying on article 7 (no punishment without law), that the wording of Article 261 bis § 4 of the Swiss Criminal Code was too vague.
In a first judgment on the 17th December 2013, a Chamber of the ECHR held, by five votes to two, that there had been a violation of Article 10 of the Convention. The Swiss Government requested that the case be referred to the Grand Chamber under article 43 of the Convection, and on January 18 2015, a Grand Chamber hearing was held. In the latest proceedings, third party comments were received from the Turkish Government, who had exercised their right to intervene in the case, from the French Government who had been given leave to intervene in the written procedure, and from the Armenian Government who were given leave to take part in the hearing. In front of the Grand Chamber, Mr Perinçek was represented by Prof Laurent Pech, head of Department of Law at Middlesex University London; Turkey was represented as a third party by Prof Stefan Talmon, who is a professor of law at Oxford University; 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.
Decision of the Court
At the outset the Court underlined that it 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 could be characterised as genocide within the meaning of that term under international law. The Court concluded that it did not have the authority to make a legally binding pronouncement on the issue. The point has however been subject of dissent by the Joint Dissenting Opinion of Judge Spielmann (President of the Court), Casadevall, De Gaetano, Sicilianos, Silvis, and Kuris, who referred to the majority approach on the issue as “timid”, stating that the Armenian genocide is self-evident and a clearly established historical fact.
The Grand Chamber, followed the lower Court’s judgement, in finding that Mr Perinçek’s conviction had constituted an interference with the exercise of his right to freedom of expression under Article 10 of the Convention. Then, the Court examined whether the interference could be lawfully justified under Article 10 § 2 of the Convention, i.e. I) whether it had been prescribed by law, II) it pursued a legitimate aim, and III) whether it was necessary in a democratic society. The Court examined these points in turn.
To begin with the Court examined, as was argued by the Swiss Government, whether the interference could be justified under Article 16 of the Convention, which provides that nothing in Article 10 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens. On this point the Court considered that any clauses that permit interference with Convention rights would on freedom of expression should be interpreted restrictively, thus on the facts the Court found that Article 16 should be interpreted as only capable of authorising restrictions on activities which directly affected the political process, which had not been the case here (para 118-123).
I. The Court, at para 125, taking into account the manner in which the Swiss Federal Court had construed Article 261 bis 4 of the Swiss Criminal Code, found that the precision of the term “a genocide” in this Article could give rise to doubts. However, the applicant, being a lawyer and a well-informed politician, could have suspected that his statements could result in criminal liability and had later acknowledged that when making his statements he had been aware that the public denial of genocide had been criminalised in Switzerland. Therefore, the Court found that the interference could be regarded as “prescribed by law”.
II. The Court, at para 141, accepted that the interference with the applicant’s right to freedom of expression had been intended to protect the “rights of others”, namely the honour of the relatives of the victims of the atrocities perpetrated by the Ottoman Empire against the Armenian people from 1915 onwards. The Court thus accepted that the interference with Mr Perinçek’s rights had been intended to protect the identity and thus the dignity of the present-day Armenians. However, the Court was not satisfied with the Swiss Government’s assertion that the applicant’s comments had in addition posed a serious risk to public order.
III. Concerning the question whether the interference had been “necessary in a democratic society” within the meaning of Article 10 § 2, the Court underlined that it was not required to determine whether the criminalisation of the denial of genocide or other historical facts might in principle be justified, rather it was only asked to review the position of the interference in the present case. Having recognised that the dignity of Armenians was also protected by the Convention under Article 8, the Court had to strike a balance between the two Convention rights, taking into account the specific circumstances of the case and the proportionality between the means used and the aim sought to be achieved.
The Court examined the nature of Mr Perinçek’s statements, having regard to the context in which they were made, the Court found that they had been of “an historical, legal, and political nature” and relating to a debate of public interest, and on this basis the Court concluded that the Swiss authorities’ margin of appreciation had been reduced (para 158). The Court found (III.i) no indication that the applicant’s statements had been likely to stir up hatred or violence, and went on to drew a (III.ii) distinction between them and statements denying the Holocaust on the basis that they did not carry the same implications and were not likely to have the same repercussions.
III.i In applying the test whether the statements are likely to stir up or justify violence, hatred, or intolerance, the Court had regard to several factors from its case-law. Whether the statements were made against a tense political or social background, presence of which had previously been found to justify interference (Zana v Turkey, 1997); whether the statements could be seen as a direct or indirect call for violence (see Inkal v Turkey, 1998), assessing the manner with which the statements were made. Against the specific facts of the case, the Court found that Mr Perinçek, speaking at public conferences to like-minded supporters did not incite violence or intolerance with its speeches.
III.ii The court drew a distinction with its previous case law (see Witzsch v Germany, 1999; Schimanek v Austria 2000) on statements denying the Holocaust, where the Court had invariably presumed that given the context they could be seen as a form of incitement to racial hatred, and the case at hand. In this case, according to the Court the geographical and historical context did not require automatically to presume that the applicant’s statements promoted racist and antidemocratic agenda. The Court drew the distinction by taking into account the historical experience of the Convention State concerned by a complaint under Article 10 regarding the Holocaust: the justification for making its denial a criminal offence lay in the fact that such denial, in the historical context of the States concerned had to be considered as implying anti-democratic ideology and anti-Semitism, just for the fact that the cases were brought against States such as Austria, Germany, Belgium, and France, which had all experienced the Naxi horrors. Therefore these States could be regarded has having a “special moral responsibility” in the context of the Holocaust. By contrast, it had not been argued that there was a direct link between Switzerland and the events that took place in the Ottoman Empire from 1915 (para 244).
The court also considered the positions among the member States as regards to the denial of historical events, but concluded that there was no general consensus among the States as to how to legislate on the issues: with some States criminalising such denials, and other States that did not. Moreover, it considered that no international treaties in force with respect to Switzerland required with clear and explicit language to criminalise the denial of genocides as such. Furthermore, usually restriction on freedom of expression amount to limits on the dissemination of a publication , while in this case Mr Perinçek had suffered the most serious form of interference with a right: criminal conviction, therefore based on all the above factors the Court concluded that it had not been necessary, in a democratic society to subject the applicant to criminal penalty in order to protect the rights of the Armenian people and the interference with Mr Perincek freedom of expression was unlawful.
Comment: A victory or a loss for human rights in Europe?
It is hard to determine whether this judgement is a victory or a loss for the protection of human rights in Europe. On one hand, it seems to promote freedom of expression in its widest implications; on the other, it seems to limit the right to respect for the dignity and the lives of people who suffered from atrocious crimes. The decision of the Grand Chamber (seventeen judges) was formed by a majority of ten judges, with six judges publishing a joint dissenting opinion in which they disagreed with the main reasoning of the majority and one judge making a partly concurring and partly dissenting opinion in which she disagrees that there has been a substantive violation in the case but only a procedural one. The result was apparently straight-forward: the Armenian people have a right to have their dignity respected under article 8 of the Convention, but statements made at public events such as “the Armenian genocide is an international lie”, cannot be prosecuted as on the facts they have not been found by the Court to ignite violence, hatred, or intolerance. There seems to be a contradiction here. In fact, seven judges including the President of the Court, Judge Dean Spielmann, have argued that according to them there had not been a violation of Article 10 and have criticised the majority’s judgement in its core reasoning.
Firstly, the Dissenting judges found the majority’s approach too “timid”, in limiting the scope of their jurisdiction at the outset, to not make any findings on the question of whether or not the mass atrocities committed in Armenia in 1915 and onwards constitute a genocide. In their respect, the fact that the events constituted genocide is self-evident, it is a clearly established historical fact (para 2). However, the question in the case is whether a State, without overstepping its margin of appreciation, can make it a criminal offence to insult the memory of the people that has suffered genocides. According to them, it can. Their main dissent relates with the majority’s understanding of the applicants statements. The Court has “played down” the consequences of Mr Perinçek’s pernicious speech: they amount to a distortion of historical facts, they contain an intent to insult people, and they constitute a gross misrepresentation. “To the extent that it sought to discredit the “obvious”, the speech in question – as was unequivocally confirmed by the applicant at the hearing – can even be said to constitute a call, if not for hatred and violence, at least for intolerance towards Armenians.” These statements overstep the limits of what is acceptable under Article 10 and applying the requirements for finding an interference with the applicant’s right to freedom of expression, they found that there was an interference and that it was lawful.
The dissenting judges found the methodology of the majority to be flawed at its core. In balancing the applicant’s right under Article 10 against the right of the Armenian community under Article 8, the majority sought to analyse the nature of the statements against their wider historical and geographical context (see para 242-248). The analysis sought to minimise Mr Perinçek statements seeking to limit their geographical reach, which amounts “to seriously watering down, the universal, erga omnes scope of human rights – their quintessential defining factor today.” At para 245 the Court considers that the question is whether the applicant’s criminal conviction in Switzerland can be justified by the situation in Turkey, whose Armenian minority is alleged to suffer from hostility and discrimination. For the Court, the answer is in the negative. Even though it recognised that “at present, especially with the use of electronic means of communication, no message may be regarded as purely local” and that “it is consonant with the spirit of universal protection of human rights, for Switzerland to seek to vindicate the rights of victims of mass atrocities regardless of the place where they took place.” However, according to the majority: “the broader concept of proportionality inherent in the phrase “necessary in a democratic society” requires a rational connection between the measures taken by the authorities and the aim that they sought to realise through these measures, in the sense that the measures were reasonably capable of producing the desired result.” From the majority’s geographically restricted approach it can be logically inferred that denial in Europe of genocides perpetrated in other continents, such as the Rwandan genocide would be protected by freedom of expression without any limits, or with scarcely any, as the aim that a restriction upon that right would seek to realise, namely protecting the respect of the dignity of the people affected by the atrocities, would not materialise in any real way for the people which they sought to protect given the geographical and temporal differences.
The same critique can be argued for the majority’s emphasis on the time factor (see para 249-254 of the judgment). The majority applied the reasoning of the Court in previous case Lehideux and Isorni 1998, where the Court held that while controversial remarks about historical events were always likely to reopen controversies and bring back memories of past sufferings, a lapse of time of forty years made it inappropriate to deal with them with the same severity as some twenty years previously. Hence, in the present case the majority considered that since the lapse of time between the applicant’s statements and the tragic events were considerably longer (about ninety years) the time element was not to be disregarded. The judgement went further and held that “whereas events of relatively recent vintage may be so traumatic as to warrant, for a period of time, an enhanced degree of regulation of statements relating to them, the need for such regulation is bound to recede with the passage of time.” This statement is certainly problematic, since it apparently infers that in twenty or thirty years’ time the denial of the Holocaust may be acceptable in terms of freedom of expression. As the dissenting judges note: How can this factor be squared with the principle that statutory limitations are not applicable to war crimes and crimes against humanity?
Moreover, there is a third implication that arises from the majority’s judgement, which taking all the logical inferences it can lead to unwanted results. At para 107, when the majority seeks to draw the distinction between the Holocaust cases and the present case, it makes the proposition that the former cases where held not be admissible because the States against which the complaint was sought had lived through the horrors of the events which were denied; while in this case Switzerland had “no direct link” with the events that took place in the Ottoman Empire in 1915. Here, the Court may inadvertently have introduced a “direct link” test for complaints for restriction of freedom of expression, which could be brought only when the statement complained of is “directly linked” with the State which sought to restrict the person making the statement. This would implicate that for instance if a person were to deny a crime against humanity in a place completely unrelated with the place and the people where it happened, this person could freely do so because the interests of the people affected would be too far from its own. This “test” is clearly at odds with the universal reach of human rights and the principle of their enforceability erga omnes. If we are to protect human rights universally clearly the people who suffered from atrocities ought to have a universal right to be respected, which should not be trumped by freedom of expression. The latter is a “qualified right”, an inherently limited right, the Convention itself indicates that it can, and it shall be limited among other things, for the protection of the reputation or the rights of others (Art. 10(2)). It does not seem coherent with the Convention’s object and purpose, the advancing of human rights and their universality to require a “direct link” and limit the right to be respected, enshrined in Article 8 of the Convention, to geographical and temporal factors.
The distinction drawn by the majority between the present case and the previous Holocaust denial cases is problematic. The reasoning adopted by the Court in previous Holocaust cases turned around the principle that such speech denying crimes against humanity should not even attract the protection of Article 10 as it pursues a proven racist aim. In Garaudy v France (2003) one of the reason for dismissing the applicant’s complaint was that the statements written in the applicant’s book constituted themselves racial defamation. The Court stated: “Denying crimes against humanity is therefore one of the most serious forms of racial defamation and of incitement to hatred. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order. Such acts are incompatible with democracy and human rights because they infringe the rights of others.” The same reasoning can be applied in the present case. Mr Perinçe’s statements may be said to constitute themselves a form of racial defamation, since they purport to deny crimes against humanity, which in the words of the court “is one of the most serious form of racial defamation and of incitement to hatred.”
Furthermore, in the present case the court relied on another distinction. Here the Court found that Mr Perinçe was speaking “as a politician at a conference to like-minded speakers” as an indication that he was taking part in an issue of public concerned and he was not expressing contempt or hatred for the victim. However, it is argued that his position as a politician should be taken into account in the sense that he had higher responsibility for the messages he convened. Politicians have a wide audience overall and are capable of influencing other people’s opinion and thus they are under a duty to refrain from hate speech. In Feret v Belgium (2009) the Court reiterated that it was crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance. Therefore, according to the ECHR jurisprudence, because of his capacity as politician speaking at a public conference, his should have refrained from “hate speech”.
Overall however, Geoffrey Robertson QC, representing Armenia, has said to be satisfied with the judgement, since two points of their argument had been adopted by the court. First, they successfully argued to strike down the lower Chamber’s previous judgement, on the point where even though it stated that it was not its task to evaluate historical events (see para 99 of the Chamber judgment), its reasoning seemed to be based on the assumption of a different degree of certainty about what happened in Turkey in 1915 and in Germany during the Nazi regime. While the majority of the Grand Chamber distanced themselves from this approach and argued that “the justification for making [Holocaust denial] a criminal offence lies not so much in that it is a clearly established fact…” (para 243 of the judgment). Secondly, the majority adopted the test which Armenia argued for: namely that a statement should be lawfully interfered with if it is likely to stir up or justify violence, hatred, or intolerance. Therefore he thinks, this is a success for the Armenian people, since the right to respect for their history and believes has been recognised by the “highest Court in Europe”. Moreover he considers the judgment to be a success for human rights more broadly, since even though in the specific case the statements of Mr Pericek were considered not to incite any violence or hatred, because lacking value, since they were given by (in the words of Mr Robertson) “a worthless provocateur” “who would be ignored by anyone in its right mind”, the Court effectively said that in principle the denial of genocide could be prosecuted when likely to cause or justify violence, hatred, or intolerance.
The Court’s timid approach to this very sensitive case might have raised more consequences that intended. Even though in Mr Robertson QC’s reading of the judgment the Court in finding that Article 10 has been violated on the facts of the case, did not close the door to future prosecutions of similar cases, i.e. denial of genocides or other mass atrocities crimes, but simply reiterated that a person can be prosecuted for making such a statement when it is likely to cause violence or hatred; the geographical and temporal approach seem to have limit the scope of lawful interference with the right to freedom of expression much further. Firstly, by requiring a “direct link” between the people that are sought to be protected and the place and circumstances, where the statement is made, and secondly putting a time-frame on historical events, which apparently after a certain amount of years (fifty?ninety?) enjoy a lesser degree of protection. The distinction between the present case and the Holocaust cases raises important questions as to the consistency of the Court’s case-law, where it seems to be going in two different directions: as Judge Nussberger asks in her concurrent opinion: “Why should criminal sanctions for denial of the characterisation of the massacres of Armenians in Turkey in 1915 as “genocide” constitute a violation of freedom of expression, whereas criminal sanctions for Holocaust denial have been deemed compatible with the Convention?”