Cambridge Universitesinin Hukuk Fakultesi Yayin Organinin AHIM , Dogu Perincekle Ilgili Kararin Degerlendirmesi (Ingilizce)


The Judgment of the European Court of Human Rights in Perinçek v. Switzerland: Reducing Genocide to Law

Posted on 21 December 2013.

On 17 December 2013, the European Court of Human Rights ruled by five votes against two that Switzerland violated the right to freedom of speech by convicting Doğu Perinçek, chairman of the Turkish Workers’ Party, for publicly denying the existence of any genocide against the Armenian people.

I. Background

On several occasions, the applicant had claimed that the idea of an Armenian genocide was ‘an international lie’. The reasoning adopted by the Swiss courts to find him guilty of racial discrimination (see the judgment of the Swiss Federal Tribunal) rested inter alia on the identification of a consensus about the existence of the Armenian genocide. In the view of the Swiss courts, because the Armenian genocide was the object of a ‘general historical and scientific consensus’, its existence had to be considered established as a matter of fact and could not be challenged in court – even though the issue had not been previously adjudicated by a court of law, and despite the fact that some degree of controversy persisted as to the legal qualification of these events.

II. The Court’s Decision

In its decision, the European Court of Human Rights indicated that it was not incumbent upon it to arbitrate controversial historical questions and make factual or legal findings concerning the massacres and deportations that occurred in Turkey in 1915. Rather, the court asked whether the interference in the applicant’s freedom of expression by the Swiss judicial authorities pursued a legitimate aim and was necessary in a democratic society.

The Court first acknowledged that the decision of the Swiss courts was ‘susceptible to serve the protection of the rights of others, namely the honour of the family and relatives of the victims of the atrocities committed by the Ottoman Empire against the Armenian people’.

However, it found that, considered as a whole, the motives of the Swiss authorities were insufficient to warrant interference with the applicant’s rights. The Court recalled its jurisprudence on the freedom of speech, stressing that the protection of the European Convention on Human Rights extends ‘not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb’. Any restriction of the freedom of expression must respond to ‘a pressing social need’.

In assessing whether the interference was necessary, the Court first noted that the state’s margin of appreciation in this case was reduced because the comments of the applicant were part of a historical, legal and political debate of public interest. Then, the Court expressed caution about the ‘consensus approach’ adopted by the Swiss courts: it pointed out that a consensus was difficult to establish in relation to matters which, in the Court’s opinion, cannot be historically ascertained with absolute certainty, especially in view of the fact that genocide is a very specific and narrowly defined legal concept requiring a high threshold of proof. Finally, the Court cited pertinent developments before domestic courts in France and Spain and before theHuman Rights Committee concluding that the criminalisation of opinions about historical facts that do not incite to violence or racial hatred cannot be justified.

III. Comments

The decision of the Court is most welcome. The line of reasoning of the Swiss authorities was indeed troubling, as it came very close to establishing a form of ‘dictature de la pensée unique’: a system which places one single opinion above all others, criminalises disagreement, and precludes any form of debate or discussion. As the Court rightly recalled, disturbing or shocking opinions deserve the full protection of the law. Opinions we deem unfounded, inappropriate, or despicable should be subject to debate and argumentation, not blind suppression. Indeed, as the Court has regularly stressed, ‘[s]uch are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”’.

The Court also reminds us of the necessity of ‘reducing genocide to law’. The term ‘genocide’ has been used, misused and abused and brandished as a rhetorical and political weapon to further diverse agendas. It should be kept in mind that the crime of genocide as defined under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide requires the specific ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. A legal determination that genocide has been committed must be made irrespective of the scale and heinousness of the underlying crimes. The events painfully remembered by the Armenian people as Meds Yeghern (‘the Great Crime’) may well have constituted genocide. It is, however, for a court of law to make such determination, and even then, disagreement about the validity of such determination should arguably still be tolerated as long as it does not constitute hate speech. Genocide remains above all a legal construct – nothing more, and nothing less.

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