Perinçek v. Switzerland

Perinçek v. Switzerland
Court	European Court of Human Rights
Decided	17 December 2013

Perinçek v. Switzerland is a 2013 judgment of the European Court of Human Rights(ECHR) concerning the freedom of expression of Dr Doğu Perinçek, a one time Chairman of the Turkish Workers’ Party who was convicted for publicly challenging the existence of the Armenian genocide.

An appeal by Switzerland is currently before the Grand Chamber. A preliminary hearing was held on 28 January 2015.

Background

Doğu Perinçek is a Turkish political activist who has repeatedly called the Armenian genocide of 1915–1917 a lie on his visits to Switzerland. In 2007 he was found guilty by a Swiss court for denying the Armenian genocide in violation of Swiss anti-racism legislation. He was sentenced to 90 days imprisonment and fined 3000 Swiss francs.

Judgment

In December 2013 the European Court of Human Rights ruled by 5-2 that Switzerland had violated Doğu Perinçek's freedom of expression. The Court also declared it is not possible to legally characterise the 1915 events as genocide.

The relevant section of the Press release was as follows:

"... the European Court of Human Rights held, by a majority, 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 of Mr Perinçek for publicly challenging the existence of the Armenian genocide.

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 also 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.

Lastly, the Court observed that those States which had officially recognised the Armenian genocide had not found it necessary to enact laws imposing criminal sanctions on individuals questioning the official view, being mindful that one of the main goals of freedom of expression was to protect minority views capable of contributing to a debate on questions of general interest which were not fully settled."

Concerning the methods adopted by the domestic courts to secure convictions, the Court commented in its judgment:

115. The Federal Court has itself admitted that there is no unanimity in the community as a whole concerning the legal characterisation in issue. Both the applicant and the Turkish Government cited numerous sources – which have not been contested by the respondent Government – attesting to diverging views, and argued that it would be very difficult to speak of a “general consensus”. The Court agrees, and would point out that there are differing views even among the various political bodies in Switzerland: whereas the National Council – the lower house of the Federal Parliament – has officially recognised the Armenian genocide, the Federal Council has repeatedly refused to do so (see points 4.2 and 4.5 of the Federal Court judgment in paragraph 13 above). In addition, it appears that to date, only about twenty States (out of more than 190 in the world) have officially recognised the Armenian genocide. In some countries, as in Switzerland, recognition has not come from the Government but only from Parliament or one of its chambers (see in this connection the declaration of 24 April 2013 by certain members of the Parliamentary Assembly of the Council of Europe, paragraph 29 above).

116. The Court also agrees with the applicant that “genocide” is a clearly defined legal concept. It denotes an aggravated internationally wrongful act for which responsibility may nowadays be attributed either to a State, in accordance with Article 2 of the 1948 Convention (see paragraph 18 above), or to an individual, notably on the basis of Article 5 of the Rome Statute (see paragraph 20 above). According to the case-law of the ICJ and the International Criminal Tribunal for Rwanda (see paragraphs 21-23 above), for the crime of genocide to be made out, it is not sufficient for the members of a particular group to be targeted because they belong to that group, but the acts in question must at the same time be perpetrated with intent to destroy the group as such in whole or in part (dolus specialis). Genocide is therefore a very narrow legal concept which, moreover, is difficult to prove. The Court is not satisfied that the “general consensus” to which the Swiss courts referred as a basis for the applicant’s conviction can be relied on in relation to these very specific points of law.

117. In any event, it is even doubtful that there can be a “general consensus”, particularly among academics, about events such as those in issue in the present case, given that historical research is by definition subject to controversy and dispute and does not really lend itself to definitive conclusions or the assertion of objective and absolute truths (see, to similar effect, the Spanish Constitutional Court’s judgment no. 235/2007, referred to in paragraphs 38-40 above). In this connection, a clear distinction can be made between the present case and cases concerning denial of crimes relating to the Holocaust (see, for example, the case of Robert Faurisson v. France, determined by the UN Human Rights Committee on 8 November 1996, Communication no. 550/1993, doc. CCPR/C/58/D/550/1993 (1996)). Firstly, the applicants in those cases had not disputed the mere legal characterisation of a crime but had denied historical facts, sometimes very concrete ones, such as the existence of gas chambers. Secondly, their denial concerned crimes perpetrated by the Nazi regime that had resulted in convictions with a clear legal basis, namely Article 6, sub-paragraph (c), of the Charter of the (Nuremberg) International Military Tribunal, annexed to the London Agreement of 8 August 1945 (see paragraph 19 above). Thirdly, the historical facts challenged by the applicants in those cases had been found by an international court to be clearly established.

Appeal

After the ruling the government of Switzerland announced its decision to appeal the court’s ruling. On 3 June 2014 the ECHR 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.

The first hearing took take place on 28 January 2015 with Dr Dogu Perincek was reprerensented by Prof Laurent Pech, head of Deapartment of Law,Middlesex University in London, and 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 represented as a prosecuting third party by Doughty Street Chambers led by Geoffrey Robertson QC and Amal Clooney, . The Court's subsequent deliberations will be held in private, with its findings published later. A video of the first hearing of the appeal can be found on the website of the European Court for Human Rights.

Reaction

Positive

Professor Dirk Voorhoof of Ghent University wrote a positive critique of the judgment and argues that it "would certainly be a sad day for freedom of expression in Europe" if the judgment was successfully appealed to the Grand Chamber. Australian Turkish Advocacy Alliance has accused Geoffrey Robertson and Amal Clooney of hypocrisy . Geoffrey Roberson QC, a well-known "champion of Free Speech" has prosecuted Dr Dogu Perincek and called him a "vexatious litigant pest" at the ECHR hearing on January 28th, 2015, for expressing his academic view.

Doğu Perinçek was released at March 10th 2014, by courtesy of the judgement of Grand National Assembly of Turkey on lawlessness of Private Criminal Courts.

Critical

The Armenian writer Harut Sassounian writing for the Asbarez Newspaper states "The Court’s verdict, as it stands, is an endorsement of the denialist stance of both Turkey and Perincek, who is currently serving a life sentence in a Turkish jail for engaging in criminal activity!".

See also

• Genocide denial

External links

• ECHR Judgment (French)
• ECHR Judgment (English)