Strasbourg, 16/10/2015 (Agence Europe) - Freedom of expression permits challenge to the notion of the Armenian genocide, according to the ruling delivered on Thursday 15 October by the Grand Chamber of the European Court of Human Rights ECtHR. The judges did, however, set a limit on the scope of this ruling, stating that Holocaust denial remained an act that could be outlawed.
In the case at issue, the Court ruled in favour of the complainant, a Turkish national who had been found guilty of an offence under Article 261 bis § 4 of the Swiss Criminal Code, after he described the Armenian genocide as an “international lie” at public meetings held in Switzerland.
In this ruling, a balance had to be struck between two of the fundamental rights enshrined in the European Convention on Human Rights: the right to dignity (respect to private life) - which as much to the victims of the past as to Armenians of today - and the right to freedom of expression claimed by the complainant Dogu Perincek of the Turkish Workers' Party.
After his conviction in Switzerland, Perincek appealed to the ECtHR which, in an initial ruling in December 2013, gave primacy to the right to freedom of expression. Switzerland appealed to the Grand Chamber, the ECtHR's highest court, against this decision. The ruling of 15 October upheld the initial decision. Of the 17 judges who make up the Grand Chamber, 10 were of this view.
In this second ruling, the ECtHR 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. That would be for the International Criminal Court.
The ruling upheld, however, that Perincek's criminal conviction in Switzerland was a disproportionate restriction on his right to freedom of expression. The Court underlined, however, that this ruling in no way undermines its case law on denial of the Shoah. This case law cannot serve as a reference for the Perijncek case, the ruling states, because nothing in this latter case “could not be seen as a call for hatred, violence or intolerance towards the Armenians” whereas “even if dressed up as impartial historical research, (Holocaust denial) had to be considered as implying anti-democratic ideology and anti-Semitism”. This is particularly so since Holocaust denial cases so far had concerned Austria, Belgium, Germany and France, countries which had “experienced the Nazi horrors” and which “could be regarded as having a special moral responsibility to distance themselves from the mass atrocities that they had perpetrated or abetted, by, among other things, outlawing their denial”. This is not so in Switzerland with regard to the events that took place in the Ottoman Empire in 1915.
This complex legal argument was described as “superficial” by Sarkis Shahinian, honorary president of the Switzerland-Armenia Association, which had lodged the original complaint against Perincek in Switzerland. “Freedom of expression is vital but it cannot be used to re-write history”, he stated. (Original version in French by Véronique Leblanc)