Yesterday, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of Perinçek v Switzerland. The Grand Chamber held by majority that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR).
Mr Doğu Perinçek, a Turkish politician, had been convicted in Switzerland for publicly expressing the view that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire in 1915 and the following years had not amounted to genocide. At a press conference in Switzerland in May 2005, he stated that the allegations of the ‘Armenian genocide’ were an international lie. In two further public events in Switzerland he made further statements of a similar nature.
Mr Perinçek was finally convicted by the Swiss Federal Court on 12 December 2007. He lodged an application to the ECtHR to complain about his criminal conviction in June 2008. In a judgment of 17 December 2013, a Chamber of the Court held that there had been a violation of Article 10 of the Convention. The Swiss Government requested the case to be referred to the Grand Chamber. In the Grand Chamber proceedings, third-party comments were received from the Turkish Government, the Armenian Government, and the French Government.
The Court concluded that it had not been necessary, in a democratic society, to subject Mr Perinçek to a criminal penalty in order to protect the rights of the Armenian community at stake in the case. According to an official press statement of the Court, the Grand Chamber particularly took into account the following elements:
“Mr Perinçek statements bore on a matter of public interest and did not amount to a call for hatred or intolerance; the context in which they were made had not been marked by heightened tensions or special historical overtones in Switzerland; the statements could not be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland; there was no international law obligation for Switzerland to criminalise such statements; the Swiss courts appeared to have censured Mr Perinçek simply for voicing an opinion that diverged from the established ones in Switzerland; and the interference with his right to freedom of expression had taken the serious form of a criminal conviction.”
The court made a clear distinction with Holocaust denial, whose specific history meant it could always be “seen as a form of incitement to racial hatred” in certain countries. Its judges have earlier noted that the historical facts of the Holocaust, “such as the existence of gas chambers”, were “considered clearly established by an international jurisdiction”.
Turkey has always denied that the killings, which started in 1915, were a pre-meditated attempt by the then ruling Ottomans to wipe out the Armenians. It says 500,000 died, not 1.5 million as claimed by Armenia. Before the mass killings, two million Armenians were living in the territory of the Ottoman Empire.
Yunus Soner, Dogu Perincek’s senior adviser and vice-chairman of his Vatan Party, told Al Jazeera that the ECHtR confirmed that denial of genocide claims was a valid opinion and banning it was a violation of human rights.
“It is a milestone judgement for Turkey and wider region, ending the lie of Armenian Genocide. This lie was a part of the plot to divide Turkey and it was made popular by the West for this reason,” he said.
Armenia intervened in the case for the reason that the lower court had cast doubt on the fact that the genocide against the Armenian people occurred in 1915. International human rights lawyers Geoffrey Robertson QC and Amal Clooney, who represented the Armenian Government, sought to correct this error, which according to their press statement, the Grand Chamber did. In their dissenting opinion, seven judges held that the Armenian genocide “is a clearly established historical fact” and 10 judges of the Grand Chamber held that the question should not have been addressed at all.
In its judgement on Thursday, the ECHR said that it was not required to determine whether the criminalisation of the denial of genocide or other historical facts might in principle be justified.
It said the verdict was specifically on the case of Perinçek.