Authored By: IVY CHIN HANN WEI
Multimedia University Melaka
Introduction of the case
This 2015 case mainly concerns about Grand Chambers of European Court of Human Rights attempt to balance between right of freedom of expression enshrined in European Convention of Human Rights and genocide denial. The applicant, Perincek was part of the Turkish Workers’ Party, whereas the State concerned is Switzerland.
Facts of the case
In 2005, the applicant participated 3 public events held in Switzerland. During these conferences, he stated that the Armenian Genocide is merely an international lie and claimed that it was the West who incited violence among Armenians, leading to raging war against defenseless Turks and Kurds. He also claimed that Turkey was merely defending their homeland and Armenians were the one who sided with imperialist powers. Subsequently, a criminal complaint against applicant was lodged by Switzerland Armenia Association in 2005 and shall be held for trial under Article 261 of the Criminal Code for racial discrimination in 2006. In 2007, the applicant was found guilty under the Article and fined along with nonpecuniary damages and costs incurred during criminal proceedings. The applicant’s appeal was later dismissed by the relevant court.
Legal Issues and Arguments
The main issue concerns violation of applicant’s rights in Article 10 of the Convention by the Swiss Government.
- Whether the interference of applicant’s right can be justified?
The Swiss Government argued that Article 261(4) of the Criminal Code was legislated with defined scope to prosecute genocide and crimes against humanity denial. The Turkish Government on the other hand submitted that such Article did not reach high degree of foreseeability needed for severe punishment and the applicant could not foresee his conviction due to his statement. They also argued that the determination of whether the 1915 events constituted as genocide was referred to the consensus of Swiss society, which lack of legal criteria to follow. Perincek, as legal expert, “genocide” to him, is strictly defined by legal concept, and therefore could not have foreseen that “genocide” definition would be referencing the Swiss societal consensus.
- Whether there was a legitimate aim from Swiss Government when interfering applicant’s freedom of expression?
The Swiss Government submitted it was to protect rights of Armenians since the applicant’s statement, is a threat to Armenians identity and public order maintenance is needed. The obligation to prevent public disorder and protecting ethic or religious group is also evident under Article 4(b) of the 1965 International Convention on the Elimination of All Form of Racial Discrimination (CERD). The Turkish Government argued that there is connection between applicant conviction and public order maintenance, because Article 10(2) of the Convention states about “prevention of disorder” and no indication that the applicant’s statement can likely or in fact cause disorder. iii) Whether it was necessary for Switzerland to interfere applicant’s right in a democratic society?
The applicant submitted that the debate was part of public interest, and it is essential in a democratic society. He did not deny the 1915 events, rather, he was debating if the 1915 event fits the genocide scope provided under international law. Since Armenian genocide had not been recognized, therefore it is very different between his statements and statements denying the established Holocaust genocide. He further argued that he did not intend to incite hate, or undermining Armenian identity, and it was merely legal and historical. As a socialist lawyer, he was targeting at the imperialist powers for spreading “international lie”, not the Armenians. He also stated he did not accuse the Armenians of falsifying history, but only discussed the “Armenian question” in Ottoman Empire which had not reach mutual consensus among the historians. Additionally, his mentions of Talat Pasha, does not mean that he supported him. Lastly, the applicant argued that Article 261(4) of the Criminal Code was very controversial in Switzerland and there was no consistent law application.
The Swiss Government argued that the 1915 event constituted crimes against humanity which also fall under Swiss provision. The applicant’s statement labelled the Armenians as the aggressors towards the Turkish people and as a follower of Talat Pasha, it would infer that he justifies the violence against Armenians. Article 261(4) of Criminal Code did not forbid mere denial or justification of genocide or crimes against humanity, the acts must be on grounds of race, ethnic, and religion that violated human dignity. In applicant’s case, his statements were motivated by racism and accused Armenians of falsifying history. Hence this cannot be a mere historical debate as it violated the rights of victims and the values that the Convention holds. The fact that there were many failed attempts to repeal the Swiss provision shows that it acquired strong legitimacy in Switzerland. Notably, the Armenian Government argued that applicant’s statement leads to painting Armenians as liars. Describing the atrocities as “tragedy” is an insult to the Armenians, the same way that Holocaust denial was the key factor of anti-Semitism.
- Whether Switzerland has the duty to criminalize genocide denial under international law?
The Turkish Government contended that the criminalization of denying characterization of 1915 events as genocide is not needed since there is no precedent cases under Council of Europe and even the German government did not see the necessity to criminalize. Also, the Swiss authorities did not stop the applicant from delivering his statement, therefore it is difficult to see the need to penalize the applicant. The third-party interveners, The Centre for International Protection, argued that States have international law obligations such as Article 4 of CERD that stipulates condemnation of all propaganda and all organizations that promote racial discrimination.
Court’s Decision and Reasoning
Decision: there was a breach of Article 10 of the Convention.
The Swiss Government argued that such interference was allowed under Article 16 which allows imposition of restrictions on alien’s (the applicant) political activity. According to former Commission’s report on Piermont v. France, it states the article reflects outdated understanding of international law, and it was called to be repealed by Council of Europe. If the court relies on Article 16 to restrain aliens from exercising their right to expression guaranteed by the Convention, it may contradict court rulings in cases where aliens’ right to expression has been upheld without the suggestion of Article 16’s interference. Moreover, Article 16 can only be invoked when aliens’ activity has directly affected the political process which is not the case here. Hence, this argument was rejected.
Switzerland’s interference of applicant’s right to freedom is prescribed under Article 261 Swiss Criminal Code was not disputed, and the applicant could reasonably foresee his statements in the conference can hold him liable under that Swiss provision. The court also acknowledged that the Swiss Government intended to protect Armenians, however, it was not adequately established that the applicant’s statement amount to serious risk of public disorder as stated under Article 10(2) of the Convention. While it was accepted that the Swiss Government intended to protect Armenians’ rights, but no evidence showing that applicant’s statement is capable or caused public disturbance which require the Swiss authorities to regulate the disorder.
The court held that the statements were historical, legal and political in nature and rejected the argument that the applicant did not act properly in historical debate. The applicant’s statement did not amount to incitement to hatred because the topic concerned is sensitive and controversial in nature. Despite its nature, it does not diminish the fact that such topic remains of public interest. There was not evidence showing usage of abusive terms or try to stereotype the Armenians. Rather, his words were directed against the “imperialists” who stirred violence among them. Also, the court stated that the applicant’s membership of Talat Pasha does not mean vilifying the Armenians, but it was only his wish to debate the idea and the 1915 events. Therefore, the applicant’s statement was entitled to protection under Article 10 of the Convention, which allows limited interference from the Swiss Government and there was no public disorder for the Swiss Government to regulate.
The court was also not satisfied that Switzerland had the international legal duty to criminalize genocide denial. In Article 4 of CERD, it only requires State to criminalize racial, ethnic discrimination and not direct criminalization of genocide denial. According to UN Committee on the Elimination of Racial Discrimination, public denial or justification of genocide can be punishable only if it has racial violence or hatred incitement. Even in customary international law, Switzerland is not legally required to criminalize genocide denial. It is notable that the treaty applicable for it is Article 6(1) of the Additional Protocol to the Convention on Cybercrime, but it was yet to be ratified by Switzerland. Hence, Switzerland cannot argue that its international law obligation justified its interference of applicant’s right.
The court also held that since the applicant’s statement did not consider as discrimination, therefore it cannot be considered as affecting Armenian’s dignity to the extend of involving criminal conviction. It was concluded that applicant’s conviction was not needed in a democratic society because such topic has public interest, and it was not directly targeting against the Armenians.
Critical Analysis and Conclusion
While the case outcome significantly showed that historians can mobilize against state censorship on history related discussions, its significance also showed that genocide denial can be accepted under freedom of expression, as well as the inconsistencies in international law application. For instance, few years earlier, in Leroy v France (2008), the caricaturist claimed that the drawing of a terrorist attack in New York was just an anti-imperialist message and not glorification of the violence. The court rejected the argument and therefore, holding him accountable. In Peta Deutschland v Germany (2013), pictures of Nazi concentration camps were collaged together with pictures of animals in cages to raise awareness. The court allowed criminal sanction on animal rights activists and held no violation of freedom of expression. In less than a month after Perincek’s judgement, in Dieudonné M’BALA M’BALA v France (2015), a case that concerns condemnation of a French comedian who denied the Holocaust, it was held that the same Convention does not protect him for his statement. [1] Hence, it is obvious that there is no consistent application of international law.
This case also demonstrated international court’s failure to recognise anti-Armenian ideology. For instance, the Court failed to consider other relevant aspects, such as the fact that Perincek is the founder and part of Turkish Workers Party, therefore he represents the Turkey government, which his statement carries great weight. His statement is obviously propagation of the Turkish agenda, that is accusing the Armenians in falsifying history and claimed that Armenians killed more Turks. This similar sentiment is shared by an article released by Turkey’s Ministry of Foreign Affairs, where Turkey claimed that the Ottoman Empire took precautions to safely relocate the Armenians, and stated it would be factually problematic to call 1915 event as “genocide”.[2] Also, the court failed to consider Perincek as a great admirer of Talat Pasha, a convicted war criminal and the architect of Armenian Genocide, makes the case outcome questionable. [3]
In Judge Nussberger’s dissenting opinion, she acknowledged that historical discussion is important in a democratic society, but limits are necessary especially when the discussion turned into violation of other’s dignity and intimate feelings, such as the criminalisation of Holocaust denial in many states like Germany and Belgium. The Holocaust and Armenian Genocide essentially involves mass killings of an ethnic group, therefore there should be no reason to give different treatment to these events.
In joint dissenting opinion of other judges, it is possible that a state prosecutes the offender for insulting the memory of genocide victims without overstepping boundaries. To them, the applicant intended to insult the Armenians, because it contains false misrepresentations that is directed at Armenians and tried to justify Ottoman authorities’ action under the guise of selfdefence. The fact that the applicant said it was the imperialist force who stirred violence among Armenians, implying that Armenians are the aggressors here, thus overstepping the boundaries of Article 10 of the Convention.
The judges also criticised the court’s methodology in assessing the situation. The geographical factor considered by the Court only watered down the universality of human rights, especially when under international law, the principle of human rights protection has been recognised, such as the Declaration and Programme of Action adopted by World Conference on Human Rights in Vienna. The judges opined that the court’s emphasis on time factor is problematic. The court basically stated that because the time between the 1915 event and the resurgence of the debate topic, criminalisation of Armenian Genocide would be unreasonable. This approach implies that Holocaust denial may be acceptable for freedom of expression’s sake in twenty- or thirty-years’ time.
Considering this problematic methodology used by international courts when determining whether the statement give rise to punishable hate speech, a better framework is ought to be proposed: one, the objective intent of the speaker test similar to Brandenburg v Ohio (1969) ; two, the domestic and international effect of the statement; and three, the statement’s severity under history context. This allows the court to properly assess the weight of the statement. With the objective intent test, most likely the courts would have found Perincek’s statement as spreading Turkish propaganda of denial and suppression, as well as intended to cause future violence by justifying ideology that undermines the Armenian Genocide. As for the second test, although there is no direct causal link between Perincek’s statements and violence happen in Switzerland or in Turkey, but the case outcome indicates that the ideology of denying Armenian genocide is accepted under the guise of freedom of expression. Lastly, it is important to assess the statement based on historical context by examining history events and how these statements are used to silence the oppositions.[4]
In conclusion, the court’s attitude in prosecuting genocide denial is worrying. This case showcased how the international court failed to uphold universal human rights, tarnishing surviving generations’ dignity and undermining peace and protection of surviving members of the horrific event.
Reference (S)
- Morte GD, ‘When Is a Criminal Prohibition of Genocide Denial Justified? The Perinçek Case and the Risk of a Double Standard’ (QIL QDI, 5 August 2016) <https://www.qilqdi.org/criminal-prohibition-genocide-denial-justified-perincek-case-risk-doublestandard/> accessed 19 March 2025
- ‘The Events of 1915 and the Turkish-Armenian Controversy over History: An Overview’ (Republic of Turkey Ministry of Foreign Affairs )<https://www.mfa.gov.tr/the-events-of-1915-and-the-turkish-armenian-controversyover-history_-an-overview.en.mfa> accessed 19 March 2025
- 1 Belavusau U, ‘Perinçek v. Switzerland: Between Freedom of Speech and Collective Dignity’ (Verfassungsblog, 5 November 2015) <https://verfassungsblog.de/perincekv-switzerland-between-freedom-of-speech-and-collective-dignity/> accessed 19 March 2025
- Nashalian SN, ‘A CRITIQUE OF PERIN¸ CEK V. SWITZERLAND:INCORPORATING AN INTERNATIONAL AND HISTORICAL CONTEXT IS THE MORE PRUDENT APPROACH TO GENOCIDE DENIAL CASES’ (2018) 24 Southwestern Journal of International Law 171
[1] Morte GD, ‘When Is a Criminal Prohibition of Genocide Denial Justified? The Perinçek Case and the Risk of a Double Standard’ (QIL QDI, 5 August 2016) <https://www.qil-qdi.org/criminal-prohibition-genocide-denialjustified-perincek-case-risk-double-standard/> accessed 19 March 2025
[2] ‘The Events of 1915 and the Turkish-Armenian Controversy over History: An Overview’ (Republic of Turkey
Ministry of Foreign Affairs ) <https://www.mfa.gov.tr/the-events-of-1915-and-the-turkish-armeniancontroversy-over-history_-an-overview.en.mfa> accessed 19 March 2025
[3] Belavusau U, ‘Perinçek v. Switzerland: Between Freedom of Speech and Collective Dignity’ (Verfassungsblog, 5 November 2015) <https://verfassungsblog.de/perincek-v-switzerland-between-freedom-of-speech-andcollective-dignity/> accessed 19 March 2025
[4] Nashalian SN, ‘A CRITIQUE OF PERIN¸ CEK V. SWITZERLAND: INCORPORATING AN INTERNATIONAL AND HISTORICAL CONTEXT IS THE MORE PRUDENT APPROACH TO GENOCIDE DENIAL CASES’ (2018) 24 Southwestern Journal of International Law 171
