This guest post was written by Dirk Voorhoof*. The post is a shortened version of an original contribution by the same author, which first appeared on the ECHR Blog. It is reproduced here, in shortened version, with permission and thanks.
In Perinçek v. Switzerland, the European Court of Human Rights ruled on 17 December 2013, by five votes to two, that Switzerland had violated Doğu Perinçek’s right to freedom of expression by convicting him for publicly denying the existence of a genocide against the Armenian people. On several occasions, Perinçek – at the time chairman of the Turkish Workers’ Party – had described the Armenian genocide as “an international lie”. He had particularly insisted that whatever massacres had taken place did not meet the definition of genocide under international law.
The Swiss courts found Perinçek guilty of racial discrimination, ruling that the Armenian genocide, like the Jewish genocide, was a proven historical fact. The Swiss courts found that Perinçek’s motives for denying that the Ottoman Empire had perpetrated the crime of genocide against the Armenian people were of a racist tendency and did not contribute to any historical debate.
In its judgment, the European Court first found that Perinçek had not abused his rights within the meaning of Article 17 of the Convention, which prohibits activities aimed at the destruction of others’ rights and freedoms. 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 emphasised that the limit beyond which comments may engage Article 17 lay in the question whether the aim of the speech was to incite hatred or violence (§ 52). According to the Court, rejecting the legal characterisation as “genocide” of the 1915 events was not such as to incite hatred against the Armenian people. The Court was therefore of the opinion that Perinçek has not abused his right to freedom of expression in a way prohibited by Article 17 of the Convention (§ 54).
From the perspective of Article 10 of the Convention, the Court agreed with the Swiss courts that Perinçek could not have been unaware that by describing the Armenian genocide as an “international lie”, he was exposing himself on Swiss territory to a criminal sanction “prescribed by law”. The Court also found that the aim of the applicant’s conviction was to protect the rights of others, namely the honour of the relatives of victims of the atrocities perpetrated by the Ottoman Empire against the Armenian people from 1915 onwards.
The crucial question was whether the prosecution and conviction of Perinçek had been “necessary in a democratic society”. In answering that question, the Court first stated that its standard principle that freedom of expression includes information and ideas that can offend, shock or disturb is also applicable within the domain of an open debate amongst historians (§ 102). The Court found that discussion of the Armenian “genocide” is of great interest to the general public and that Perinçek had engaged in speech of a historical, legal and political nature which was part of a heated debate. As a result, the Court held, the margin of appreciation of the Swiss authorities to decide whether the interference with Perinçek’s freedom of expression was justified and necessary in a democratic society was narrow (§§ 112-113).
However, according to the Court it is still very difficult to identify a general consensus about the qualification of the Armenian “genocide”. Furthermore, the Court insisted, the notion of “genocide” is a precisely defined and narrow legal concept, difficult to substantiate. Finally, the Court held, historical research is by definition open to discussion and a matter of debate, without necessarily leading to final conclusions or absolute truths:
En tout état de cause, il est même douteux qu’il puisse y avoir un « consensus général », en particulier scientifique, sur des événements tels que ceux qui sont en cause ici, étant donné que la recherche historique est par définition controversée et discutable et ne se prête guère à des conclusions définitives ou à des vérités objectives et absolues. (§ 117)
In the remainder of its reasoning, the Court took the view that the Swiss authorities had failed to show how there was a social need in Switzerland to punish an individual for racial discrimination on the basis of declarations challenging only the legal characterisation as “genocide” of acts perpetrated on the territory of the former Ottoman Empire in 1915 and the following years. According to the Court such a pressing social need did exist regarding the denial of the Holocaust, but not with regard to the Armenian “genocide” (§ 119).
The Court concluded that Perinçek’s conviction had not been dictated by a “pressing social need”. It specifically pointed out that it had to ensure that any imposed sanction would not constitute censorship, which would lead people to refrain from expressing criticism as part of a debate of general interest. Under the current circumstances, the Court considered the criminal conviction of Perinçek to be unjustified, in violation of Article 10.
Finally, it is not surprising that the judgment on the controversial issue of the (denial of the) Armenian genocide was not unanimous. Indeed, Judges Vučinić (Montenegro) and Pinto de Albuquerque (Portugal) expressed a joint partly dissenting opinion in which they argued that the conviction of Perinçek did not amount to a violation of Article 10 of the Convention.:
The refusal by the European Court to consider Perinçek’s statements as “abusive speech” under Article 17 of the Convention reflects legitimate concerns about the inherent dangers of applying the so-called abuse clause in cases of freedom of political expression and debate on matters of public interest. It is indeed preferable that the application of Article 17 in freedom of expression cases remains very exceptional, as “une mesure que la Cour n’a que très rarement appliquée” (§ 47). One can even argue that applying the abuse clause to resolve free speech disputes is undesirable in all circumstances (see H. Cannie en D. Voorhoof, “The Abuse Clause and Freedom of Expression in the European Human Rights Convention : an Added Value for Democracy and Human Rights Protection?” NQHR Vol. 29/1, 54-83, 2011), but the European Court clearly does not share that approach, yet.
Still, the Court appears to be willing to accept that a mere denial of historical facts, whether they are a genocide, a crime against humanity or a massacre, can be a sufficient justification for a restriction on the right of freedom of expression and eventually for the application of Article 17. Indeed, the Court considers it “important” that Perinçek has not denied the facts of the Armenian deportations and massacres, and that he was only denying the legal qualification to be given to these facts (§ 51). One can however question the relevance of this consideration, as the Court’s position in the next paragraph of its judgment clearly demonstrates that a denial as such of a genocide or crimes against humanity is not excluded from the protection under Article 10 (§ 52).
Furthermore, the Court rightly pointed out that this case is not about the legal, historical or political recognition of the existence of the Armenian “genocide”, but only about the necessity of the criminal conviction of Perinçek by the Swiss authorities because of the content of certain speeches Perinçek held in Switzerland. It is certainly not up to the European Court to decide this issue:
La Cour rappelle par ailleurs que, si la recherche de la vérité historique fait partie intégrante de la liberté d’expression, il ne lui revient pas d’arbitrer des questions historiques qui relèvent d’un débat toujours en cours entre historiens. (§ 99)
The essence of the message of the Court’s judgment is indeed that the legal, political and historical discussion about facts situated in history should be open and that all opinions discussing or interpreting these facts, including provocative, offensive or disrespectful opinions, should in principle be protected by Article 10 of the Convention.
At a certain point in its legal reasoning (§§ 114-116), the Court however gave the impression that it is because of the lack of a general consensus about whether the massacres and deportations in Armenia in 1915 and the years after constituted a genocide, that the denial by Perinçek of the existence of the Armenian genocide was acceptable. The Court did seem to be aware that accepting such an approach would risk installing certain historical truths by law, based on a general consensus, which can then not be denied or critically and vehemently discussed. Therefore the Court clarified that it is doubtful anyhow whether on such issues there can be ever a general consensus (§ 117, cited above).
The Court nevertheless accepted one exception, namely the criminalisation of denial of the Holocaust (§ 118), since according to the Court there is a general consensus about the Holocaust. Accepting that the denial of the Holocaust is as such a justifiable restriction on freedom of expression contrasts with the approach expressed by the UN HRC in its General Comment nr. 34. In this Comment, interpreting the actual scope, impact and application of the right to freedom of opinion and expression under 19 Article ICCPR, the HRC opposed “memory-laws” explicitly (§ 49). Although the Court referred to and even quoted from General Comment nr. 34 in its judgment, it missed the opportunity to elaborate on this approach. It would indeed have been preferable if the Court had made clear that the criminal prosecution and conviction for denial of historical facts, also of those on which there is general consensus like the Holocaust, is only justified from the perspective of Article 10 in so far as the denial of those facts at the same time intentionally incites to hatred, discrimination or violence against a person or a group of persons. What can be criminalised from the perspective of Article 10 is incitement to hatred and violence, while the contestation or denial itself of historical facts should not, and should never be, defined as a criminal offence.
The judgment in this case will become final on 17 March 2014, unless the case is referred to the Grand Chamber under Article 43 of the Convention. In some statements or preliminary reactions on the Court’s judgment it is argued why the Swiss Government should request such a referral in order to find Perinçek’s conviction necessary in a democratic society. I sincerely doubt if a judgment by the Grand Chamber could ever lead to such an outcome in this case. If it would, it would certainly be a sad day for freedom of expression in Europe.
“UPDATE: The case was referred to the Grand Chamber on the 2nd of June 2014”
* Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre at Ghent University. See also Freedom of Expression, the Media and Journalists : Case Law of the European Court of Human Rights, an e-book recently published by the European Audiovisual Observatory (Strasbourg).