The Grand Chamber of the European Court of Human Rights (ECtHR) has ruled that Switzerland was in violation of Turkish politician Doğu Perinçek’s Article 10 right to freedom of speech. Perinçek was appealing a criminal conviction having publicly denied the existence of the genocide against the Armenian people.
Perinçek had on several occasions in his capacity as Chairman of the Turkish Workers’ Party publicly described the Armenian genocide as ‘an international lie.’ He was prosecuted under Article 261 bis § 4 of the Swiss Criminal Code for ‘the denial, gross minimisation or attempt of justification of a genocide or crimes against humanity.’ According to the Swiss courts, the Armenian genocide, like the Jewish genocide, was a proven historical fact.
The Second Section of the ECtHR found that Perinçek’s rejection of the legal characterisation of genocide was not such as to incite hatred or violence against the Armenian people. It held instead that he was engaging in historical and political debate of the type that Article 10 of the European Convention of Human Rights (ECHR) specifically protects. In conclusion, the Court felt that the Swiss authorities had failed to prove that the conviction did not amount to a type of censorship which would lead people to refrain from exercising their right to freedom of expression. Thus, the domestic authorities were held to have overstepped their narrow margin of appreciation.
The Grand Chamber’s affirmation of this ruling was by the narrow margin of ten votes to seven with the minority, including the President of the Court, claiming vigorously that Perinçek’s conviction did not amount to a breach of his right to freedom of expression. These judges felt that such matters relating to freedom of speech fell within a State’s margin of appreciation, with limited supervisory role of the ECtHR generally. The majority, however, took a much narrower view of the margin of appreciation and performed an in-depth examination into whether the conviction was ‘necessary in a democratic society.’ Their reasoning was similar to that of the Second Section, emphasising that the comments were not such as to incite hatred or violence but were merely part of heated public debate. Thus, the Court concluded that ‘it was not necessary, in a democratic society, to subject the applicant to a criminal penalty in order to protect the rights of the Armenian community at stake in the present case.’
Click here for the decision of the Grand Chamber.