Note: this is a revised version of the original post published on 21 December 2013. Additions have been made to better address some of the concerns expressed by readers in their comments.
On 17 December 2013, the European Court of Human Rights ruled by five votes against two that Switzerland violated the right to freedom of speech by convicting Doğu Perinçek, chairman of the Turkish Workers’ Party, for having publicly denied the existence of any genocide against the Armenian people.
On several occasions, the applicant had claimed that the idea of an Armenian genocide was ‘an international lie’. The reasoning adopted by the Swiss courts to find him guilty of racial discrimination (see the judgment of the Swiss Federal Tribunal) rested inter alia on the identification of a consensus about the existence of the Armenian genocide. In the view of the Swiss courts, because the Armenian genocide was the object of a ‘general historical and scientific consensus’, its existence had to be considered established as a matter of fact and could not be challenged in court – even though the issue had not been previously adjudicated by a court of law, and despite the fact that some degree of controversy persisted as to the legal qualification of these events.
II. The Court’s Decision
As a preliminary matter, the European Court of Human Rights first examined whether the applicant’s discourse constituted an abuse of rights. Article 17 of the European Convention on Human Rights prevents anyone from using his right to freedom of expression for ends which are contrary to the text and spirit of the Convention. This is in particular the case when comments incite to violence or racial hatred. The Court did find that the applicant’s comments were provocative and that they ‘could be assimilated to an attempt to justify the acts committed by the Ottoman Empire’. However, it could not come to the conclusion that they were tantamount to an incitement to racial hatred.
Having concluded that the applicant’s comments did not amount to an abuse of rights, the Court proceeded to reviewing the merits of the complaint. It indicated that it was not incumbent upon it to arbitrate controversial historical questions and make factual or legal findings concerning the massacres and deportations that occurred in Turkey in 1915. The Court limited itself to examining whether the interference in the applicant’s freedom of expression by the Swiss judicial authorities pursued a legitimate aim and was necessary in a democratic society.
The Court first acknowledged that the decision of the Swiss courts was ‘susceptible to serve the protection of the rights of others, namely the honour of the family and relatives of the victims of the atrocities committed by the Ottoman Empire against the Armenian people’.
However, it found that, considered as a whole, the motives of the Swiss authorities were insufficient to warrant interference with the applicant’s rights. The Court recalled its jurisprudence on the freedom of speech, stressing that the protection of the Convention extends ‘not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb’. Any restriction of the freedom of expression must respond to ‘a pressing social need’.
In assessing whether the interference was necessary, the Court first noted that the state’s margin of appreciation in this case was reduced because the comments of the applicant were part of a historical, legal and political debate of public interest. Then, the Court expressed caution about the ‘consensus approach’ adopted by the Swiss courts: it pointed out that a consensus was difficult to establish in relation to matters which, in the Court’s opinion, cannot be historically ascertained with absolute certainty, especially in view of the fact that genocide is a very specific and narrowly defined legal concept requiring a high threshold of proof. Finally, the Court cited pertinent developments before domestic courts in France and Spain and before the Human Rights Committee concluding that the criminalisation of opinions about historical facts that do not incite to violence or racial hatred cannot be justified.
The verdict reached by the Court is most welcome. The line of reasoning of the Swiss authorities was indeed troubling, as it came very close to establishing a form of ‘dictature de la pensée unique’: a system which places one single opinion above all others, criminalises disagreement, and precludes any form of debate or discussion. As the Court rightly recalled, disturbing or shocking opinions deserve the full protection of the law. Provided that they do not incite to violence or racial hatred, opinions we deem unfounded, inappropriate, or despicable should be subject to debate and argumentation, not blind suppression. Indeed, as the Court has regularly stressed, ‘[s]uch are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”’.
The Court also reminds us of the necessity of ‘reducing genocide to law’. Brandished as a rhetorical and political weapon, the term ‘genocide’ has been used, misused and abused ad nauseam by a variety of actors seeking to further particular agendas. Yet this word should not be ascribed more significance or meaning than it actually has. Genocide remains above all a legal construct – nothing more, and nothing less. It should be kept in mind that the crime of genocide as defined under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide requires the specific ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. Crimes need not necessarily reach a certain scale or level of atrocity to be characterised as genocide under the law. Conversely, widespread or systematic atrocities may not present the constitutive elements of genocide.. Therefore, the fact that certain crimes have not been characterised as genocide does not necessarily make them any less serious. The events painfully remembered by the Armenian people as Meds Yeghern (‘the Great Crime’) may well have constituted genocide. However, because such determination is conditioned by formal legal criteria and because it entails specific legal consequences (such as individual criminal responsibility or state responsibility), it is an issue that should ultimately be decided by a court of law. Unfortunately, significant legal obstacles stand in the way of any judicial pronouncement on this matter. Be that as it may, even if a court were able to rule, disagreement about the validity of the judges’ findings should arguably still be tolerated as long as it does not constitute hate speech.
As indicated by judges Raimondi and Sajó in their separate opinion, the decision of the Court should not be interpreted as downplaying in any way the seriousness of the crimes committed against the Armenian people. This is perhaps why the Court’s reasoning is, in certain respects, so frustrating. It does not tell us with satisfying clarity why certain negationist comments deserve to be criminalised while others do not. Moreover, while the Court pretended to adopt a neutral position with respect to the existence of an Armenian genocide, it actually did take a stance by stressing the absence of a sufficient consensus on this question. The precautions taken by the Court are, of course, understandable. Yet some may legitimately feel that the Court’s decision, behind all its prevarications, lacks the courage necessary to answer those questions.