Perinçek vs. Switzerland on the backstage: the majority approach and the separate opinion of Judge Nussberger.

 

  1. Introduction.

On the 15th of October 2015 the Grand Chamber of the European Court of Human Rights (the Court) issued its second instance judgment in the case of Perinçek v. Switzerland. This judgment has the potential to play a central role in the Court’s case law on Article 10 of the European Convention on Human Rights (the Convention), relating to freedom of expression, as well as contributing to the wider cultural and historical debate about the sensitive issue of genocide denial.

This post will focus, in particular, on the main conclusions of the judgment and the partly concurring and partly dissenting opinion of Judge Nussberger, who contested the points in the judgment that this post will highlight as the most interesting.

2. The facts.

The case originated from the application of a Turkish national, Mr. Dogu Perinçek, a doctor of laws and the chairman of the Turkish Workers Party. During several conferences in Swizterland, the applicant publicly denied that the mass atrocities perpetrated by the Ottoman Administration in 1915 against Armenians amounted to genocide. While Mr Perincek did not deny that killings and deportations took place, he contested the legal characterisation of the acts as “genocide” and defined the term “Armenian genocide” as an “international lie”. However, on the basis of his statements, he was found guilty of “racial discrimination” under Article 261bis para 4 of the Swiss Criminal Code and he was convicted. The Chamber and the Grand Chamber, albeit on the basis of partly different reasons, held that the conviction and the associated punishment constituted a disproportionate interference with the exercise of his right to freedom of expression and violated Article 10 of the Convention. However, it is noteworthy that both Chambers also underlined the fact that their decisions did not have any implications on the ongoing debate regarding whether the massacres and deportations of the Armenians legally constituted genocide.

3. The application of Article 10 para 2: the Grand Chamber between legal concepts and historical debate.

In its judgment, the Grand Chamber tries to avoid touching upon certain sensitive issues which are not strictly relevant to its decision (such as whether the massacres constituted genocide).[1] Nevertheless, the case has raised several interesting issues, although only some of them can be qualified as legal problems, strictly speaking.[2]

The Court first analysed whether the interference with Article 10 of the Convention was lawful and had a legitimate aim (a); then, it assessed whether it was necessary in a democratic society (b).

In the course of analysing whether the interference was lawful and pursued a legitimate aim, the following controversial issues emerged: the foreseeability of both the norm and the criminal penalty, where the Court found that the approach of the Swiss authorities could reasonably be expected;[3] the definition of the “prevention of disorder” (partly contrasting with the wider concept of the “interest of public order), in regard to which it found no evidence that, at the time that they were made, the applicant’s statements were perceived by the Swiss authorities as a means of aggression capable of leading to public disturbances, in spite of the presence of both Armenian and Turkish communities in Switzerland; [4] and the protection of the rights of others (the contemporary Armenians), which the Court accepted as a justification for an interference of the applicant’s freedom of expression (the same could not be said for the protection of the honour of the victims).[5]

The Court finds that the criminal conviction of the applicant represented an unfair interference (unnecessary in a democratic society) with his freedom of expression and violated Article 10 of the Convention.

Under the Convention, the existence of a pressing social need for the interference must be balanced against the protection of the Armenian community’s rights covered by Article 8 and the right to freedom of expression.[6] In order to determine that the acts of the Swiss government were proportionate and, therefore, constituted the permissible interference with the right protected by Article 10, a link between the conviction of the applicant and the protection of the dignity of the Armenian community in general should have been established. Even if the Armenian community had possibly built its identity also based on the qualification of Armenian people as victims of mass atrocities (whose protection is consonant with the universal protection of human rights), there was no evidence that the above-mentioned link existed in the current case.[7]

Two points, among others, in the final part of the Court’s reasoning deserve particular attention.

The evaluation of the context of the interference: historical, geographical and time factors.              

The Court evaluated the geographical and historical context in which the statements were made. This stage of the reasoning inevitably involved a comparison with the phenomenon of Holocaust denial in western democracies, an issue consistently present in the background of the judgment.[8]

The Court found that the historical experience of each country must play a central role in the determination of the social and moral responsibility of States to outlaw mass atrocity denial; at this point, it is worth highlighting which public statements (and other forms of expression) are actually incompatible with democracy and human rights and, for that reason, not protected by the Article 10 of the Convention.[9] While the phenomenon of Holocaust denial in European countries had been considered extremely dangerous for the protection of the identities, because of the risk of a resurgence of racial discrimination and anti–Semitism, the Court apparently did not find this to be the case in relation to the facts related to the Armenian massacre in Switzerland in the 21st century. Although the Armenian community in Switzerland was in open disagreement with the view of the Turkish community about the legal characterisation of the 1915 events, this did not increase the risk of creating a tense atmosphere or of other dangerous consequences, such as, the promotion of racism and an antidemocratic agenda.[10] The Court also remarked that due to the considerably long time lapse between the historical events and Perinçek’s statements, it would be inappropriate to deal with them severely.[11]

The international law obligation to criminalise genocide denial. 

The Court was then called to determine whether or not the interference by the Swiss authorities could have been justified by an obligation to criminalise genocide denial under international law. In this respect, it did not find any international legislative tool (among treaties or customary law) which could reasonably create a binding international law obligation. According to the UN Human Rights Committee, the relevant provisions of the ICCPR provide that, unless the conduct, was incompatible with the prohibition of incitement to violence, hatred and racial discrimination, the freedom of expression and of opinion must be always guaranteed and protected. [12]

4. The partly concurring and partly dissenting opinion of Judge Nussberger.

In her separate (partly concurring and partly dissenting) opinion, Judge Nussberger interestingly challenged one of the main conclusions of the Court.[13] While she accepted the main conclusion on the violation of Article 10 of the Convention, even if by following a different pathway, she rejected the majority approach, contesting the unreasonable distinction between Holocaust denial and the denial of the Armenian genocide, as well as the weakness of the “geographical factor” and the “time lapse” arguments.

Judge Nussberger affirmed that it appeared to be unclear why only those sanctions imposed by the State Parties for the Holocaust denial have been considered compatible with the spirit and the provisions of the Convention. In order to justify the criminalization of its denial, the Court had referred to the notion of public order needs (that is, prevention of the incitement to violence and racial discrimination) and the historical and geographical links between the Nazi crimes and the duty of the States that had been affected, to criminalise its denial . Judge Nussberger rejected this approach, stating that these factors could lead to the wrong conclusion that it is only those States directly involved in mass atrocities and/ or genocide have the moral responsibility to distance themselves from these events.[14]

Notwithstanding the judgment’s consistent argument that there exists no international law obligation to criminalise genocide denial, the doubts created by the ineluctable comparison with Holocaust denial cannot be ignored, especially because of two elements: first, the arguments based on the ‘geographical’ factor and ‘time lapse’ do not appear to be strong enough to defend against the clear discrepancy in the way the denial of two mass atrocities of the 20th century are treated; second, the debate on the legal qualification of (and also on the search of the historical truth about)  the Armenian events of 1915 has gained a central position in the international arena which ought not to be difficulty underestimated.

5. Conclusion.

 At the end of this brief overview of the main controversial points of the final judgment in Perinçek, one could conclude that, despite several attempts at reaching a consistent and strictly legal solution to the case, the judgment has an undeniable impact on the cultural debate that cannot be overlooked.

The reasoning of the Court has offered the opportunity to reflect on some matters which emerged from the sensitive comparison with Holocaust denial, namely: first, the need to balance the freedom of the expression with the risk of compromising the public order, as well as, the sense of identity of individuals and communities, which gave an interesting point of view about protection of minorities’ rights and its link with the prevention of public disorder; second, the importance of considering both time and the historical factors when evaluating whether, in accordance with the spirit of universal protection of human rights, a duty the States to criminalise mass atrocities denial does exist.

 

[1] Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015) § 100 – 102.

[2] The G.C. dealt with the position of the Court regarding the “Historical debates” from para. 213 to para. 220 of the judgment.

[3] This is particularly in view of the Swiss National Council’s 2003 motion recognising the 1915 events as genocide..

[4]Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), § 148 – 154.

[5] Although the applicant’s statements did not aim to direct the accusation of the Armenian genocide “as international lie” towards the victims, his definition of Armenians as “instruments of the imperialism” could be seen as affecting the dignity of the Armenians, therefore justifying interference with his right to freedom of expression.

[6] In determining whether the decisions of the authorities were compatible with the Convention, the margin of appreciation of the national Courts in their jurisdictions must be evaluated case by case

[7] In addition, in terms of the possible remedies that could have been adopted to interfere with the right to freedom of expression (e.g. the civil remedies) within the marginal of appreciation of the Swiss authorities, the criminal conviction certainly appears to be the most serious form of interference and that has resulted in the lack of proportionality.

[8] Paras 209 – 220.

[9]  See X. v. The Federal Republic of Germany, no. 9235/1981, Commission decision of 16 july 1982, Decision and reports (DR) 29, p. 194; Marais v. France, no. 31159/96, Commission decision of 24 june1996, DR 86- B, p. 184; Witzsch v. Germany app. No. 41448/98 (ECtHR 20 April 1999), Gollnisch v. France app.no. 48135/08 (ECtHR 7 June 2011).

[10] The situation might have been different judged in a country where the hostility between the communities could have provoked hatred towards the Armenians or could have otherwise impacted the protection of the rights of the minority.

[11] About the likelihood that controversial remarks about historical facts could bring back memories of past suffering see among others Editions Plon v. France, app. No. 58148/2000 (ECtHR 2004 – IV) and Hachette Filipacchi Associes v. France, app. no. 7111/01 (ECtHR 14 June 2007).

[12]  CCPR/C/GC/34, 102nd session of the UN Human Rights Committee.

[13] The judgment also has a Joint dissenting opinion of Judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kuris and an Additional dissenting opinion of Judge Silvis, joined by Casadevall, Berro and Kuris.

[14] Then, to support this affirmation, he added that “to seek to vindicate the rights of victims of mass atrocities regardless of the place where they took place is consonant with the spirit of the universal protection of human rights and wholly sufficient to justify legislation of this kind” in Judge Nussberger, separate opinion, in Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), recalls at S.A.S. v. France (GC) (ECtHR 2014), § 153.

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