The European Court Decision in Perspective

Robertson and Clooney Call Switzerland v. Perincek Judgment a Victory for Armenia

STRASBOURG, France (A.W.)—The European Court of Human Rights (ECHR) today publicized its deliberation on the Perincek v. Switzerland case, upholding Dogu Perincek’s right to free speech, which the court found was violated by a Swiss court in 2007. The ECHR ruling, which was delivered on narrow grounds, abstained from passing judgments or opinions on a number of issues, from whether Perincek’s statements amounted to genocide denial, to whether the Armenian Genocide could be characterized as genocide. Attorneys Geoffrey Ronald Robertson and Amal Alamuddin Clooney, who represented Armenia as a third party in the case, called the verdict “a victory for Armenia” because the Grand Chamber moved away from the judgment of the lower court, which had “cast doubt” on the veracity of the Armenian Genocide.

In 2007, a Swiss court had fined Perincek, a Turkish ultra-nationalist activist and chairman of Turkey’s Workers’ Party, for his public statements calling the Armenian Genocide an “international lie.” In their appeal to the ECHR, Perincek’s defense argued the Swiss court had violated Perincek’s right to freedom of expression; the court ruled in his favor in 2013. On March 7, 2014, Switzerland filed an appeal, which led to a Grand Chamber hearing in January and today’s judgment.

The court summarized its judgment in the following statement: “Mr. Perincek’s statements bore on a matter of public interest and did not amount to a call for hatred or intolerance; the context in which they were made had not been marked by heightened tensions or special historical overtones in Switzerland; the statements could not be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland; there was no international law obligation for Switzerland to criminalize such statements; the Swiss courts appeared to have censured Mr. Perincek simply for voicing an opinion that diverged from the established ones in Switzerland; and the interference with his right to freedom of expression had taken the serious form of criminal conviction.”

The ECHR noted that it had to “strike a balance between two Convention rights—the right to freedom of expression and the right to respect for private life.”

In a statement issued following the judgment, Robertson and Clooney stressed that “Perincek is a provocateur who should not have been made the martyr that he was so keen to become.” They also noted that the court rejected Perincek’s demand for compensation in the sum of 120,000 euros. “[They] awarded him nothing—not even his own legal fees,” read the statement.

Armenian National Committee of America (ANCA) Government Affairs Director Kate Nahapetian also commented on the ruling. “A sharply divided European Court for Human Rights failed to consistently apply fundamental principles of law and justice in the Perincek case, resulting in a mixed decision. The court’s conflicted and contradictory judgment, while offering deeply troubling protection for hate speech, does create meaningful new opportunities for progress in ending Turkey ‘s denials and ultimately reaching a truthful and just resolution of the Armenian Genocide,” she said.

During the highly publicized Grand Chamber hearing in January, Armenia’s legal team was comprised of Armenia’s Prosecutor General Gevorg Kostanyan, and attorneys Robertson and Clooney. Perincek was represented by Mehmet Cengiz and Christian Laurent Pech. Stefan Talmon represented the Turkish government.

Third-party comments were submitted by the Turkish, Armenian, and French governments, as well as the Switzerland-Armenia Association; the Federation of the Turkish Associations of French-Speaking Switzerland, the Coordinating Council of the Armenian Organizations in France (CCAF), the Turkish Human Rights Association, the Truth Justice Memory Centre and the International Federation for Human Rights (FIDH), the International League against Racism and Anti-Semitism (LICRA), the Centre for International Protection, and a group of Belgian and French academics.

 

ECHR Abstains from Determining the Nature of the Crime

On one important point, the court abstained from providing an opinion. The court held that “it was not required to determine whether the massacres and mass deportations suffered by the Armenian people at the hands of the Ottoman Empire from 1915 onwards could be characterized as genocide within the meaning of that term under international law; unlike the international criminal courts, it had no authority to make legally binding pronouncements on this point.”

A statement posted on the official website of Armenia’s Prosecutor General held that the ECHR judgment was “very good” for Armenia. According to that statement, the verdict overrules comments offered by the judges in the lower court who had questioned the veracity of the Armenian Genocide.

Similarly, attorneys Robertson and Clooney, in their statement issued following the verdict, noted: “Armenia intervened in the case for one reason: the lower court had cast doubt on the fact that a genocide against the Armenian people occurred in 1915. As counsel we sought to correct this grave error, and the Grand Chamber has done so. Today’s judgment did not dispute the fact of the Armenian genocide: Ten judges said the question should not have been addressed at all whilst seven stated that ‘the Armenian genocide is a clearly established historic fact.’”

During the Jan. 28, 2015 Grand Chamber hearing, Perincek’s lawyer Mehmet Cengiz said that the core of the issue was the legal definition of “the tragic events that took place a hundred years ago in the Ottoman Empire.”

During that hearing, Perincek said that his legal team submitted about “90 kilos” of documents to the court as evidence to prove why the Armenian Genocide should not be labeled as such. Two days before the hearing, he had declared that the Strasbourg court would “finalize the lie of Armenian Genocide.”

In her statements during the Grand Chamber hearing, Clooney said that “the most important error by the court below is that it cast doubt on the reality of the Armenian Genocide that the people suffered a hundred years ago.”  She argued that this finding on the genocide was not necessary in the case, that it was reached without a proper forensics process, and, most importantly, that it was wrong. “This court is not the forum and Mr. Perincek is not the case in which to determine state responsibility for the crime of genocide. But if this chamber were minded to make such a judicial determination, then Armenia must have its day in court. We would, in that case, welcome the opportunity to submit evidence, which we consider to be overwhelming, that the massacres that killed over a million Armenians would today be labelled as genocide,” said Clooney.

The court also avoided defining the nature of Perincek’s statement. The court’s statement read: “In examining the nature of Mr. Perincek’s statements, the Court did not seek to establish whether they could properly be characterized as genocide denial or justification for the purposes of the Swiss Criminal Code. That question was for the Swiss courts to determine.”

 

Court’s Opinion on State’s Right to Protect Rights of Citizens

The Grand Chamber also noted that “the Court found that the [Swiss court’s] interference could be regarded as having been intended ‘for the protection of the…rights of others’ within the meaning of Article 10.2. It noted that many of the descendants of the victims of the events of 1915 and the following years, especially in the Armenian diaspora, constructed their identity around the perception that their community had been the victim of genocide. The Court thus accepted that the interference with Mr. Perincek’s rights had been intended to protect that identity and thus the dignity of present-day Armenians.”

Citing a part of the aforementioned statement, Armenia’s Prosecutor General’s Office noted: “This is a ruling of great importance. It means that states in Europe can punish Armenian Genocide denial if it is calculated to incite violence or racial disharmony.   The problem with the Swiss prosecution of Perincek was that he is a worthless provocateur whose speech would not have been taken seriously or done any harm, so there was no need in a democratic society to use criminal law against him.”

The problem with the Swiss prosecution of Perincek was that he is a worthless provocateur whose speech would not have been taken seriously or done any harm, so there was no need in a democratic society to use criminal law against him.

Robertson and Clooney echoed this point in their statement. “The judgment upholds the Armenians’ right under European law to have their dignity respected and protected, including by recognition of a communal identity forged through suffering from the annihilation of over half their race by the Ottoman Turks,” they noted.

The prosecutor general’s statement went on to conclude that the court’s “reaffirmation of free speech principles” signifies that individuals cannot be prosecuted in Turkey under its infamous Article 301, which criminalizes “insulting Turkishness.”

 

Dissenting Judges

Seven of the 17 judges dissented, and submitted a “Joint Dissenting Opinion.” The judges criticized the majority’s “understanding” of Perincek’s statements. “His particularly pernicious speech and its consequences have been played down throughout the judgment… Such statements, as we understand them, amount to a distortion of historical facts going well beyond mere denial of the Armenian Genocide in terms of its legal characterization.”

They added that Perincek’s intent was to insult an entire people. His statements were directed at Armenians as a group, and he was attempting to justify the actions of the Ottoman Empire, characterizing the genocidal policies as acts of self-defense. They also noted that Perincek’s statements contained “racist overtones denigrating the memory of the victims, as the Federal Court rightly found.”

Furthermore, the dissenting judges argued that Perincek’s statements could be said to have amounted to “a call, if not for hatred and violence, at least for intolerance towards Armenians.”

“Far from being historical, legal, and political in nature, the applicant’s speech depicted the Armenians as the aggressors of the Turkish people and described as an ‘international lie’ the use of the term ‘genocide’ to refer to the atrocities committed against the Armenians,” continued the statement.

 

The Issue of Geography

The court’s ruling claimed that unlike in cases of Holocaust denial, where statements could be seen as intending to incite racial hatred, “it did not consider that the same could be done in this case.” The court’s argument was based on geographical location; whereas the Holocaust denial cases had occurred in countries where the Holocaust had taken place, geographically Switzerland was not connected to the Armenian Genocide.

“The Court considered that Holocaust denial was especially dangerous in States which had experienced the Nazi horrors and which could be regarded as having a special moral responsibility to distance themselves from the mass atrocities that they had perpetrated or abetted, by, among other things, outlawing their denial. By contrast, it had not been argued that there was a direct link between Switzerland and the events that took place in the Ottoman Empire in 1915 and the following years,” read the ECHR statement, further noting that there was no evidence of “serious friction” between Turks and Armenians in Switzerland at the time of Perincek’s statement.

Moreover, the court argued that the Swiss court’s verdict could not be justified by conditions in Turkey, where “[the] Armenian minority was alleged to suffer from hostility and discrimination.”

In their statement, the dissenting judges held that in their view the “methodology” of the majority was “problematic in places.”

“Minimizing the significance of the applicant’s statements by seeking to limit their geographical reach amounts to seriously watering down the universal, erga omnes [toward all] scope of human rights—their quintessential defining factor today. As has been forcefully asserted by the Institute of International Law, the obligation for States to ensure the observance of human rights is an erga omnes obligation,” argued the dissenting judges.

Minimizing the significance of the applicant’s statements by seeking to limit their geographical reach amounts to seriously watering down the universal, erga omnes [toward all] scope of human rights—their quintessential defining factor today.

The dissenting judges further noted that based on the majority ruling, the denial of genocides committed on other continents—such as the Rwandan Genocide and the genocide perpetrated by the Khmer Rouge in Cambodia—would be protected under freedom of expression.

“We do not believe that such a vision reflects the universal values enshrined in the Convention,” wrote the dissenting judges.

Commenting on the court’s argument regarding the lack of tension between Turks and Armenians in Switzerland at the time of Perincek’s statement, the president of the European Armenian Federation for Justice and Democracy (EAFJD), Kasbar Karampetian, stated that the wording of the judgment suggests that the ECHR could pass a different ruling if the context were different.

“The Court still leaves open other situations where one could punish an individual for denying the Armenian Genocide in certain circumstances.  The Court noted that it was wrong to convict Perincek partly because there were no heightened tensions or special historical overtones in Switzerland.  So one could conclude from the opinion that if there are situations where there are heightened tensions between Armenians and Turks because of the denial, then denial of the Armenian Genocide maybe punishable,” said Karampetian.

Meanwhile, Robertson and Clooney held, “The European Court ruled that the applicant’s freedom of speech should not have been restrained because it was not likely to incite violence or racial hatred. Thus Perincek  should not have been prosecuted by the Swiss authority because his rant, in the Turkish language, would have had no impact at all on social harmony and race relations in Switzerland.”

 

Perincek’s Statements Denying the Genocide

Born in Ankara in 1942, Perincek is the chairman of the Turkish Workers’ Party. During the Grand Chamber hearing in January, Robertson argued that Perincek had traveled to Switzerland with the purpose of being convicted, something he had tried to do in France, Germany, and Greece.

Perincek made three statements that brought about the Swiss court case. The first was made during a press conference in Lausanne, in May 2005. Perincek had stated, “The allegations of the ‘Armenian Genocide’ are an international lie. Can an international lie exist? Yes, once Hitler was the master of such lies; now it’s the imperialists of the USA and EU! … For their campaign of lies about the ‘Armenian Genocide,’ the USA and EU have manipulated people with Turkish identity cards. In particular, certain historians have been bought and journalists hired by the American and German secret services to be transported from one conference to another. … Don’t believe the Hitler-style lies such as that of the ‘Armenian Genocide.’ Seek the truth like Galileo, and stand up for it.”

Perincek’s second statement came in July 2005, when he said during a conference: “The Kurdish problem and the Armenian problem were therefore, above all, not a problem and, above all, did not even exist…” Following the conference, Perincek distributed pamphlets denying the Armenian Genocide.

In September 2005, Perincek made a third statement:  “…even Lenin, Stalin, and other leaders of the Soviet revolution wrote about the Armenian question. They said in their reports that no genocide of the Armenian people had been carried out by the Turkish authorities…But Turkey was on the side of those defending their homeland and the Armenians were on the side of the imperialist powers and their instruments…and we call on Bern, the Swiss National Council and all parties of Switzerland: Please take an interest in the truth and leave these prejudices behind… This is the truth; there was no genocide of the Armenians in 1915. It was a battle between peoples and we suffered many casualties…”

The Switzerland-Armenia Association filed a criminal complaint in July 2005, citing Perincek’s first statement. The investigation that ensued included Perincek’s other statements. In March 2007, the Lausanne District Police Court found Perincek guilty, and ordered him to pay fines.