The European Court of Human Rights held a Grand Chamber hearing on January 28 in the case of Dogu Perincek v Switzerland. The case concerns the criminal conviction of Perincek, a Turkish ultranationalist politician who publicly challenged the existence of the Armenian Genocide in Switzerland. A final ruling by the Grand Chamber will be made at a later stage and communicated separately.
Perincek, the leader of Turkey’s Workers’ Party while on a lecture tour in Switzerland in 2005 made several public statements where he denied the reality of the 1915 Armenian Genocide, calling it an ‘international lie.’ He was convicted by a Swiss court for those statements in 2007. Switzerland has anti-racism laws that legislate against denying, belittling or justifying genocide. That court decision said that the facts of the Genocide were ‘widely accepted as common knowledge’ and that Perincek’s denial of these facts had racist motives.
Perincek appealed the Swiss court’s decision to the European Court claiming that the Swiss Criminal Code breached his freedom of expression. A majority of five out of seven ECHR judges ruled in favor of the Turkish politician on December 17, 2013 stating that Perincek had exercised his ‘freedom of speech.’ The European Court went further and 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 characterization as “genocide” of acts perpetrated on the territory of the former Ottoman Empire in 1915 and the following years.
The ruling was criticized and highlighted an ingrained double standard because the European Court considered the denial of the Holocaust a crime, but denial of the Armenian Genocide was considered to be an infringement on free speech.
“Intolerance and hatred against a defenseless minority”
Two ECHR judges had dissenting opinions stating among other things that the defendant (Perincek) openly characterized the Armenian Genocide as an ‘international lie,’ accused the Armenian people of aggression towards the Turkish state and stated that he supported Talaat Pasha’s ideas. “His statements provoke a grave intolerance and hatred against a defenseless minority…Expressions such as ‘international lie,’ ‘historic lie,’ ‘imperialist lie’ obviously go beyond the acceptable boundaries of freedom [of] expression, because these expressions declare the victims to be ‘liars’ and suggest an international conspiracy against Turkey or Turks. Besides, D. Perinçek’s identification with a major genocide perpetrator, who in 1919 was sentenced to death for crimes against humanity by an Ottoman court makes the situation even more repugnant,” the dissenting judges noted.
Following the initial verdict, a number of Armenian organizations in Europe, including the Coordination Council of Armenian Organizations of France asked Switzerland to appeal the verdict. The Human Rights Association of Turkey also issued a letter to Simonetta Sommaruga, the Swiss Minister of Justice expressing the organization’s disappointment with the decision handed down by the European Court of Human Rights regarding the Perinçek v. Switzerland case and asking Switzerland to appeal the decision. In that letter, it states: “…the ECHR decision establishes that the Armenian genocide is somehow disputable, arguing that the denial of events which are not qualified as a genocide cannot provoke racist hatred.However this is not what Doğu Perinçek and the Talaat Pasha Committee (named after Talaat, the main author of the Armenian genocide), of which he is one of the leaders have been doing since the Committee’s inception. They deny all the sufferings and horrible massacres—genocide or not—and thus openly insult the victims and their descendants. They deny all the sufferings of the Armenian people under Turkish rule and declare that what had happened to them is an ‘imperialist lie.’ They deny the extermination of the Armenian people and their civilization, playing a vital role in the Ottoman Empire not only demographically, but economically, culturally. In other words, it is not a question of naming what happened to Armenians, it is a question of denying their very existence, their historical heritage and the enormous contribution they made to the country they were an integral part of.”
On February 14, 2014, more than thirty genocide scholars and historians from around the world also addressed an open letter to the Head of the Swiss Federal Department of Justice and Police, Simonetta Sommaruga asking Switzerland to appeal the case.
Switzerland Appeals
On March 7, 2014 Switzerland filed an appeal that led to the Grand Chamber hearing on January 28. The Swiss government challenged the European Courts on three grounds: 1) ECHR had never before dealt with the juridical qualification of genocide and the scope of freedom of expression; 2) The undue restriction of the ‘margin of appreciation’ available to Switzerland under ECHR’s jurisprudence; 3) The establishment of ‘artificial distinctions’ — in the absence of an international verdict, ECHR should have considered the Turkish Court’s 1919 guilty verdicts against the masterminds of the Armenian Genocide as evidence related to World Court’s jurisprudence.
Following the Swiss appeal, Turkey intervened by submitting their evidence which questioned the veracity of the Armenian Genocide. While Turkey intervened in support of Perincek, its own courts — the Istanbul Penal Court — had convicted him of being a leading member of the terrorist organization Ergenekon. On June 3, a day after the Perincek v Switzerland case was referred by the Grand Chamber Panel to the ECHR, the Turkish Foreign Ministry issued the following statement:
“While the ECHR’s judgment of 17 December 2013 endorsed the principle of ‘the protection of the freedom of expression which is the fundamental element of societies committed to freedom, democracy, and the rule of law,’ Switzerland has brought the matter before the Grand Chamber on entirely political motives.We are confident that the Grand Chamber will be guided by exclusively legal considerations when hearing the case. One cannot imagine an outcome different than the Chamber judgment of 17 December 2013 considering the jurisprudence of the ECHR and the fundamental principles of law. Thus, once again, this will be an adequate response against initiatives attempting to politicize history and law, and will strongly confirm that freedom of expression, which is the building block of democratic societies, is under protection.”
It is interesting to note that a Turkish court lifted a travel ban on Perincek a week before the January 28 ECHR hearing. In a statement, the ultranationalist Workers’ Party said, “The travel ban on our chairman imposed due to the Ergenekon case has been lifted unanimously by the court upon our appeal. Now, the [next step] is [for] the historical case in Strasbourg to finalize the lie of Armenian genocide.”
Armenia Decides to Engage as Third Party
On July 15, 2014, Armenia’s Prosecutor General Gevorg Kostanyan announced that Armenia would be submitting a formal request to the ECHR by August 26 of that year to engage as a third party in the case. At the Grand Chamber hearing, Armenia took part with a legal team that included Geoffrey Robertson QC, a preeminent international lawyer and author, who has argued many landmark human rights cases and is the author of “An Inconvenient Genocide: Who Now Remembers the Armenians?” international lawyer Amal Clooney, Armenia’s Prosecutor General Gevorg Kostanyan and another government representative Emil Babayan.
Coalition of Armenian and Turkish NGOs
Payam Akhavan
Similarly, a coalition of Armenian and Turkish NGOs also intervened in the Perincek case. Heading up that coalition is Payam Akhavan, a leading international law expert, who, in an interview with CivilNet said: “We thought that the composition of the coalition itself would be a powerful message to the Court that this was not an “Armenian” issue; it was a human rights issue. Perincek was not interested in academic debates on international law, and whether the term “genocide” applies to the events of 1915 or not. He is an ultranationalist politician whose platform is incitement to hatred against Armenians, based on paranoid conspiracy theories and historical revisionism.”
Akhavan went on to say that the case is not about the historical truth as such. “From the perspective of human rights law, freedom of expression under Article 10 of the European Convention on Human Rights, is subjected to certain limitations. One of those is when speech amounts to incitement to discrimination and hatred. So debates about the historical truth or legal classification of atrocities as genocide or some other label are not the real issue. The fundamental issue is whether Perincek’s statements when considered in their proper context constitute incitement to discrimination and hatred,” said Akhavan.
The Grand Chamber hearing lasted two-and-a-half-hours. The Swiss side argued that the case was not a reflection on the specific definition of Genocide but rather was intended to protect public peace. Lawyers for Turkey argued that the case is about freedom of speech and that Perincek’s statements did not contain any racist element and that he simply opposed the events as genocide.
Amal Clooney and Geoffrey Robertson
Both Geoffrey Robertson and Amal Clooney offered historical accounts of what took place a century ago. Clooney criticized the court’s earlier ruling of casting doubt on the veracity of the Armenian Genocide and said that for the Armenian people, the stakes could not be higher. She also made reference to Turkey’s dismal record on human rights and freedom of speech. “Armenia is not here to argue against freedom of expression any more than Turkey is here to defend it. This court knows very well how disgraceful Turkey’s record on freedom of expression is. You have found against the Turkish government in 224 separate cases on freedom of expression grounds.” She concluded her speech by saying: “Armenia has every interest in ensuring that its own citizens do not get caught in a net that criminalizes speech too broadly. As the family of Hrant Dink know about all too well.”
Geoffrey Robertson said that Dogu Perincek was an incurable denier, traveling from one country to another in Europe and that his purpose in going to Switzerland was to be convicted. “He went to Germany, France, at the end of the day he tried to go Greece to expostulate but was turned away. He is genocide denier forum shopper. He is an incurable genocide denier, a criminal and a vexatious litigant,” Robertson said.
On this centenary year, it remains to be seen how the European Court of Human Rights will rule.
