European Court Issues Contentious Ruling On Perincek Case

European Court Issues Contentious Ruling On Perincek Case –

Armenia’s Prosecutor General Gevork Kostanyan and Geoffrey Robertson at Thursday’s ECHR hearing

STRASBOURG, France (Asbarez) -The European Court of Human Rights on Thursday issued a contentious ruling in the case of Perincek vs. Switzerland, which concerned the criminal conviction by Switzerland of Turkish politician Dogu Perincek for publically challenging the existence of the Armenian Genocide.

While the ruling upholds Perincek’s right to freedom of speech in this narrow case, the court also upholds the “right to dignity” of Armenian people and maintains legality of laws criminalizing genocide denial.

Armenia was represented at Thursday’s hearing by human rights attorney Geoffrey Robertson and Armenia’s Prosecutor General Gevork Kostanyan, with leaders of the European Armenian Federation for Justice and Democracy present at the court.

The ruling does correct several errors in the original judgment, by specifically stressing 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.”

This provision strikes down the Chamber’s “doubt[…] that there could be a general consensus as to events such as those at issue, given that historical research was by definition open to discussion and a matter of debate, without necessarily giving rise to final conclusions or to the assertion of objective and absolute truths.”

The Grand Chamber decision concerning the crucial question of the distinction between Holocaust denial and denial of the genocide of the Armenian people in 1915, is contentious. So is its assertion that in his statements, Perincek “had not expressed contempt or hatred for the victims of the events of 1915 and the following years.”

“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 they were 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, than denial of the Armenian Genocide maybe punishable,” said Kasbar Karapetian, President of the EAFJD.

“This is a mixed decision, because fundamental principles were not followed. This confused court has created a very problematic decision, which will encourage hate speech not only against Armenians but all minorities,” said Kate Nahapetian, the Governmental Affairs Director of the Armenian National Committee of America.

Seven Jurists issue dissent to ECHR decision

In a document issued after the ruling, seven of the 17 judges dissented from the ruling, among them the court’s president Judge Dean Spielmann. This underscored the contentious nature of the ECHR ruling.

“That the massacres and deportations suffered by the Armenian people constituted genocide is self-evident. The Armenian genocide is a clearly established historical fact,” said the jurists in their dissent.

“To deny it is to deny the obvious. But that is not the question here. The case is not about the historical truth, or the legal characterization of the events of 1915. The real issue at stake here is whether it is possible for a State, without overstepping its margin of appreciation, to make it a criminal offence to insult the memory of a people that has suffered genocide,” added the dissent.

“In our view, this is indeed possible… The statements in question contain an intent (animus) to insult a whole people. They are a gross misrepresentation, being directed at Armenians as a group, attempting to justify the actions of the Ottoman authorities by portraying them almost as acts of self-defence, and containing racist overtones denigrating the memory of the victims, as the Federal Court rightly found,” the dissenting judges said.

Switzerland Says Perincek Ruling Violates ECHR

The Swiss Federal Department of Justice issued a terse rebuke to the ECHR ruling, calling a violation of the court. Below is the text of the statement as published on the ministry’s official website.

By convicting Turkish citizen Doğu Perinçek, Switzerland violated his right to freedom of [removed]Art. 10 ECHR). So ruled the Grand Chamber of the European Court of Human Rights (ECtHR) with a majority of 10:7 in its judgment announced today in Strasbourg. The judgment is final and thus upholds the ECtHR Chamber judgment of 17 December 2013 in the same case. The Federal Office of Justice (FOJ), which represented the Swiss government before the ECtHR, has acknowledged with interest the judgment of the Grand Chamber.

On 9 March 2007, Turkish national Doğu Perinçek was sentenced in Canton Vaud to both a financial penalty and a criminal fine on the basis of a criminal anti-racism provision in the Swiss Criminal Code (Art. 261bis para. 4 CC) for denying the genocide of the Armenian people. The Cantonal Court of Canton Vaud and the Federal Supreme Court both rejected appeals against the judgment. In its Chamber judgment of 17 December 2013, the European Court of Human Rights determined that the Swiss courts’ rulings violated the appellant’s right to freedom of expression. On 17 March 2014, Switzerland requested that the case be reviewed by the Grand Chamber. The review was to clarify the degree of discretion available to the Swiss prosecuting authorities in applying criminal law to combat racism.

The judgment of the Grand Chamber confirms the great importance that the ECtHR attaches to freedom of expression. It is too soon to predict the legal consequences of this outcome. A thorough analysis of the comprehensive judgment will be required before it becomes clear whether its implementation will require the more restrained application of anti-racism law, or legislative reform.

In addition, the Grand Chamber decided by 12 votes to five that its determination of a breach of Art. 10 ECHR constituted sufficient compensation for the non-pecuniary loss that Perinçek had claimed. It unanimously rejected all other compensation claims.

Within six months at most, Switzerland will report on how it intends to proceed to the Committee of Ministers of the European Council, which is responsible for monitoring the execution by Member States of final judgments. The report must set out the action that Switzerland has taken to eliminate the consequences of the violation determined in this individual case, as well as to prevent such violations in the future. If Switzerland is not yet able to report fully on the execution of the judgment, it must at least present a binding schedule indicating when the intended implementation measures will be undertaken.


Armenia’s Prosecutor General’s Office Issues Statement

Armenia’s Prosecutor General’s office issued a statement, in which it expressed satisfaction with the ruling pointing out:

 1. It overrules the comments by several judges in the lower court who thought that the mass murder of the Armenians in 1915 might not amount to genocide. The Court held that they had no jurisdiction to consider findings on this issue. So the lower court judgment was wrong and can no longer have any weight or influence.
2. The Court declared that Armenians have “the right to respect for their and their ancestors’ dignity including their right to respect for their identity constructed around the understanding that their community has suffered genocide” (para 227). 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.
3. The reaffirmation of free speech principles by the court means that the laws against “insulting Turkishness” in the Turkish criminal code (Article 301) cannot be used as they were against Hrant Dink and other Turkish and Armenian citizens who probe Turkish guilt for the Genocide. Turkish infringements of free speech must now end.

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