Criminal conviction for denying the Armenian genocide
3-11-2015, 15:43  / ნანახია: 2837

Strasbourg Observers


Criminal conviction for denying the Armenian genocide in breach with freedom of expression


Brief comment


"The most important message of the Grand Chamber’s judgment is that the criminalisation of the denial of genocide or other crimes against humanity “as such” cannot be justified from the perspective of Article 10 of the European Convention. The Grand Chamber emphasizes that the criminal offence of denial or gross minimization of the Holocaust is compatible with Article 10 as it should “invariably be seen as connoting an antidemocratic ideology and anti-Semitism”. The Court argues that Switzerland with its criminalisation of the denial of any genocide, especially without the requirement that it be carried out in a manner likely to incite to violence or hatred, took a position that cannot be reconciled with the standards of the right to freedom of expression as guaranteed by Article 10 ECHR and other international treaties. In this respect the Court also refers to the General Comment nr. 34 of the United Nations Human Rights Committee on Article 19 UN Covenant on Civil and Political Rights, stating in para. 49 that “(l)aws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events”.


The Court also clarifies why Switzerland was not required under its international law obligations to criminalise genocide denial as such. In line with the Chamber judgment, the majority of the Grand Chamber also confirms that Article 17 (abuse clause) can only be applied on an exceptional basis and in extreme cases, where it is “immediately clear” that freedom of expression is employed for ends manifestly contrary to the values of the Convention. As the decisive issue whether Perinçek had effectively sought to stir up hatred or violence and was aiming at the destruction of the rights under de Convention was not “immediately clear” and overlapped with the question whether the interference with his right to freedom of expression was necessary in a democratic society, the Grand Chamber decided that the question whether Article 17 was applicable had to be joined with the examination of the merits of the case under Article 10 of the Convention. As the Court found that there has been a breach of Article 10 of the Convention, there were no grounds to apply Article 17 of the Convention (§§ 281-282) (on art. 17’s abuse clause, see Cannie en Voorhoof).The Grand Chamber’s judgment in the case of Perinçek v. Switzerland will certainly give cause to further analysis and controversial debate about the (desirable or necessary) limits of the right to freedom of expression in relation to genocide denial, memory laws and hate speech. With its judgment of 15 October 2015 the European Court of Human Rights has undoubtedly contributed to safeguarding the right to freedom of expression. Just one day after the closing of the Council of Europe conference questioning whether freedom of expression still is a precondition for democracy, the Grand Chamber of the Strasbourg made a robust statement that a democratic society must safeguard the right “to express opinions that diverge from those of the authorities or any sector of the population”, refusing to accept the necessity of criminal convictions for speech that does not manifestly incite to hatred, violence or discrimination and by refusing to apply the abuse clause of Article 17 of the Convention."


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