ECHR Article 10-1
Freedom of expression
Criminal conviction for rejecting legal characterisation of atrocities committed by Ottoman Empire against the Armenian people from 1915 as ‘genocide': violation
Facts – The applicant is a doctor of laws and the Chairman of the Turkish Workers’ Party. In 2005 he participated in various conferences in Switzerland during which he publicly denied that the Ottoman Empire had perpetrated the crime of genocide against the Armenian people in 1915 and the following years. In particular, he described the idea of an Armenian genocide as an ‘international lie’. The association Switzerland-Armenia filed a complaint against the applicant for the comments he had made. The applicant was sentenced, with a two-year suspension, to ninety day-fines of 100 Swiss francs (CHF), and fined CHF 3,000, for which thirty days’ imprisonment could be substituted, and was ordered to pay CHF 1,000 in damages to the complainant association.
Article 17: The Court accepted that some of the applicant’s comments were provocative. The applicant’s motives for committing the offence had been described as ‘nationalistic’ and ‘racist’ by the domestic courts. In speaking of the events in question, the applicant had referred in his conferences to the notion of ‘international lie’. However, ideas which offended, shocked or disturbed were also protected by Article 10. It was noteworthy that the applicant had never questioned the existence of the massacres and deportations perpetrated during the years in question and that his denial concerned only the legal characterisation of those events as ‘genocide’. The Court took the view that the rejection of the legal characterisation as ‘genocide’ of the 1915 events was not per se such as to incite hatred against the Armenian people. In any event, the applicant had never been prosecuted or convicted for seeking to justify genocide or for inciting hatred, which was a separate offence. Nor had he expressed contempt for the victims of the events in question. Therefore the Court did not need to apply Article 17 of the Convention.
Conclusion: Article 17 not applicable (unanimously).
Article 10: The impugned conviction unquestionably constituted an ‘interference’ with the applicant’s exercise of his right to freedom of expression. As to whether that interference was prescribed by law, the applicant’s conviction had been based on an accessible statutory provision. It might be questioned whether the term ‘genocide’, as used in the Swiss Criminal Code, was consonant with the precision required by Article 10 – 2 of the Convention. However, as the applicant was a doctor of laws and a well-informed political figure, and as the Swiss National Council had recognised the existence of the Armenian genocide in 2002, the criminal sanction was foreseeable for the applicant. As regards the legitimate aim, the impugned measure had sought to protect the rights of others, namely the honour of the relatives of victims of the atrocities perpetrated by the Ottoman Empire against the Armenian people from 1915 onwards.
Lastly, as to whether the impugned measure had been necessary in a democratic society, it was important to clarify at the outset that the Court was not called upon to address either the veracity of the massacres and deportations perpetrated against the Armenian people by the Ottoman Empire from 1915 onwards or the appropriateness of legally characterising those acts as ‘genocide’, within the meaning of the Swiss Criminal Code. Its task was only to examine, under Article 10 of the Convention, the decisions given by the competent domestic courts in the exercise of their discretionary power.
(a) Nature of the applicant’s speech and the domestic courts’ margin of appreciation – It was not in dispute that the issue whether the events of 1915 and thereafter should be characterised as ‘genocide’ was one of major interest for the public. The essence of the applicant’s statements and positions could be situated within a historical context. In addition, the applicant had also expressed his views as a politician on a question which affected relations between two States, Turkey and Armenia, a country whose people had been the victims of massacres and deportations. Concerning as it did the characterisation of a crime, that question also had a legal connotation. Accordingly, the applicant’s speech was historical, legal and political in nature. Having regard to the foregoing, and in particular the public interest of the applicant’s speech, the domestic authorities’ margin of appreciation was reduced.
(b) Method adopted by domestic courts to convict the applicant – As to the notion of ‘consensus’, only about twenty States (out of over 190 in the world) had officially recognised the Armenian genocide. Moreover ‘genocide’ was a well-defined legal notion. In any event, it was even doubtful that there could be a general consensus as to events such as those in 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. In that connection the present case could be clearly distinguished from cases concerning the negation of the crimes of the Holocaust. The method used by the domestic courts to secure the conviction was thus questionable.
(c) Whether there was a pressing social need – A study by the Swiss Comparative Law Institute adduced by the Swiss Government revealed that among the sixteen companies analysed, only two made it a criminal offence to negate genocide, without limiting its scope to Nazi crimes. None of the other States had apparently seen a ‘pressing social need’ for such legislation. Switzerland had failed to show how there was a stronger social need than in other countries to punish an individual for racial discrimination on the basis of statements challenging the legal characterisation as ‘genocide’ of acts perpetrated on the territory of the former Ottoman Empire in 1915 and the following years. Two developments since the publication of that study also had to be taken into account. Firstly, the Spanish Constitutional Court had found unconstitutional the offence of ‘negation’ of genocide. Secondly, the French Constitutional Council had declared unconstitutional a law which made it a criminal offence to deny the existence of the genocides recognised by the law. Even though those decisions did not strictly constitute binding precedent, the Court could not ignore them. It pointed out that France had expressly recognised the Armenian genocide in a law of 2001. It thus observed that the decision of the French Constitutional Council showed that there was in principle no contradiction between the official recognition of certain events as genocide and the conclusion that it would be unconstitutional to impose criminal sanctions on persons who questioned the official view. Other States which had recognised the Armenian genocide had not found it necessary to enact laws introducing criminal sanctions, being mindful that one of the main aims of freedom of expression was to protect minority points of view capable of fostering debate on questions of general interest that were not firmly established. Lastly, it was noteworthy that the present case represented the first conviction of an individual on that legal basis in the context of the Armenian question. Moreover, the applicant, together with eleven other Turkish nationals, had been acquitted by the District Court on charges of genocide denial, as no intent to discriminate had been found. In view of the foregoing, the Court doubted that the applicant’s conviction had been required by a ‘pressing social need’.
(d) Proportionality of measure to aim pursued – Even though the sanctions imposed on the applicant, including one that could be converted into a term of imprisonment, were not particularly harsh, they were nevertheless capable of having chilling effects.
In view of the foregoing and particularly in the light of the comparative law material, the Court took the view that the grounds given by the domestic authorities to justify the applicant’s conviction were not all pertinent and that, taken as a whole, they proved insufficient. The domestic authorities had not shown, in particular, that the applicant’s conviction met a ‘pressing social need’ or that it was necessary in a democratic society for the protection of the honour and feelings of the descendants of the victims of the atrocities which dated back to 1915 and the following years. The domestic authorities had thus overstepped the margin of appreciation afforded to them in the present case, which had arisen in the context of a debate of undeniable public interest.
Conclusion: violation (five votes to two).
European Convention on Human Rights 10-1
27510/08 - Legal Summary,  ECHR 1366