Nothing in this ruling permits to affirm that it is, in Europe, “the end” of the criminalization of genocide denial in general, or that of the Armenian genocide denial in particular. The Court acknowledges the diversity of national solutions on the matter and notes the lack of consensus among the High Contracting Parties. National positions in this large spectrum relate, after all, to the margin of appreciation and sovereign competence of each State. The Court does not determine whether the criminalization of the denial of genocides or other historical facts may in principle be justified – even though the Court, actually, does so regarding the denial of the Holocaust exclusively, in Europe. In any case, the Court’s assessment is case-specific and depends on each context. It does not have any absolute value.
***
On the final judgment of the Grand Chamber of the
European Court of Human Rights (ECHR) on Perincek vs Switzerland case
Panorama.am has spoken with Dr. Sévane Garibian - Legal Scholar, Professor at
the Universities of Geneva and Neuchâtel (Switzerland)
- Dr. Garibian,
what are the legal implications of the ECHR Grand chamber’s verdict on Perincek
v. Switzerland case in terms of criminalization of genocide denial in future?
Does the Court's ruling that Mr Perinçek’s rights under Article 10 were
violated mean that States cannot outlaw genocide denial?
- Nothing in this ruling permits to affirm that it is, in
Europe, “the end” of the criminalization of genocide denial in general, or that
of the Armenian genocide denial in particular. The Court acknowledges the
diversity of national solutions on the matter and notes the lack of consensus
among the High Contracting Parties. National positions in this large spectrum
relate, after all, to the margin of appreciation and sovereign competence of
each State. The Court does not determine whether the criminalization of the
denial of genocides or other historical facts may in principle be justified –
even though the Court, actually, does so regarding the denial of the Holocaust
exclusively, in Europe. In any case, the Court’s assessment is case-specific
and depends on each context. It does not have any absolute value.
It is important to
bear in mind, for the future, that this judgment confirms the importance and
the need of the evidence of incitement to racial hatred and discrimination
through the litigious statements, analyzed in their specific context. This
element is not new, but its assessment is, as we see in this case, quite
relative and subjective.
- What points in
the decision are favorable for the Armenian side and can be used for furthering
the recognition and condemnation of the Armenian Genocide?
- The Grand Chamber does not use the Chamber’s
problematic argument according to which there is no “general consensus” on the
legal qualification of genocide in the Armenian case. Therefore Turkey cannot
refer to such an argument legitimately in the future. The Court points out that
it has neither obligation nor authority 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. In any case, I
should add that such legal characterization was not even necessary, since the
Swiss law (article 261bis §4 of the Criminal Code) criminalizing denial, gross
trivialization or justification, refers to “genocide or other crimes against
humanity”.
Another
interesting point is that the judgment has been voted with a very short
majority, by ten votes to seven (there is also a partly concurring and partly
dissenting opinion by the German judge, as well as an additional dissenting
opinion by four judges). The joint dissenting opinion of seven judges includes
that of the president and vice-president of the European Court. All seven
dissenting judges, while confirming that the legal characterization of the
events of 1915 was not the question here, firmly acknowledge “the fact the
massacres and deportations suffered by the Armenian people constituted genocide
is self-evident. The Armenian genocide is a clearly established historical
fact. To deny it is to deny the obvious”.
Also, the Grand
Chamber recognizes that “the hostility of some ultranationalist circles in
Turkey towards the Armenians in that country could not be denied” (referring
notably to the Hrant Dink case). But it does not link this situation to the present
case. Finally, one may recall that the Court considers the protection of the
dignity of the victims (the ancestors) and the dignity and identity of
“present-day Armenians” (by Article 8 of the European Convention, on the right
to respect for private life) as being a “legitimate aim”. It is unfortunate,
though, that the Court does not also take into consideration the universal
aspect of the issues related to mass crimes and their denial. I also believe
that the judgment contains some questionable or problematic arguments and
assessments.
- What are the
setbacks of the judgment that you would highlight?
- The most problematic points are found in the
argumentation of the majority of the Grand Chamber related to the absence of
necessity to subject M. Perinçek to a criminal penalty. It is this “lack of
necessity” that led the Court to the conclusion that the applicant’s freedom of
expression was violated. I would underline three questionable points in
particular: 1. the appreciation of the nature of Dogu Perinçek’s statements; 2.
the evaluation of the racist motive in the light of the specific context
(itself being determined by debatable factors); 3. and the differentiation in
principle (automatic differentiation) with the Holocaust denial. The Court’s assessments
regarding these three points are also the ones being challenged and flatly
criticized in the dissenting opinions.
- In this case is
it correct to define this decision as either a victory or a failure for us?
-In my opinion the judgment is neither a great victory
nor a big failure. A nuanced approach is certainly more appropriate.
Interview by Nvard
Chalikyan
Source: Panorama.am
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