CASE OF PERİNÇEK v. SWITZERLAND

Peticija Nr. 27510/08 · Priimta 2013-12-17 · ECLI:CE:ECHR:2013:1217JUD002751008 · Kalbos: EN · EN · FR · SV

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Peticija Nr.
27510/08
Priimta
2013-12-17
Valstybė atsakovė
CHE
Išvada
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
Konvencijos straipsniai
10, 10-1, 10-2, 35, 41
Originalas
HUDOC ↗
PirmininkasGuido RaimondiTeisėjasPeer LorenzenTeisėjasDragoljub PopovićTeisėjasAndrás SajóTeisėjasNebojša VučinićTeisėjasPaulo Pinto de AlbuquerqueTeisėjasHelen KellerKanclerisStanley Naismith
Santrauka
Rengiama…

SECOND SECTION

CASE OF PERİNÇEK v. SWITZERLAND

(Application no. 27510/08)

JUDGMENT

STRASBOURG

17 December 2013

THIS CASE WAS REFERRED TO THE GRAND CHAMBER

WHICH DELIVERED JUDGMENT IN THE CASE ON

15/10/2015

This judgment may be subject to editorial revision.

In the case of Perinçek v. Switzerland,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Guido Raimondi, President,

Peer Lorenzen,

Dragoljub Popović,

András Sajó,

Nebojša Vučinić,

Paulo Pinto de Albuquerque,

Helen Keller, judges,

and Stanley Naismith, Section Registrar,

Having deliberated in private on 12 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

“3.1 Article 261 bis § 4 of the Criminal Code punishes conduct on the part of anyone who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or any other means, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity. An initial literal and grammatical approach shows that the wording of the law (through the use of the indefinite article ‘a genocide’ [‘un génocide’]) makes no explicit reference to any specific historical event. The law therefore does not preclude punishment of denial of genocides other than that perpetrated by the Nazi regime; nor does it explicitly classify denial of the Armenian genocide as an act of racial discrimination under criminal law.

3.2 Article 261 bis § 4 of the Criminal Code was enacted when Switzerland acceded to the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (RS [Recueil systématique – Compendium of Federal Law] 0.104). The wording initially proposed in the Bill tabled by the Federal Council did not refer specifically to genocide denial (see FF [Feuille fédérale] 1992 III 326). The offence of revisionism, or Holocaust denial, was intended to be included within the constituent element of dishonouring the memory of a deceased person, appearing in the fourth paragraph of the draft Article 261 bis of the Criminal Code (Memorandum by the Federal Council of 2 March 1992 concerning Switzerland’s accession to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the corresponding revision of criminal law; FF 1992 III 265 et seq., specifically 308 et seq.). The memorandum does not contain any specific reference to the events of 1915.

During the parliamentary debates, the National Council’s Legal Affairs Committee proposed inserting the following wording in Article 261 bis § 4 of the Criminal Code: ‘... or who on the same grounds grossly trivialises or seeks to excuse genocide or other crimes against humanity’ .... The Committee’s French-language rapporteur, National Councillor Comby, explained that there was a discrepancy between the German and French versions, pointing out that the wording was obviously referring to any genocide and not only the Holocaust (BO/CN [Official Gazette/National Council] 1992 II 2675 et seq.). The National Council nevertheless adopted the Committee’s proposal as it stood (BO/CN 1992 II 2676). Before the Council of States, the proposal by the latter’s Legal Affairs Committee to maintain the wording of Article 261 bis § 4 of the Criminal Code approved by the National Council was set against a proposal by Mr Küchler, which did not, however, call into question the phrase ‘or who on the same grounds denies, grossly trivialises or seeks to justify genocide or other crimes against humanity’ (BO/CE [Official Gazette/Council of States] 1993 96; as to the scope of this proposal, see ATF [Judgments of the Swiss Federal Court] 123 IV 202, point 3c, p. 208, and Poncet, ibid.). That proposal was adopted without any more detailed reference being made to denial of the Armenian genocide during the debate. During the elimination of divergences, the National Council’s Legal Affairs Committee proposed, through Mr Comby, that the amendments inserted by the Council of States be adopted, with the exception of the fourth paragraph, where the Committee proposed the wording ‘a genocide’, by way of reference to any that might occur. The French-language rapporteur observed that some people had mentioned massacres of Kurds or other populations, for example Armenians, and that all these genocides should be covered (BO/CN 1993 I 1075 et seq.). Further brief comments were made in relation to the definition of genocide and how a Turkish citizen might refer to the Armenian tragedy, and it was also observed that the Committee did not intend the provision to apply to one particular genocide alone but to all genocides, for example in Bosnia and Herzegovina (BO/CN 1993 I 1077; statement by Ms Grendelmeier). The National Council ultimately adopted the following wording of paragraph 4: ‘... or any other means, violates the human dignity of a person or group of persons on the grounds of their race, ethnic origin or religion, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide...’ (BO/CN 1993 I 1080). In the subsequent parliamentary proceedings, the Council of States maintained its position, adopting the wording ‘a genocide’ (‘un génocide’) as a simple editorial amendment in the French version, and the National Council eventually endorsed the Council of States’ decision, without any further reference being made to denial of the Armenian genocide (BO/CN 1993 I 1300, 1451; BO/CE 1993 452, 579).

It is therefore clear from the above-mentioned parliamentary proceedings that Article 261 bis § 4 of the Criminal Code does not apply exclusively to denial of Nazi crimes but also to other genocides.

...

3.4 However, these parliamentary proceedings cannot be interpreted as meaning that the criminal-law provision in question applies to certain specific genocides which the legislature had in mind at the time of enacting it, as is suggested by the judgment appealed against.

3.4.1 The desire to combat negationist and revisionist opinions in relation to the Holocaust was, admittedly, a central factor in the drafting of Article 261 bis § 4 of the Criminal Code. In its case-law, however, the Federal Court has held that Holocaust denial objectively constitutes the factual element of the offence provided for in Article 261 bis § 4 of the Criminal Code since it concerns a historical fact that is generally acknowledged as established (ATF 129 IV 95, point 3.4.4, pp. 104 et seq.), although the judgment in question makes no reference to the historical intention of the legislature. Similarly, many authors have viewed the Holocaust as a matter of common knowledge for the criminal courts (Vest, Delikte gegen den öffentlichen Frieden, note 93, p. 157), as an indisputable historical fact (Rom, op. cit., p. 140), or as a classification (‘genocide’) that is beyond doubt (Niggli, Discrimination raciale, note 972, p. 259, who simply notes that this genocide was what prompted the introduction of the provision in question; to similar effect, see Guyaz, op. cit., p. 305). Only a few voices have referred to the intention of the legislature to recognise it as a historical fact (see, for example, Ulrich Weder, Schweizerisches Strafgesetzbuch, Kommentar (ed. Andreas Donatsch), Zürich 2006, Art. 261 bis § 4, p. 327; Chaix/Bertossa, op. cit., p. 184).

3.4.2 The process of ascertaining what genocides the legislature had in mind when formulating the provision is, moreover, thwarted by a literal interpretation (see point 3.1 above), which clearly shows the legislature’s intention to favour an open-ended wording of the law in this regard, as opposed to the technique of ‘memorial’ laws such as those passed in France (Law no. 90-615 of 13 July 1990, known as the ‘Gayssot Act’; Law no. 2001-434 of 21 May 2001 on recognition of trafficking and slavery as a crime against humanity, known as the ‘Taubira Act’; Law no. 2001-70 of 29 January 2001 on recognition of the 1915 Armenian genocide). The fact that Holocaust denial constitutes a criminal offence under Article 261 bis § 4 of the Criminal Code therefore stems less from the legislature’s specific intention to outlaw negationism and revisionism when it formulated this rule of criminal law than from the observation that there is a very general consensus on this matter, to which the legislature undoubtedly had regard. Nor is there, accordingly, any reason to determine whether the legislature was guided by any such intention regarding the Armenian genocide (contrast Niggli, Rassendiskriminierung, 2nd ed., Zürich 2007, note 1445 et seq., pp. 447 et seq.). Indeed, it should be noted in this connection that while certain aspects of the wording prompted fierce discussion among the members of parliament, the categorisation of the events of 1915 did not give rise to any debate in this context, and was ultimately mentioned by only two speakers in justifying the adoption of a French version of Article 261 bis § 4 of the Criminal Code that did not allow an excessively restrictive interpretation of the text, which did not follow from the German version.

3.4.3 Legal writers and the courts have, moreover, inferred from the well-known, undeniable or indisputable character of the Holocaust that proof of it is no longer required in criminal proceedings (Vest, ibid.; Schleiminger, op. cit., Article 261 bis § 4 of the Criminal Code, note 60). Hence there is no need for the courts to have recourse to the work of historians on this matter (Chaix/Bertossa, ibid.; unreported judgment 6S.698/2001, point 2.1). As a further consequence, the basis thus determined for the criminalisation of Holocaust denial dictates the method which the courts must adopt in considering the denial of other genocides. The first question arising is therefore whether there is a comparable consensus regarding the events denied by the appellant.

4.1 A factual finding of this nature is binding on the Federal Court ...

4.2 As regards the decisive factual issue, the Police Court not only based its opinion on the existence of political declarations of recognition, but it also pointed out that the opinion of the authorities issuing such declarations had been formed on the basis of expert opinion (for example, a panel of approximately one hundred historians in the case of the French National Assembly when it passed the Law of 29 January 2001) or reports described as cogently argued and substantiated (European Parliament). Thus, as well as relying on the existence of political recognition, this line of argument notes the existence in practice of a broad consensus within the community, which is reflected in the political declarations and is itself based on a wide academic consensus as to the classification of the events of 1915 as genocide. It may also be noted, in the same vein, that during the debate leading to the official recognition of the Armenian genocide by the National Council, reference was made to the international research published under the title Der Völkermord an den Armeniern und die Shoah (BO/CN 2003 2017; statement by Mr Lang). Lastly, the Armenian genocide is portrayed as one of the ‘classic’ examples in general literature on international criminal law, or on genocide research (see Marcel Alexander Niggli, Rassendiskriminierung, note 1418 et seq., p. 440, and the numerous references cited therein; see also note 1441, p. 446, and references).

4.3 To the extent that the appellant’s submissions seek to deny the existence of a genocide or the legal characterisation of the events of 1915 as genocide – in particular by pointing to the lack of a judgment from an international court or specialist commission, or the lack of irrefutable evidence proving that the facts correspond to the objective and subjective requirements laid down in Article 264 of the Criminal Code or in the 1948 UN Convention, and by arguing that to date, there have been only three internationally recognised genocides – they are irrelevant to the determination of the case, seeing that it is necessary in the first place to establish whether there is enough of a general consensus, especially among historians, to exclude the underlying historical debate as to the classification of the events of 1915 as genocide from the criminal proceedings concerning the application of Article 261 bis § 4 of the Criminal Code. The same applies in so far as the appellant is accusing the Cantonal Court of having acted arbitrarily by not examining the pleas of nullity raised in the cantonal appeal in relation to the same facts and the investigative measures he had sought. It is therefore unnecessary to examine his submissions except to the extent that they relate specifically to the establishment of such a consensus.

4.4 The appellant observes that he has sought further investigative measures to ascertain the current state of research and the current position of historians worldwide on the Armenian question. His submissions also appear at times to suggest that he believes there to be no unanimity or consensus among either States or historians as to the classification of the events of 1915 as genocide. However, his arguments are limited to setting his own opinion against that of the cantonal authority. In particular, he does not cite any specific evidence showing that the consensus found by the Police Court does not exist, let alone that that court’s finding is arbitrary.

Admittedly, the appellant does mention that a number of States have refused to recognise the existence of an Armenian genocide. It should be pointed out in this connection, however, that even the UN’s Resolution 61/L.53 condemning Holocaust denial, adopted in January 2007, received only 103 votes from among the 192 member States. The mere observation that certain States refuse to declare in the international arena that they condemn Holocaust denial is manifestly insufficient to cast doubt on the existence of a very general consensus that the acts in question amount to genocide. Consensus does not mean unanimity. The choice of certain States to refrain from publicly condemning the existence of a genocide or from voting for a resolution condemning the denial of a genocide may be dictated by political considerations that are not directly linked to those States’ actual evaluation of the way in which historical events should be categorised, and in particular cannot cast doubt on the existence of a consensus on this matter, especially within the academic community.

4.5 The appellant also argues that it would be contradictory for Switzerland to acknowledge the existence of the Armenian genocide while supporting the establishment of a panel of historians in the context of its relations with Turkey. This, in his submission, shows that the existence of genocide is not established.

However, it cannot be inferred either from the Federal Council’s repeated refusal to acknowledge the existence of an Armenian genocide by means of an official declaration or from the approach chosen – namely recommending to the Turkish authorities that an international panel of experts be set up – that the conclusion that there is a general consensus as to the characterisation of the events in question as genocide is arbitrary. In accordance with the clearly expressed wish of the Federal Council, its approach is guided by the concern to prompt Turkey to engage in collective remembrance of its past (BO/CN 2001 168: response by Federal Councillor Deiss to the non-binding motion by Mr Zisyadis; BO/CN 2003 2021 et seq.: response by Federal Councillor Calmy-Rey to the non-binding motion by Mr Vaudroz on recognition of the 1915 Armenian genocide). This attitude of openness to dialogue cannot be construed as denial of the existence of a genocide and there is nothing to suggest that the support expressed by the Federal Council in 2001 for the setting up of an international commission of inquiry did not stem from the same approach. It cannot be inferred in general that there is sufficient doubt within the community, particularly among academics, as to the classification of the events of 1915 as genocide to render the finding of such a consensus arbitrary.

4.6 That being so, the appellant has not shown how the Police Court acted arbitrarily in finding that there was a general consensus, particularly among academics, as to the classification of the events of 1915 as genocide. It follows that the cantonal authorities were correct in refusing to allow the appellant’s attempt to open a historical and legal debate on this issue.

5.1 With regard to intent, the Criminal Court found that [the applicant], a doctor of laws, politician and self-styled writer and historian, had acted in full knowledge of the consequences, stating that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place. These findings as to the appellant’s internal volition to deny a genocide relate to matters of fact (see ATF 110 IV 22, point 2, 77, point 1c, 109 IV 47, point 1, 104 IV 36, point 1 and citations), with the result that the Federal Court is bound by them (section 105(1) of the Federal Court Act). Moreover, the appellant has not submitted any complaints on that issue. He has not sought to demonstrate that these findings of fact are arbitrary or the result of a violation of his rights under the Constitution or the Convention, so there is no need to consider this question (section 106(2) of the Federal Court Act). It is unclear in any event how the cantonal authorities, which inferred the appellant’s intention from external considerations (cf. ATF 130 IV 58, point 8.4, p. 62), could have disregarded the very concept of intention under federal law in relation to this issue.

5.2 As to the appellant’s motives, the Criminal Court found that they appeared to be of a racist and nationalistic nature and did not contribute to the historical debate, noting in particular that he had described the Armenians as aggressors of the Turkish people and that he claimed to be a follower of [Talaat] Pasha, who together with his two brothers was historically the initiator, the instigator and the driving force of the Armenian genocide (Criminal Court judgment, point II, pp. 17 et seq.).

It has not been disputed in the instant case that the Armenian community constitutes a people, or at the very least an ethnic group (as to this concept, see Niggli, Rassendiskriminierung, 2nd ed., note 653, p. 208), which identifies itself in particular through its history, marked by the events of 1915. It follows that denial of the Armenian genocide – or the representation of the Armenian people as the aggressor, as put forward by the appellant – in itself constitutes a threat to the identity of the members of this community (Schleiminger, op. cit., Article 261 bis of the Criminal Code, note 65 and reference to Niggli). The Criminal Court, which found that there had been motives linked to racism, likewise ruled out that the approach pursued by the appellant pertained to historical debate. These findings of fact, about which the appellant raised no complaint (section 106(2) of the Federal Court Act), are binding on the Federal Court (section 105(1) of the Federal Court Act). They provide sufficient evidence of the existence of motives which, above and beyond nationalism, can only be viewed as racial, or ethnic, discrimination. It is consequently unnecessary in the present case to settle the debate among legal writers mentioned in point [5] above. In any event, the appellant has not raised any complaints concerning the application of federal law in relation to this matter.

However, it appears from the records of the questioning of the appellant by the Winterthur/Unterland public prosecutor’s office (23 July 2005) that in making public statements, particularly in Glattbrugg, the appellant was intending to ‘help the Swiss people and the National Council to rectify the error’ (that is to say, recognition of the Armenian genocide). Furthermore, he was aware that genocide denial was a criminal offence and stated that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place (Criminal Court judgment, point II, p. 17). It can be inferred from these aspects that the appellant was not unaware that by describing the Armenian genocide as an ‘international lie’ and by explicitly denying that the events of 1915 amounted to genocide, he was liable to face a criminal penalty in Switzerland. The appellant cannot therefore draw any favourable inferences from the lack of foreseeability of the law he cites. These considerations, moreover, support the conclusion that the appellant is in essence seeking, by means of provocation, to have his assertions confirmed by the Swiss judicial authorities, to the detriment of the members of the Armenian community, for whom this question plays a central role in their identity. The applicant’s conviction is thus intended to protect the human dignity of members of the Armenian community, who identify themselves through the memory of the 1915 genocide. Criminalisation of genocide denial is, lastly, a means of preventing genocides for the purposes of Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature in New York on 9 December 1948 and approved by the Federal Assembly on 9 March 2000 (RS 0.311.11).

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE

A. Relevant domestic law and practice

“Any person who publicly stirs up hatred or discrimination against a person or group of persons on the grounds of their race, ethnic origin or religion;

any person who publicly disseminates an ideology aimed at systematic denigration or defamation of the members of a race, ethnic group or religion;

any person who with the same objective organises, encourages or participates in propaganda campaigns;

any person who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or other means, or any person who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity;

any person who refuses to provide a service to a person or group of persons on the grounds of their race, ethnic origin or religion when that service is intended to be provided to the general public;

shall be punishable by a custodial sentence of up to three years or a fine.”

“Anyone who commits any of the following acts with the intent to destroy, in whole or in part, a national, racial, religious or ethnic group shall be punishable by life imprisonment or a custodial sentence of not less than ten years:

(a) killing members of the group or causing them serious bodily or mental harm;

(b) inflicting on members of the group living conditions calculated to bring about its physical destruction in whole or in part;

(c) ordering or taking measures intended to prevent births within the group;

(d) forcibly transferring or arranging for the transfer of children of the group to another group. A person who has acted abroad but is currently in Switzerland and cannot be extradited shall likewise be punishable. Article 6 bis § 2 shall be applicable.

The provisions concerning authorisation to prosecute as set out in Article 366 § 2 (b), sections 14 and 15 of the Liability Act of 14 March 1958 and sections 1 and 4 of the Political Guarantees Act of 26 March 1934 shall not be applicable to genocide.”

“The National Council recognises the Armenian genocide of 1915. It requests the Federal Council to take note thereof and to convey its position by the usual diplomatic channels.”

B. International law and practice

Article I

“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

Article II

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.” Article 3

“The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.” Article 5

“The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”

Article 6

“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

...

(c) ’Crimes against humanity’ – namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

Article 5: Crimes within the jurisdiction of the Court

“1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

Article 6: Genocide

“For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.” Article 7: Crimes against humanity

“1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

...”

“498. Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.”
“469. Having regard to its Statute, the Chamber believes that the offences under the Statute – genocide, crimes against humanity, and violations of article 3 common to the Geneva Conventions and of Additional Protocol II – have different elements and, moreover, are intended to protect different interests. ... Thus it is legitimate to charge these crimes in relation to the same set of facts. It may, additionally, depending on the case, be necessary to record a conviction for more than one of these offences in order to reflect what crimes an accused committed. If, for example, a general ordered that all prisoners of war belonging to a particular ethnic group should be killed, with the intent thereby to eliminate the group, this would be both genocide and a violation of common article 3, although not necessarily a crime against humanity. Convictions for genocide and violations of common article 3 would accurately reflect the accused general’s course of conduct.
“(8) The Question of Intent to Commit Genocide

‘(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group; [and]

(e) Forcibly transferring children of the group to another group’ – themselves include mental elements. ‘Killing’ must be intentional, as must ‘causing serious bodily or mental harm’. Mental elements are made explicit in paragraphs (c) and (d) of Article II by the words ‘deliberately’ and ‘intended’, quite apart from the implications of the words ‘inflicting’ and ‘imposing’; and forcible transfer too requires deliberate intentional acts. The acts, in the words of the ILC, are by their very nature conscious, intentional or volitional acts (Commentary on Article 17 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, ILC Report 1996, Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 44, para. 5).

‘the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.’ (IT-95-16-T, Judgment, 14 January 2000, para. 636.)”

Article 2

“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

Article 3

“States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”

Article 19

“1. Everyone shall have the right to hold opinions without interference.

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.” Article 20

“1. Any propaganda for war shall be prohibited by law.

“Freedom of opinion

Freedom of expression

...

The application of article 19 (3)

...

...”

“49. Laws 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.[21] The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.”
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members, particularly for the purpose of safeguarding and realising the ideals and principles which are their common heritage;

Recalling the Declaration of the Heads of State and Government of the member states of the Council of Europe, adopted in Vienna on 9 October 1993;

Recalling that the Vienna Declaration highlighted grave concern about the present resurgence of racism, xenophobia and antisemitism and the development of a climate of intolerance, and contained an undertaking to combat all ideologies, policies and practices constituting an incitement to racial hatred, violence and discrimination, as well as any action or language likely to strengthen fears and tensions between groups from different racial, ethnic, national, religious or social backgrounds;

Reaffirming its profound attachment to freedom of expression and information as expressed in the Declaration on the Freedom of Expression and Information of 29 April 1982;

Condemning, in line with the Vienna Declaration and the Declaration on Media in a Democratic Society, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994), all forms of expression which incite to racial hatred, xenophobia, antisemitism and all forms of intolerance, since they undermine democratic security, cultural cohesion and pluralism;

Noting that such forms of expression may have a greater and more damaging impact when disseminated through the media;

Believing that the need to combat such forms of expression is even more urgent in situations of tension and in times of war and other forms of armed conflict;

Believing that it is necessary to lay down guidelines for the governments of the member states on how to address these forms of expression, while recognising that most media cannot be blamed for such forms of expression;

Bearing in mind Article 7, paragraph 1, of the European Convention on Transfrontier Television and the case-law of the organs of the European Convention on Human Rights under Articles 10 and 17 of the latter Convention;

Having regard to the United Nations Convention on the Elimination of All Forms of Racial Discrimination and Resolution (68) 30 of the Committee of Ministers on Measures to be taken against incitement to racial, national and religious hatred;

Noting that not all member states have signed and ratified this Convention and implemented it by means of national legislation;

Aware of the need to reconcile the fight against racism and intolerance with the need to protect freedom of expression so as to avoid the risk of undermining democracy on the grounds of defending it;

Aware also of the need to respect fully the editorial independence and autonomy of the media,

Recommends that the governments of member states:

...”

Recognition of the Armenian Genocide

“[This written declaration commits only those who have signed it]

Recognition of genocides is an act which contributes to the respect for human dignity and the prevention of crimes against humanity;

The fact of the Armenian Genocide by the Ottoman Empire has been documented, recognised, and affirmed in the form of media and eyewitness reports, laws, resolutions, and statements by the United Nations, the European Parliament and Parliaments of the Council of Europe member States, including Sweden, Lithuania, Germany, Poland, the Netherlands, Slovakia, Switzerland, France, Italy, Belgium, Greece, Cyprus, the Russian Federation, as well as the US House of Representatives and 43 US States, Chile, Argentina, Venezuela, Canada, Uruguay and Lebanon.

The undersigned, members of the Parliamentary Assembly, call upon all members of the Parliamentary Assembly of the Council of Europe to take the necessary steps for the recognition of the genocide perpetrated against Armenians and other Christians in the Ottoman Empire at the beginning of the 20th century, which will strongly contribute to an eventual similar act of recognition by the Turkish authorities of this odious crime against humanity and, as a result, will lead to the normalisation of relations between Armenia and Turkey and thus contribute to regional peace, security and stability.”

C. Comparative law and practice

“A study of denial of crimes against humanity and genocide in the different countries under examination reveals considerable variation.

Spain, France and Luxembourg have all adopted an extensive approach to the prohibition of denial of these crimes. Spanish legislation refers generically to the denial of acts with the proven purpose of fully or partially eliminating an ethnic, racial or religious group. The perpetrator faces a sentence of one to two years’ imprisonment. In France and Luxembourg, the legislation refers to denial of crimes against humanity, as defined in Article 6 of the Charter of the International Military Tribunal, annexed to the London Agreement of 8 August 1945 ... This limitation of the substantive scope of the offence of denial of crimes against humanity is offset in Luxembourg by the fact that there is a special provision concerning denial of crimes of genocide. Denial of such crimes is punishable by the same sentences [imprisonment from eight days to six months and/or a fine ranging from 251 to 25,000 euros] as denial of crimes against humanity but the definition of genocide used for these purposes is that of the Luxembourg Law of 8 August 1985, which is general and abstract, not being limited to acts committed during the Second World War. The limited scope of the relevant provisions in France has been criticised and it should be noted in this connection that a Bill aimed at criminalising denial of the existence of the Armenian genocide was approved at its first reading by the National Assembly on 12 October 2006. Accordingly, it appears that only Luxembourg and Spain criminalise denial of crimes of genocide in their legislation, generically and without restricting themselves to particular episodes in history. In addition, denial of crimes against humanity in general is not currently a criminal offence in any country.

In this connection, in a group of countries – among which France can be included, from an analysis of its laws – only the denial of acts committed during the Second World War is a criminal offence. In Germany, for example, anyone who, publicly or at a meeting, denies or trivialises acts committed with the aim of totally or partially eliminating a national, religious or ethnic group during the National Socialist regime is punishable by up to five years’ imprisonment or a fine. In Austria, anyone who, acting in such a way that his or her position may be known by a large number of people, denies or severely trivialises genocide or other crimes against humanity committed by the National Socialist regime is punishable by up to ten years’ imprisonment. Following the same approach, Belgian law punishes by imprisonment for between eight days and one year anyone who denies or grossly trivialises, seeks to justify or approves of the genocide committed by the German National Socialist regime.

In other countries, in the absence of special statutory provision for criminal offences, the courts have intervened to ensure that negationism is punished. In particular, the Netherlands Supreme Court has held that the provisions of the Criminal Code prohibiting discriminatory acts were to be applied to punish denial of crimes against humanity. In addition, a Bill aimed at criminalising negationism is currently being examined in that country. The Canadian Human Rights Tribunal has referred to the criminal offence of exposing others to hatred or contempt, as provided for in the Canadian Human Rights Act, as a basis for condemning the content of a negationist website. The position of the judges in the United States is less settled, since that country affords extremely strict protection of freedom of expression, for historical and cultural reasons. However, it may be noted that in general, victims of offensive speech have to date succeeded in obtaining damages where they may legitimately have felt that their physical integrity was under threat.

In addition, there are a range of countries in which denial of crimes against humanity is not directly contemplated by the law. For some of those countries, it is conceivable that this might be covered by the definition of more general criminal offences. For example, under Italian law it is an offence to condone crimes of genocide; however, the boundary between condoning, trivialising and denying crimes is extremely thin. Norwegian law punishes anyone who makes an official statement that is discriminatory or hateful. This definition could conceivably apply to negationism. The Supreme Court has not yet had occasion to rule on this issue. In other countries, for example Denmark and Sweden, the trial courts have taken a position, having agreed to review whether the provisions of criminal law concerning discriminatory or hateful statements may be applied to cases of negationism, although they have not found them to be applicable in the cases before them. In Finland, the political authorities have expressed the view that such provisions are not applicable to negationism. Lastly, neither United Kingdom law nor Irish law deals with negationism.”

Section 1

“France publicly recognises the Armenian genocide of 1915.”

Section 1

“The first subsection of section 24 bis of the Freedom of the Press Act of 29 July 1881 shall be replaced by five subsections worded as follows:
‘The penalties provided for in the sixth subsection of section 24 shall be imposed on anyone who publicly condones, denies or grossly trivialises crimes of genocide, crimes against humanity and war crimes, as defined non-exhaustively:

(1) in Articles 6, 7 and 8 of the Statute of the International Criminal Court established in Rome on 17 July 1998;

(2) in Articles 211-1 and 212-1 of the Criminal Code;

(3) in Article 6 of the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945; and as recognised by law, in an international treaty signed and ratified by France or to which France has acceded, in a decision taken by a European Union or international institution, or as characterised by a French court, such decision being enforceable in France.’”

Section 2

“Section 48-2 of the Freedom of the Press Act of 29 July 1881 shall be amended as follows:

(1) After the word ‘deportees’, insert the words: ‘, or of any other victim of crimes of genocide, war crimes, crimes against humanity or crimes of collaboration with the enemy’;

(2) After the term ‘public defence’, insert the words ‘of genocides,’.”

“1. The applicant members of the National Assembly and the Senate have referred to the Constitutional Council the Law on criminalising denial of the existence of genocides recognised by law.

D E C I D E S:

Article 1.- The Law on criminalising denial of the existence of genocides recognised by law is unconstitutional.

Article 2.- This decision shall be published in the Official Gazette of the French Republic.

...”

“1. The pursuit of an aim of total or partial destruction of a national, ethnic, racial or religious group shall give rise to the following penalties:

...

...

“Dissemination, by any means, of ideas or doctrines justifying the offences provided for in the preceding paragraph of this Article or seeking to restore regimes or institutions that advocate practices constituting such offences shall be punishable by one to two years’ imprisonment.”

Article 457-3

“1. A sentence of imprisonment from eight days to six months and/or a fine of between 251 and 25,000 euros shall be imposed on anyone who ...

Article 136 bis

“Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such shall be categorised as genocide:

The crime of genocide is punishable by life imprisonment.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

A. Admissibility

(a) The applicable principles

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The Court found that the posters discovered at the applicant’s home contained various messages expressing his own opinions. While some of the messages were not shocking as far as their content was concerned, others could have contributed to tensions within the population, especially in the Romanian context. In that connection, the Court took particular note of the messages containing references to the Roma minority and the homosexual minority. Through their content, these messages sought to arouse hatred towards the minorities in question, constituted a serious threat to public order and ran counter to the fundamental values underpinning the Convention and a democratic society. Such acts were incompatible with democracy and human rights because they infringed the rights of others; on that account, in accordance with Article 17 of the Convention, the applicant could not rely on the provisions of Article 10.

(b) Application of these principles in the instant case

B. Merits

(a) “Prescribed by law”

(i) The parties’ submissions

(ii) The Court’s assessment

(b) Legitimate aim

(c) “Necessary in a democratic society”

(i) The parties’ submissions

A similar approach had been pursued in Giniewski v. France (no. 64016/00, ECHR 2006‑I), concerning a publication in which the applicant had sought to develop an argument about the scope of a particular doctrine and its possible links with the origins of the Holocaust. In that case, the Court had also stated that what was at issue was a view which the applicant had wished to express as a journalist and historian, and that it was essential in a democratic society that a debate on the causes of acts of particular gravity amounting to crimes against humanity should be able to take place freely (ibid., § 51).

In the same case, the Court had observed that statements or written texts containing conclusions and phrases which might offend, shock or disturb some people did not in themselves preclude the enjoyment of freedom of expression (ibid., § 52; the applicant also cited De Haes and Gijsels v. Belgium, 24 February 1997, § 46, Reports 1997-I).

(ii) The Court’s assessment

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ....”

(β) Concerning historical debate and research

(γ) Case-law in cases against Turkey concerning hate speech, the condoning of violence and the Armenian question

In the Court’s view, although the reasons given by the Istanbul National Security Court for convicting and sentencing the applicants had been relevant, they could not be considered sufficient to justify the interference with the applicants’ right to freedom of expression (ibid., § 52).

The Court observed that the television programme at issue in the case before it was about a sect whose followers had attracted public attention. In the Court’s view, the comments made by the applicant demonstrated an intransigent attitude towards and profound dissatisfaction with contemporary institutions in Turkey, such as the principle of secularism and democracy. Seen in their context, however, they could not be construed as a call to violence or as hate speech based on religious intolerance (ibid., § 48). The mere fact of defending sharia, without calling for violence to introduce it, could not be regarded as “hate speech” (ibid., § 51).

However, having regard to the fundamental nature of free political debate in a democratic society, the Court concluded that the reasons given to justify the applicant’s prosecution were not sufficient to satisfy it that the interference with the exercise of his right to freedom of expression had been “necessary in a democratic society”.

The Court also took into account the fact that the applicant had been writing in his capacity as a journalist and editor-in-chief of a Turkish-Armenian bilingual newspaper, commenting on issues concerning the Armenian minority in the context of his role as a player on the Turkish political scene. When Fırat Dink had expressed his resentment at attitudes which in his view amounted to denial of the incidents of 1915, he had merely been conveying his ideas and opinions on an issue of indisputable public concern in a democratic society. The Court considered it essential in such societies that the debate surrounding historical events of a particularly serious nature should be able to take place freely. It further noted that “it is an integral part of freedom of expression to seek historical truth” and that “it is not the Court’s role to arbitrate” on an underlying historical matter forming part of an ongoing public debate. Furthermore, the Court found that the articles by Fırat Dink had not been “gratuitously offensive” or insulting, and had not fostered disrespect or hatred (ibid., § 135, with references to the case-law).

Accordingly, there had been no “pressing social need” to find Fırat Dink guilty of denigrating “Turkishness”.

The Court observed that the applicant had been precluded from re-entering the country because of her controversial statements concerning the Kurdish and Armenian questions, which continued to be the subject of heated debate, not only in Turkey but also internationally.

However, the Court concluded that it was impossible to determine from the domestic courts’ reasoning how the applicant’s views were harmful to Turkey’s national security. Nor could it accept that “the situation complained of by the applicant did not fall within the ambit of any of her fundamental rights”. Bearing in mind that there had never been any indication that the applicant had committed an offence or been engaged in activities which could clearly be seen as harmful to Turkey, the reasons adduced by the domestic courts could not be regarded as sufficient and relevant justification for the interference with her right to freedom of expression.

To determine whether the applicant’s conviction was guided by a “pressing social need”, the Court must weigh the requirements of protecting others, namely the honour of the families and relatives of the victims of the atrocities, against the applicant’s freedom of expression. It should examine in particular whether the interference complained of, in the light of the circumstances of the case as a whole, was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it are relevant and sufficient.

(α) Nature of the applicant’s statements and the domestic courts’ margin of appreciation

(β) Method adopted by the domestic authorities to justify the applicant’s conviction: the notion of “consensus”

(γ) Whether there was a pressing social need

(δ) Proportionality of the measure to the aim pursued

(ε) Conclusions

II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

B. Costs and expenses

FOR THESE REASONS, THE COURT

Done in French, and notified in writing on 17 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi

Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) joint concurring opinion of Judges Raimondi and Sajó;

(b) joint partly dissenting opinion of Judges Vučinić and Pinto de Albuquerque. G.R.A.

S.H.N.

JOINT CONCURRING OPINION OF JUDGES RAIMONDI AND SAJÓ

There are occasions when judges of human rights courts have a special moral obligation to account for their position to people affected by the judgment. This is such an occasion.

Why do we have a special obligation vis-à-vis the Armenians? Because government-led destruction of a people always commands particular attention and imposes special obligations on all of us. From 1915 to 1917, the Armenian people experienced an unimaginable degree of suffering. This tragedy has had lasting consequences even for the fifth generation that grew up after the Meds Yeghern (Great Crime), in part because that past injustice and suffering has never been fully acknowledged or remedied.

Many people in the Armenian community may feel abandoned, even betrayed, by the majority’s position in this case. They may conclude that once again they have been treated with less understanding and respect than they deserve given the calamities that have destroyed Armenian communities in the past. It is in anticipation of this reaction that we provide this account.

Many Armenians believe that true recognition of the Great Crime requires an unconditional application of the term genocide. However, it is often rightly said that determining truth in historical matters is not the role of the law, and even less that of the courts. This does not prevent the courts from apportioning historical responsibilities. The determination of legal responsibility inevitably requires a reading of history covering more than facts alone. Examining the period in question in the light of earlier massacres (for example, the Hamidian massacres), we are convinced that there is sufficient evidence (a terribly legalistic word in the present context) to show that Armenian citizens of the Ottoman Empire were subjected to a State policy that resulted in the death and suffering of hundreds of thousands of people (estimates range from 600,000 to 1,500,000) and brought Armenians as a distinct community to the verge of extinction. It is true that the specific factors which triggered those events remain contested. Regardless of this, there can be no acceptable reason for State action – or even inaction, as the case may be – that resulted in such an abominable tragedy, in the death of children and all those other innocent people.

We are left with the symbolic and moral obligation to define and label these events, which is where we run into tensions between law, moral truth and history. We know that when Raphael Lemkin (Axis Rule in Occupied Europe, 1944) coined the term genocide, he had in mind the 1915 massacres and deportations. The use of the term to denote these events is appropriate in everyday discourse, and cannot give rise to punishment. This is how we read the Dink v. Turkey judgment (nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010).

When it comes to punishment for genocide denial and official recognition of certain historical episodes as genocides, many countries refer to specific events and determinations made by international courts, while others make special provisions in domestic law to distinguish the genocides whose denial is punishable, based on the modern legal definition of genocide.

This narrow specification serves legal certainty, which is of the utmost importance in the context of free speech. But it is here that Armenians, and other communities who suffered extreme injustice prior to the crystallisation of the modern concept of genocide or who were simply left out after 1948 for political reasons, suffer an additional injustice – because the Great Crime occurred in 1915, prior to the development of the term “genocide” and subsequent genocide law. Some countries have therefore enacted special laws which expressly speak of the Armenian genocide and which make its denial a crime.

This is not the case in Switzerland. The Swiss Federal Court decided to overcome this difficulty in the present case by extending the definition of genocide to the Great Crime, stating that this was “generally accepted” as constituting genocide. Such an extension of a legal concept is problematic in criminal law and, in the circumstances of this case, incompatible with the standards of freedom of expression the Court is called upon to protect within the framework of the Convention.

In determining whether there has been a violation of the right to freedom of expression, the Court is obliged to assess whether the interference with speech was prescribed by law, where the law is defined, concrete and foreseeable. The definition of genocide is clear in international law, and does not include references to the same concepts that are accepted by the public at large. Of course, even criminal-law concepts have a certain openness to common-sense interpretations. But here we are dealing with the criminalisation of expression. The Federal Court’s interpretation is overly broad in that a speaker will never know which statements fall into the punishable category, resulting in a chilling effect. Moreover, Swiss law does not provide for exceptions or defences in the fields of science and art.

The level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999‑VIII, and Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173).

In this case, the applicant could not have foreseen that his comments would be held to be criminal in nature. Previously there had been prosecutions for comparable statements resulting in acquittals, indicating that at the level of the lower courts the Federal Court’s later assumption about the common understanding of genocide was not obvious. Similarly, there is political division in Switzerland among the two legislative chambers regarding the characterisation of the Great Crime as genocide.

The Court will usually not pursue its examination of a complaint any further once an interference is found which was not prescribed by law. We consider that it should have gone further in this case.

The Court has construed the purpose of the limitation of freedom of expression in the present case as being a means to protect the honour of those who perished in the Great Crime. However, this purpose is secondary at best and it tips the proportionality exercise towards a violation: remembrance of the dead, while evidently important, may be outweighed by the need not to penalise a purportedly scholarly speech made by a living person today.

But the Swiss Government also argued that public order was served by the criminalisation of genocide denial. To our mind this is undeniable in view of the actual circumstances of the case. The Court should be especially alert in cases where the purposes of an interference are provided ex post facto, only in the course of the proceedings before the Court. This is not the case here: the genocide-related provision in the Criminal Code was introduced to comply with Switzerland’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (1965).

Moreover, the Federal Court, to justify its own position, stated: “The applicant’s conviction is thus intended to protect the human dignity of members of the Armenian community, who identify themselves through the memory of the 1915 genocide.” Criminalisation of statements held to constitute attacks on the identity of certain individuals is deeply troubling (see the Court’s remarks on “Turkishness”, for example in Dink) – although of course, we are not in a position to pass judgment on the formation of a nation’s identity or a national community where it is based on national tragedy. This is a contested issue (see Hrant Dink’s critical position in that regard in Dink).

The Federal Court did not elaborate on that point. Dignity as a ground for restriction of rights is ambiguous, even if dignity is often understood as a fundamental value for human rights protection. Of course, the dignity of an individual may be violated when the humanity of the group is denied or diminished. This is the case when their belonging to humanity on equal grounds is denied on the grounds of their belonging to a group that is alleged not to be part of humanity. However, we do not see how the dignity of members of the Armenian community is affected in the above sense by the denial of the existence of a master plan of extermination by Talaat Pasha and his cronies, unless such a statement can be understood as calling the genocide-related component of the Armenian identity a falsification. This is not, however, the plain meaning of the denial of the legal assertion made by the applicant; and it is certainly not the meaning attributed to it by the Swiss authorities.

Although the applicant’s remark was disrespectful, even outrageously so, it does not necessarily diminish the humanity of the affected group. Of course, negationist statements may constitute a crime to the extent that they incite hatred and violence and represent an actual danger given the history and social conditions in the society in question. However, none of these elements were present in Switzerland.

Rather, the primary purpose of the law and of the specific interference with the applicant’s freedom of expression revolves around racial discrimination. (“Racial” includes national discrimination, just as genocide can be carried out not only against an ethnic group but also against a religious or national community.) The approach taken by the law as interpreted in this specific case is that all speech that denies the legal characterisation of the destruction of a people is racist or racially discriminatory, or amounts to an act of discrimination. Such unconditional criminalisation at the level of the law makes it practically impossible to take the freedom-of-expression aspects of the utterances into consideration. Speech, including disrespectful scholarly speech, is automatically turned into a racially discriminatory act.[22]

The Court rightly found it necessary to undertake sponte sua an analysis under Article 17. The unconditional criminalisation of the denial of genocide (extended to the 1915 events or applied to them by implication) means that such negation amounts to an abuse of rights (see the French courts’ position in the Faurisson case (cited below), in which revisionist statements were treated as aggression and not speech). Given the Court’s case-law in the context of Articles 10 and 17, a speech act of this kind must be actually destructive and not just offensive in theory. Where the Court has found an abuse for the purposes of Article 17, it has done so because Article 10 had been relied on by groups with totalitarian motives (see Vajnai v. Hungary, no. 33629/06, § 24, ECHR 2008) and because the speech act itself had destructive potential.

The construction of speech in criminal law as an unconditional crime reflects Article 17 considerations and remains inherently problematic, among other reasons because there is little opportunity to consider the freedom of expression aspects within the unconditional setting of criminal law, where the utterance of certain words is a crime per se, without any further possibility of a proportionality analysis.

In its Views in the case of Robert Faurisson v. France (Communication no. 550/1993, UN Doc. CCPR/C/58/D/550/1993(1996)), the United Nations Human Rights Committee expressly admitted that the application of the terms of the Gayssot Act, which, in their effect, made it a criminal offence to challenge the conclusions and the verdict of the International Military Tribunal at Nuremberg, could lead to decisions or measures that were incompatible with the International Covenant on Civil and Political Rights.

According to the present judgment, the applicant expressed his views as a scholar on a matter of historical debate. The Federal Court seems to have had a slightly different interpretation: “With regard to intent, the Criminal Court found that [the applicant], a doctor of laws, politician and self-styled writer and historian, had acted in full knowledge of the consequences, stating that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place” (see paragraph 13 of the judgment). In our view, the applicant tried to use historical arguments in the courtroom to prove his point; however, his original remarks were not made in the context of a scholarly debate, nor was his attitude truly scholarly, as he ab ovo excluded scholarly evidence that would be contrary to his views. The impugned statements formed part of a political debate on a matter of public interest, intended to influence Swiss parliamentary (legislative) policy. We agree, however, that the freedom of research is at stake in the evaluation of the case.

The Federal Court seems to accept that the applicant did not contest the occurrence of the massacres, and his “negationism” consisted in the fact that he tried to put forward an alternative cause of those events: “It should be noted, moreover, that the appellant has not denied the existence either of massacres or of deportations ..., which cannot be categorised, even if one exercises restraint, as anything other than crimes against humanity ... Justification of such crimes, even with reference to the law of war or alleged security considerations, will in itself fall foul of Article 261 bis § 4 of the Criminal Code.” We find the applicant’s arguments, namely that an “Armenian aggression” served as the origin of the tragic events, more than troubling. Under particular circumstances (see, conversely, Fáber v. Hungary, no. 40721/08, 24 July 2012) such remarks, combined with negationist discourse, might have resulted in a clear and present danger of incitement to hatred, the standard applied by the Court in similar cases for finding that the interference of the criminal law was proportionate (see Gül and Others v. Turkey, no. 4870/02, § 42, 8 June 2010).

In the present case, however, there is no evidence that the speech in question constituted direct incitement to hatred amounting to discrimination. Was it necessary in the democratic society of Switzerland to punish the applicant for the statements he made? We share the Court’s position that the rejection of the legal characterisation of the events of 1915 was not in itself sufficient to amount to incitement of hatred towards the Armenian people.

In Faurisson it was argued that the author’s revisionist discourse incited his readers to anti-Semitic behaviour. Conversely, in the present case the applicant can be said to have expressed anti-imperialist sentiments in line with his political views, rather than anti-Armenian sentiment; he attributes what he calls the “genocide lie” to international imperialism rather than to Armenians themselves.

As a rule, incitement to hatred has to be directed against identifiable individuals and is not understood as a form of criminal group libel. The concurring opinion in Faurisson by Elizabeth Evatt and David Kretzmer, co-signed by Eckart Klein, refers to the possibility of an exception[23]: “However, there may be circumstances in which the right of a person to be free from incitement to discrimination on grounds of race, religion or national origins cannot be fully protected by a narrow, explicit law on incitement ... This is the case where, in a particular social and historical context, statements that do not meet the strict legal criteria of incitement can be shown to constitute part of a pattern of incitement against a given racial, religious or national group, or where those interested in spreading hostility and hatred adopt sophisticated forms of speech that are not punishable under the law against racial incitement, even though their effect may be as pernicious as explicit incitement, if not more so.”

We consider that these circumstances should have been clearly demonstrated in the case at hand. In their absence, the criminalisation of the applicant’s speech, even if it were held to border on negationism, does not satisfy the necessity requirement; thus, the criminal punishment in the present case is disproportionate. The legitimate objective of the law could have been achieved by a less drastic provision rather than legislative dogma that could not be challenged, no matter what the object behind that challenge or its likely consequences.

JOINT PARTLY DISSENTING OPINION OF JUDGES VUČINIĆ AND PINTO DE ALBUQUERQUE

The international recognition of the Armenian genocide

The lawfulness of the criminalisation of genocide denial

The proportionality of the criminalisation of genocide denial

The necessity of the criminalisation of genocide denial

The application of the European standard to the facts of the case

Conclusion

[1] The Armenian genocide has not been recognised by the Council of Europe as such, as distinct from certain members of the Parliamentary Assembly (see paragraph 29 below).

[2] See communication No. 550/93, Faurisson v. France, Views adopted on 8 November 1996.

[3] See communication No. 157/1983, Mpaka-Nsusu v. Zaire, Views adopted on 26 March 1986; No. 414/1990, Mika Miha v. Equatorial Guinea, Views adopted on 8 July 1994.

[4] See communication No. 878/1999, Kang v. Republic of Korea, Views adopted on 15 July 2003.

[5] See communications Nos. 359/1989 and 385/1989, Ballantyne, Davidson and McIntyre v. Canada, Views adopted on 18 October 1990.

[6] See communication No. 414/1990, Mika Miha v. Equatorial Guinea.

[7] See communication No. 1189/2003, Fernando v. Sri Lanka, Views adopted on 31 March 2005.

[8] See communication No. 1157/2003, Coleman v. Australia, Views adopted on 17 July 2006.

[9] Concluding observations on Japan (CCPR/C/JPN/CO/5).

[10] See communication No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005.

[11] See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan, Views adopted on 19 March 2009.

[12] See communication No. 926/2000, Shin v. Republic of Korea, Views adopted on 16 March 2004.

[13] See communication No. 736/97, Ross v. Canada, Views adopted on 18 October 2000.

[14] Ibid.

[15] Ibid.

[16] See communication No. 927/2000, Svetik v. Belarus, Views adopted on 8 July 2004.

[17] Ibid.

[18] See communication No. 736/97, Ross v. Canada, Views adopted on 18 October 2000.

[19] See communication No. 550/93, Faurisson v. France; concluding observations on Austria (CCPR/C/AUT/CO/4).

[20] Concluding observations on Slovakia (CCPR/CO/78/SVK); concluding observations on Israel (CCPR/CO/78/ISR).

[21] So called “memory-laws”, see communication No. 550/93, Faurisson v. France. See also concluding observations on Hungary (CCPR/C/HUN/CO/5) paragraph 19.

[22] For a possible consequence of this approach, consider the case of Bernard Lewis. In an interview with Le Monde Professor Lewis stated, among other things: “There is no serious proof of a decision and a plan by the Ottoman Government to exterminate the Armenian nation.” Professor Lewis was found liable on 21 June 1995 (civil judgment, Paris tribunal de grande instance, on the basis of Article 1382 of the Civil Code) and ordered to pay one franc in damages to the claimant associations, which had accused him of “negationism”. In its judgment the court held: “In concealing the aspects contradicting his thesis ... he ... failed in his duties of objectivity and caution by expressing himself unequivocally ... [accordingly,] his statements, which are capable of unjustly reviving the pain of the Armenian community, are wrongful and warrant an award of compensation.”

[23] We do not intend to endorse their conclusions regarding the facts of that case.

[24] Prior to that date, the legislature had already affirmed that the Armenian genocide was one of the examples to which the new criminal offence provided for in paragraph 4 of Article 261 bis of the Criminal Code should be applied (see Official Gazette of the Federal Assembly (Bulletin Officiel de l’assemblée fédérale – Conseil national), 1993, p. 1076).

[25] See the essential work by Vahakn Dadrian on the evidence gathered by the Turkish Military Tribunal of planned mass murder, systematic torture and organised deportation of the Armenian people, “The documentation of the World War I Armenian Massacres in the proceedings of the Turkish Military Tribunal”, in Int.J. Middle East Stud. 23 (1991), pp. 549-576, as well as the special issue of Journal of Political and Military Sociology, vol. 22 no. 1 (1994); and the special issue of Revue d’Histoire de la Shoah, no. 177-178 (2003).

[26] In a firm statement, Mustafa Kemal himself, in an interview published on 1 August 1926 in the Los Angeles Examiner, acknowledged that “These left-overs from the former Young Turk Party, who should have been made to account for the millions of our Christian subjects who were ruthlessly driven en masse from their homes and massacred, have been restive under the Republican rule.” Many righteous Turks repudiated these acts, and even saved Armenians (see “Turks Who Saved Armenians: An Introduction”, at zoryaninstitute.org). For example, Mehmet Celal Bey, Governor of Aleppo and Konya, who saved many Armenians, once said: “The purpose was to annihilate and they were annihilated. It is impossible to hide and conceal this policy conducted by the İttihat ve Terakki which was drafted by its leaders and was ultimately accepted by the general public”; Mustafa Arif, Interior Minister of the Ottoman Empire in 1917 and 1918, stated: “Unfortunately, our wartime leaders, imbued with a spirit of brigandage, carried out the law of deportation in a manner that could surpass the proclivities of the most bloodthirsty bandits. They decided to exterminate the Armenians, and they did exterminate them”; and Ahmed Rıza, president of the Turkish Senate, admitted on 21 October 1918 that the mass murder of Armenians had been an “officially” sanctioned crime. More recently, the bold and straightforward Declaration of the Human Rights Association of Turkey, of 24 April 2006, is to be highlighted.

[27] The Ottoman genocidal policy was revealed to the world by direct witnesses to the events, such as Henry Morgenthau, US Ambassador to the Ottoman Empire in 1913-1916, who stated: “The great massacres and persecutions of the past seem almost insignificant when compared with the suffering of the Armenian race in 1915 … When the Turkish authorities gave the orders for these deportations, they were merely giving the death warrant for a whole race; they understood this well, and in their conversations with me, they made no particular attempt to conceal the fact … the one motive was cold-blooded, calculating state policy”; Count Wolff-Metternich, German Ambassador to the Ottoman Empire, who cabled to the German Chancellor, on 10 July 1916: “In its attempt to carry out its purpose to resolve the Armenian question by the destruction of the Armenian race, the Turkish government has refused to be deterred neither by our representations, nor by those of the American Embassy, nor by the delegate of the Pope, nor by the threats of the Allied Powers, nor in deference to the public opinion of the West representing one-half of the world.”; Giacomo Gorrini, Italian Consul General at Trebizond, who in an interview on 25 August 1915 said: “As for the Armenians, they were treated differently in the different vilayets. They were suspect and spied upon everywhere, but they suffered real extermination, worse than massacre, in the so-called ‘Armenian Vilayets’”; and Carl Ellis Wandel, the Danish diplomat in Constantinople, who produced a long and detailed report on 4 September 1915 on “the cruel intent of the Turks, to exterminate the Armenian people”. These testimonies were confirmed by Fridtjof Nansen, High Commissioner for Refugees under the League of Nations, who stated: “The whole plan of extermination was nothing less than a cold-blooded, calculated political measure, having for its object the annihilation of a superior element in the population, which might prove troublesome, and to this must be added the motive of greed.” Sir Winston Churchill agreed: “The Turkish Government began and ruthlessly carried out the infamous massacre and deportation of Armenians in Asia Minor. The clearance of the race from Asia Minor was about as complete as such an act, on a scale so great, could well be” (see the documents available at armenocide.de and genocide-museum.am).

[28] In the same way, Articles 226 and 227 of the Treaty of Sèvres, Articles 228 and 229 of the Treaty of Versailles, Articles 176 and 177 of the Treaty of Saint-Germain-en-Laye, Articles 157 and 158 of the Treaty of Trianon and Articles 118 and 119 of the Treaty of Neuilly-sur-Seine are the precedents of Article 6 (b) of the Nuremberg Charter, and Article 227 of the Treaty of Versailles is the precedent of Article 6 (a) of the Nuremberg Charter.

[29] On the inadmissibility of statutory limitations to prosecution of genocide and crimes against humanity, see Article 29 of the Rome Statute of the International Criminal Court (1998), with 122 States Parties, including Switzerland; the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968), with 54 States Parties; the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes (1974), with 7 States Parties; and paragraph 6 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147 of 16 December 2005. In his report “The rule of law and transitional justice in conflict and post-conflict societies” of 23 August 2004, UN Secretary-General Kofi Annan recommended that peace agreements and Security Council resolutions and mandates “reject any endorsement of amnesty for genocide, war crimes, or crimes against humanity” (§ 64 (c)). These views were repeated in his follow-up report on the subject, dated 12 October 2011 (§§ 12 and 67). On the inadmissibility of amnesty for genocide or crimes against humanity, see also Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Amnesties, 2009, HR/PUB/09/1; UNHRC General Comment no. 31 on the nature of the general legal obligation imposed on States Parties to the Covenant (2004), § 18; and the consistent practice of international courts, such as: Special Court for Sierra Leone, Prosecutor v. Morris Kallon, case no. SCSL-2004-15-AR72(E), and Prosecutor v. Brima Bazzy Kamara, case no. SCSL-2004-16-AR72(E), Appeals Chamber Decision on challenge to jurisdiction: Lomé Accord Amnesty (13 March 2004), §§ 67-73; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundžija, case no. IT-95-17/1-T, Judgment of 10 December 1998, § 155; Inter-American Court of Human Rights, Almonacid Arellano et al. v. Chile, Judgment of 26 September 2006, § 114, and Velásquez Rodríguez Case, Judgment of 29 July 1988, § 172; and Inter-American Commission on Human Rights, Alicia Consuelo Herrera et al. v. Argentina, Report No. 28/92, 2 October 1992; Santos Mendoza et al. v. Uruguay, Report No. 29/92, 2 October 1992, Garay Hermosilla et al. v. Chile, Report No. 36/96, 15 October 1996; Las Hojas Massacre Case v. El Salvador, Report No. 26/92, 24 September 1992; and Ignacio Ellacuría et al. v. El Salvador, Report No. 136/99, 22 December 1999; see also the Court’s principled position against amnesty for Article 3 violations in Okkalı v. Turkey, no. 52067/99, § 76, ECHR 2006-XII.

[30] President François Mitterrand stated: “It is not possible to erase the traces of the genocide which struck you.” President Charles de Gaulle declared: “I bow down before the victims of the massacres perpetrated against your peaceful people by the Turkish governments of that time with a view to its extermination.”

[31] President Barack Obama stated on 24 April 2012: “Today, we commemorate the Meds Yeghern, one of the worst atrocities of the 20th century. In doing so, we honor the memory of the 1.5 million Armenians who were brutally massacred or marched to their deaths in the waning days of the Ottoman Empire. … I have consistently stated my own view of what occurred in 1915. My view of that history has not changed”, and previously, on 28 April 2008: “it is imperative that we recognize the horrific acts carried out against the Armenian people as genocide”. President George Bush declared on 20 April 1990: “[We join] Armenians around the world [as we remember] the terrible massacres suffered in 1915–1923 at the hands of the rulers of the Ottoman Empire. The United States responded to this crime against humanity by leading diplomatic and private relief efforts.” President Ronald Reagan affirmed on 22 April 1981: “Like the genocide of the Armenians before it, and the genocide of the Cambodians which followed it and like too many other such persecutions of too many other peoples – the lessons of the Holocaust must never be forgotten”. President Jimmy Carter declared on 16 May 1978: “It is generally not known in the world that, in the years preceding 1916, there was a concerted effort made to eliminate all the Armenian people, probably one of the greatest tragedies that ever befell any group. And there weren't any Nuremberg trials.”

[32] The point is settled in the literature on Swiss criminal law (Niggli, Rassendiskriminerung, Ein Kommentar zu Art. 261bis StG und Art. 171c MStG, 2nd edition, 2007, no. 1363; Vest, “Zur Leugnung des Völkermordes an den Armeniern 1915”, in AJP 2000, pp. 66-72, Aubert, “L’article sur la discrimination raciale et la Constitution fédérale”, in AJK, 9/1994, and Dorrit Mettler, annotation 63 on Article 261 bis, in Niggli/Wiprächtiger, Strafrecht II, 3rd edition, 2013).

[33] Criminal provisions on genocide denial can be found in Article 458 of the Andorran Criminal Code, Article 397 (1) of the Armenian Criminal Code, Article 1 § 3h of the Austrian Law on National Socialism Prohibition (1947, amended 1992), Article 1 of the Belgian Law of 23 May 1995 (amended 1999), Article 405 of the Czech Criminal Code, Article 24 bis of the French Law of 29 July 1881 as amended by Law of 13 July 1990, Article 130 (3) of the German Criminal Code, Article 269 (c) of the Hungarian Criminal Code, Article 325 (4) of the Croatian Criminal Code, section 283 of the Liechtenstein Criminal Code, Article 170(2) of the Lithuanian Criminal Code, Article 82 B of the Maltese Criminal Code, Article 457 (3) of the Luxembourg Criminal Code, Article 407-a of the Macedonian Criminal Code, Article 370 (2) of the Montenegrin Criminal Code, Article 55 of the Polish Act on the Institute of National Remembrance of 18 December 1998, Article 422d of the Slovakian Criminal Code, Article 297 § 2 of the Slovenian Criminal Code, Article 242, no. 2 (b) of the Portuguese Criminal Code, and Articles 5 and 6 of the Romanian Emergency Ordinance No. 31 of 13 March 2002. Article 8 of the Italian Law no. 962 of 9 October 1967 punishes the condoning of genocide. The current version of Article 607 (1) of the Spanish Criminal Code refers exclusively to the justification of genocide. Finally, in some European countries, there is no specific criminal provision, but courts apply the more general provision of incitement to hatred or discrimination, for example in the Netherlands, where Articles 137c and 137d of the Criminal Code are applied to denial of genocide (Supreme Court, judgment of 27 October 1987).

[34] Swiss scholars have argued that genocide denial not only offends the memory of the victims, but constitutes implicit incitement to discrimination against the survivors (Aubert, cited above, no. 36, and Niggli, “Es gibt kein Menschenrecht auf Menschenrechtsverletzung”, in Völkermord und Verdrängung, 1998, p. 87, and Niggli/Exquis, “Recht, Geschichte und Politik”, in AJP 4/2005, 436).

[35] In fact, the Federal Court has consistent case-law on denial of genocide (see judgments of 5 December 1997 (BGE 123 IV 202), 30 April 1998 (BGE 124 IV 121), 3 November 1999 (BGE 126 IV 20), of 7 November 2002 (BGE 129 IV 95), 16 September 2010 (no. 6B.297/2010) and 24 February 2011 (no. 6B 1024/2010)). In the Federal Court’s view, the criminal provision in question applies to genocides other than the Shoah, since it includes all facts that are considered, according to a “very general consensus”, to constitute genocide, and the legal values protected (geschützte Rechtsgüter) by the criminal provision are twofold: directly, human dignity and public safety (öffentliche Sicherheit) and public peace or order (öffentliche Friede), and indirectly, the safety and honour of individual members of the victimised people. Bearing in mind the clarifications added below in this opinion, this interpretation is not arbitrary.

[36] See Judge Pinto de Albuquerque’s separate opinion in Fáber v. Hungary, no. 40721/08, 24 July 2012.

[37] For an introductory explanation of the standard of clear and imminent danger, see Judge Pinto de Albuquerque’s separate opinion in Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, ECHR 2012.

[38] See Judge Pinto de Albuquerque’s separate opinion in Vona v. Hungary, no. 35943/10, ECHR 2013.

[39] ETS no. 189. It is true that the respondent State has signed, but not ratified, the Additional Protocol, but this fact alone does not justify ignoring the standard of the Council of Europe, since the Additional Protocol has already entered into force and has been ratified by twenty States. It is also true that States may reserve the right not to apply Article 6 § 1 of the Additional Protocol, but this right in itself only serves to show that this provision does not yet reflect a norm of customary international law. In other words, the prohibition of denial of genocide has not yet been incorporated as a constituent part of the customary and peremptory norm of criminalisation of racist, xenophobic and intolerant expression. Nevertheless, it can be affirmed that there is, at least in Europe, an evolving international obligation to criminalise the denial of genocide.

[40] To be precise, no defendant was convicted of the crime of genocide in Nuremberg. Thus, the reference to the crime of genocide as established in “final and binding decisions of the International Military Tribunal” is, in fact, a reference to the crime of genocide as it was then understood, namely as a part of crimes against the laws of humanity, and as it was later codified in the Genocide Convention.

[41] Corresponding to an “established historical fact”, to use the Court’s expression (see Lehideux and Isorni v. France, 23 September 1998, § 47, Reports of Judgments and Decisions 1998-VII, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX).

[42] See the Spanish Constitutional Court’s judgment of 7 November 2007, no. 235/2007, with four strong dissenting opinions. It is important to stress, first, that Spain has not yet ratified the above-mentioned Additional Protocol, which was thus not taken into account in the judgment, and, second, that the Spanish justices were expressing their view prior to Framework Decision 2008/913/JHA, which invalidates their distinguo. Both the Abogado del Estado (State Advocate General) and the Fiscal General del Estado (General Public Prosecutor) expressed the opposite view to the majority. The mere denial of genocide can be “the most direct incitement” (impulso directísimo) to grave crimes, and “this presumption is not unreasonable or excessive, but it is the product of painful historical experiences”, as the Abogado del Estado affirmed. Or as the Fiscal General argued, the denial of genocide leads to the creation of “an environment of acceptance and oblivion” (un clima de aceptación y olvido) of grave historical facts which can give rise to violence.

[43] To this effect, see the German Federal Constitutional Court’s judgments of 13 April 1994 (1 BvR 23/94, § 34), 25 March 2008 (1 BvR 1753/03, § 43), and 9 November 2011 (1 BvR 461/08, § 22), on the lack of protection of the “Auschwitz lie” (Auschwitzlüge) under the freedom of expression; the Canadian Supreme Court in R. v. Keegstra (1996), 3 SCR 667, on the applicability of the offence of promoting racist hate propaganda, set out in section 319 (2) of the Canadian Criminal Code, to the defendant’s anti-Semitic statements, including his Holocaust denial; and the Committee on the Elimination of Racial Discrimination (CERD), General Recommendation no. 35, 26 September 2013, § 14. It should be stressed that the CERD does not require that genocide or crimes against humanity be established by a final decision of an international or national court.

[44] The dissemination of scientific information, based on appropriate evidence, by a bona fide speaker, may evidently serve as a defence regarding scientific speech on genocide.

[45] French Constitutional Council, decision of 28 February 2012.

[46] In its decision of 28 February 2012 the French Constitutional Council added: “Parliament has interfered in an unconstitutional manner with the exercise of freedom of expression and communication”. This laconic statement is insufficient to prove a breach of the freedom of expression. Not even a single word is provided as to the necessity and proportionality of the interference with the freedom of expression, in relation to the criminal-policy aims pursued by the criminalisation of genocide denial.

[47] Since Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the US Supreme Court has dealt with the issue of “fighting words” and “expressive conduct” with the same insulting or threatening meaning, such as flag desecration and cross-burning. In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court admitted the expression “Fuck the Draft” as constitutionally protected, because no individual actually or likely to be present could reasonably have regarded the words on the appellant's jacket as a direct personal insult, and there was no evidence that its use was inherently likely to cause or incite to violence. These were not unconstitutional “fighting words”. In Street v. New York, 394 U.S. 576 (1969), the Supreme Court considered that the mere offensiveness of utterances against the flag did not qualify as “fighting words” either. The same was valid for the expressive conduct of flag-burning itself, since it did not always pose an imminent threat of lawless action, according to the Brandenburg test (Texas v. Johnson, 491 U.S. 397 (1989)). In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Supreme Court considered unconstitutional the criminalisation of burning a cross or placing a Nazi swastika or any other symbol in a public or private property, which one knew or had reasonable grounds to know aroused anger, alarm or resentment in others on the basis of race, colour, creed, religion or gender, because the definition of this offence was overly broad, proscribing both “fighting words” and protected speech, and because the regulation was “content-based”, proscribing only activities which conveyed messages concerning particular topics. But in Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court practically overturned the R.A.V. v. City of St. Paul precedent, by holding that cross-burning could be punished as a criminal offence if and when the defendant’s conduct was a signal of impending intimidation and the intent to intimidate was proven by the State. In any case, the burden of proof should not be placed on the defendant to demonstrate that he or she did not intend the cross-burning as intimidation. In his dissent, Justice Thomas went even further and explained that cross-burning was always a threat of some kind, and therefore an exception to the First Amendment. It can thus be argued that, from a substantive perspective, the opinion of the Swiss Federal Court on denial of genocide is in line with both the US Supreme Court’s majority in Virginia v. Black and the Canadian Supreme Court’s majority in R. v. Keegstra.

[48] See the worrying reports on the situation of Armenians in the fourth report of ECRI on Turkey (2011, §§ 90-91 and 142), the third report of ECRI on Azerbaijan (2011, § 101), the third report of ECRI on Georgia (2010, § 74), and the third report of ECRI on Turkey (2005, § 35 and 89-93). Hence, we do not agree with the majority’s underlying assumption that the need for criminal protection diminished with the passage of time. This aspect of the necessity of making genocide denial a criminal offence was ignored by both the French Constitutional Council and the majority of the Spanish Constitutional Court, but not by the dissenters or the Fiscal General, who referred to the persistent racist and xenophobic movement in Europe as sufficient justification for the criminalisation of genocide denial.

[49] See Garaudy, cited above, and at the level of the UNHRC, Robert Faurisson v. France, communication no. 550/1993, 8 November 1996. Thus, paragraph 49 of the UNHRC’s General Comment no. 34 neither reflects the UNHRC’s previous case-law nor the settled case-law of the Court. Furthermore, it does not touch on the issue of justification or glorification of a crime committed in the past, which indisputably warrants criminal punishment. Finally, it only refers to “the expression of an erroneous opinion” and “an incorrect interpretation of past events”. These expressions are ambiguous and misleading. The Committee certainly did not intend to refer to “deliberate false statements on the existence of a crime”, let alone to deliberate false statements on the existence of the worst of crimes, genocide. Otherwise, the Committee would be accepting the condoning and justification of a murderer and his or her infamous deeds, or even the deliberate denial of the Shoah, as being covered by freedom of expression. Thus, until it is reviewed, the unfortunate paragraph 49 warrants a restrictive interpretation which is in line with paragraph 3 of Article 19 and Article 20 of the International Covenant on Civil and Political Rights. That was exactly what the CERD did in its General Recommendation no. 35, referred to above.

[50] We cannot therefore accept the majority’s statement in paragraph 52 of the judgment: “Nor does it appear that the applicant has expressed contempt towards the victims of the events in question”. This statement not only lacks any evidential basis, but contradicts the facts established by the domestic courts. The majority are acting here as a court of first instance, reassessing the intention of the applicant without even having had the benefit of hearing and questioning him personally.

[51] See the applicant’s statements before the public prosecutor (23 July 2005), the investigating judge (20 September 2005) and the Police Court (8 March 2007), included in the case file. In Witzsch v. Germany ((dec.), no. 41448/98, 20 April 1999), the Court found that the expression “historical lies” about the mass murder of Nazi victims was not protected by Article 10. The same reasoning was confirmed in Schimanek v. Austria ((dec.), no. 32307/96, 1 February 2000) and Witzsch v. Germany ((dec.), no. 7485/03, 13 December 2005).

[52] This important fact was also pointed out by the Federal Court (point 5.2 of the judgment of 12 December 2007) and by the respondent Government in their observations to the Court (§ 25). Thus, we cannot accept that the object of the applicant’s statements was the legal classification of the events and not the events per se. This argument contradicts common sense. The applicant did not only dispute the legal classification, but also portrayed the massacre of Armenians as equivalent to war casualties suffered on the Turkish side and justified Talaat Pasha’s genocidal policy as an act of self-defence against an Armenian aggression.

[53] The context of a political debate or meeting is clearly irrelevant to the racist or discriminatory nature of speech. See Judge Pinto de Albuquerque’s separate opinion in Vona, cited above; and also Féret v. Belgium, no. 15615/07, §§ 75-76, 16 July 2009, and CERD Communication no. 34/2004, § 7.5, Communication no. 43/2008, § 7.6, and Communication no. 48/2010, § 8.4.

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