CASE OF PERİNÇEK v. SWITZERLAND

Application no. 27510/08 · Delivered 2015-10-15 · ECLI:CE:ECHR:2015:1015JUD002751008 · Languages: EN · EN · FR · SV

← Strasbourg↗ HUDOC original
Application no.
27510/08
Delivered
2015-10-15
Respondent State
CHE
Conclusion
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Convention articles
10, 10-1, 10-2, 16, 41
Importance
Key case
Original
HUDOC ↗
PresidentDean SpielmannJudgeJosep CasadevallJudgeMark VilligerJudgeIsabelle BerroJudgeIşıl KarakaşJudgeJán ŠikutaJudgePäivi HirveläJudgeVincent A. De GaetanoJudgeAngelika NußbergerJudgeLinos-Alexandre SicilianosJudgeHelen KellerJudgeAndré PotockiJudgeHelena JäderblomJudgeAleš PejchalJudgeJohannes SilvisJudgeFaris VehabovićJudgeEgidijus KūrisJudgeJohan CallewaertJudgeDeputy Grand Chamber Registrar
Summary
Preparing…

GRAND CHAMBER

CASE OF PERİNÇEK v. SWITZERLAND

(Application no. 27510/08)

JUDGMENT

STRASBOURG

15 October 2015

This judgment is final.

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant

B. The statements in issue

C. The criminal proceedings against the applicant in relation to these statements

D. The 2008 criminal proceedings against the applicant in Turkey

E. Other material submitted by the participants in the proceedings

II. RELEVANT DOMESTIC LAW

A. Constitution of the Swiss Confederation

B. Article 261 bis of the Swiss Criminal Code

C. Other relevant provisions of the Swiss Criminal Code

D. Non-binding motion (postulat) no. 02.3069

E. The Swiss Federal Court Act 2005

III. RELEVANT INTERNATIONAL AND EUROPEAN LAW

A. General international law

B. Relevant Council of Europe instruments and materials

C. Relevant European Union law

IV. COMPARATIVE LAW MATERIALS

THE LAW

I. SCOPE OF THE CASE

II. APPLICATION OF ARTICLE 17 OF THE CONVENTION

A. The Chamber judgment

B. Submissions before the Grand Chamber

C. The Court’s assessment

III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

A. Article 16 of the Convention

B. Justification under Article 10 § 2 of the Convention

(a) The Chamber judgment

(b) Submissions before the Grand Chamber

(i) The parties

(ii) The third-party interveners

(c) The Court’s assessment

(i) General principles

(ii) Application of these principles in the present case

(a) The Chamber judgment

(b) Submissions before the Grand Chamber

(i) The parties

(ii) The third-party interveners

(c) The Court’s assessment

(i) The “prevention of disorder”

(ii) The “protection of the ... rights of others”

(a) The Chamber judgment

(b) Submissions before the Grand Chamber

(i) The parties (α) The applicant

(β) The Swiss Government

(ii) The third-party interveners (α) The Turkish Government

(β) The Armenian Government

(γ) The French Government

(δ) The Switzerland-Armenia Association

(ε) The Federation of Turkish Associations of French-speaking Switzerland

(ζ) The Coordinating Council of the Armenian Organisations in France (CCAF)

(η) The Turkish Human Rights Association, the Truth Justice Memory Centre and the International Institute for Genocide and Human Rights Studies

(θ) The FIDH

(ι) The LICRA

(κ) The Centre for International Protection

(λ) The Group of French and Belgian academics

(c) The Court’s assessment

(i) General principles (α) On the application of the requirement in Article 10 § 2 of the Convention that an interference be “necessary in a democratic society”

(β) On the balancing of Article 10 and Article 8 of the Convention

(ii) Relevant case-law of the Court (α) Group identity and the reputation of ancestors

(β) Calls to violence and “hate speech”

(γ) Denial of the Holocaust and other statements relating to Nazi crimes

(δ) Historical debates

(ε) Cases against Turkey concerning statements relating to the events of 1915 and the following years

(iii) Application of the above principles and case-law in the present case (α) Nature of the applicant’s statements

(β) The context of the interference

The geographical and historical factors

The time factor

(γ) Extent to which the applicant’s statements affected the rights of the members of the Armenian community

(δ) The existence or lack of consensus among the High Contracting Parties

(ε) Could the interference be regarded as required under Switzerland’s international-law obligations?

(ζ) Method employed by the Swiss courts to justify the applicant’s conviction

(η) Severity of the interference

(θ) Balancing the applicant’s right to freedom of expression against the Armenians’ right to respect for their private life

IV. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

B. Costs and expenses

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE NUSSBERGER

Debates on history as part of freedom of expression

Points of dissent with the majority’s approach

Distinction between the Court’s case-law on Holocaust denial and the present case

Procedural violation of Article 10 of the Convention

JOINT DISSENTING OPINION OF JUDGES SPIELMANN, CASADEVALL, BERRO, DE GAETANO, SICILIANOS, SILVIS AND KŪRIS

I. Assessment of the applicant’s statements

II. Impact of geographical and historical factors

III. Impact of the time factor

IV. Lack of consensus

V. Lack of an obligation to criminalise such statements

VI. Balancing of the rights at stake

ADDITIONAL DISSENTING OPINION OF JUDGE SILVIS, JOINED BY JUDGES CASADEVALL, BERRO AND KŪRIS

In the case of Perinçek v. Switzerland,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Dean Spielmann, President,

Josep Casadevall,

Mark Villiger,

Isabelle Berro,

Işıl Karakaş,

Ján Šikuta,

Päivi Hirvelä,

Vincent A. De Gaetano,

Angelika Nußberger,

Linos-Alexandre Sicilianos,

Helen Keller,

André Potocki,

Helena Jäderblom,

Aleš Pejchal,

Johannes Silvis,

Faris Vehabović,

Egidijus Kūris, judges,

and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 28 January and 9 July 2015,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

There appeared before the Court:

(a) for the Swiss Government Mr F. Schürmann, Head of the International Human

Rights Protection Section, Federal Office of Justice,

Federal Police and Justice Department, Agent,

Prof D. Thürer, professor emeritus,

University of Zürich, Counsel,

Mr J. Lindenmann, Deputy Director, Public International

Law Directorate, Federal Department of Foreign Affairs,

Mr A. Scheidegger, Deputy Head of the International

Human Rights Protection Section, Federal Office of Justice,

Federal Police and Justice Department,

Ms C. Ehrich, legal officer, International Human

Rights Protection Section, Federal Office of Justice,

Federal Police and Justice Department, Advisers;

(b) for the applicant Mr M. Cengiz, lawyer,

Prof L. Pech, Professor of European Law,

Middlesex University, Counsel;

(c) for the Turkish Government, third-party intervener Mr E. İşcan, Ambassador, Permanent

Representative of Turkey to the Council of Europe, Agent,

Prof S. Talmon, professor of law,

University of Bonn, Counsel,

Mr A.M. Özmen, Legal Adviser,

Ministry of Foreign Affairs,

Ms H.E. Demircan, Head of Section,

Ministry of Foreign Affairs,

Ms M. Yilmaz, Counsellor, Permanent

Representation of Turkey to the Council of Europe, Advisers;

(d) for the Armenian Government, third-party intervener Mr G. Kostanyan, Prosecutor General, Agent,

Mr A. Tatoyan, Deputy Minister of Justice, Deputy Agent,

Mr G. Robertson QC,

Ms A. Clooney, barrister-at-law, Counsel,

Mr E. Babayan, Deputy Prosecutor General,

Mr T. Collis, Advisers.

The applicant was also present. The Court heard addresses by the applicant, Mr Cengiz, Prof Pech, Mr Schürmann, Prof Thürer, Prof Talmon, Mr Kostanyan, Mr Robertson QC and Ms Clooney.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant

B. The statements in issue

[Translation by the Registry]

“Let me say to European public opinion from Berne and Lausanne: the allegations of the ‘Armenian genocide’ are an international lie. Can an international lie exist? Yes, once Hitler was the master of such lies; now it’s the imperialists of the USA and EU! Documents from not only Turkish but also Russian archives refute these international liars. The documents show that imperialists from the West and from Tsarist Russia were responsible for the situation boiling over between Muslims and Armenians. The Great Powers, which wanted to divide the Ottoman Empire, provoked a section of the Armenians, with whom we had lived in peace for centuries, and incited them to violence. The Turks and Kurds defended their homeland from these attacks. It should not be forgotten that Hitler used the same methods – that is to say, exploiting ethnic groups and communities – to divide up countries for his own imperialistic designs, with peoples killing one another. The lie of the ‘Armenian genocide’ was first invented in 1915 by the imperialists of England, France and Tsarist Russia, who wanted to divide the Ottoman Empire during the First World War. As Chamberlain later admitted, this was war propaganda. ... The USA occupied and divided Iraq with the Gulf Wars between 1991 and 2003, creating a puppet State in the north. They then added the oilfields of Kirkuk to this State. Today, Turkey is required to act as the guardian of this puppet State. We are faced with imperialist encirclement. The lies about the ‘Armenian genocide’ and the pressure linked to the Aegean and Cyprus are interdependent and designed to divide us and take us hostage ... The fact that successive decisions have been taken that even refer to our liberation war as a ‘crime of humanity’ shows that the USA and EU have included the Armenian question among their strategies for Asia and the Middle East ... For their campaign of lies about the ‘Armenian genocide’, the USA and EU have manipulated people with Turkish identity cards. In particular, certain historians have been bought and journalists hired by the American and German secret services to be transported from one conference to another ... Don’t believe the Hitler-style lies such as that of the ‘Armenian genocide’. Seek the truth like Galileo, and stand up for it.”

[Translation by the Registry]

“The Kurdish problem and the Armenian problem were therefore, above all, not a problem and, above all, did not even exist ...”

[Translation by the Registry]

“ ... even Lenin, Stalin and other leaders of the Soviet revolution wrote about the Armenian question. They said in their reports that no genocide of the Armenian people had been carried out by the Turkish authorities. This statement was not intended as propaganda at the time. In secret reports the Soviet leaders said – this is very important – and the Soviet archives confirm that at that time there were occurrences of ethnic conflict, slaughter and massacres between Armenians and Muslims. But Turkey was on the side of those defending their homeland and the Armenians were on the side of the imperialist powers and their instruments ... and we call on Berne, the Swiss National Council and all parties of Switzerland: Please take an interest in the truth and leave these prejudices behind. That is my observation, and I have read every article about the Armenian question and these are merely prejudices. Please leave these prejudices behind and join (??), what he said about these prejudices, and this is the truth: there was no genocide of the Armenians in 1915. It was a battle between peoples and we suffered many casualties ... the Russian officers at the time were very disappointed because the Armenian troops carried out massacres of the Turks and Muslims. These truths were told by a Russian commander ...”

C. The criminal proceedings against the applicant in relation to these statements

“I. The defendant

Doğu Perinçek was born in Gaziantep, Turkey on 17 June 1942. He is a Turkish politician resident in that country. After some ten months’ manual employment in Germany, between 1962 and 1963, he studied law at the University of Ankara and was awarded his doctorate in 1968. He is the founder of an extreme left-wing journal. In 1969, he founded the Revolutionary Worker-Peasant Party of Turkey. Doğu Perinçek can be defined as a left-wing extremist and a follower of Lenin or Mao. He spent several years in prison in the 1980s on account of his political views. He is currently the General Chairman of the Turkish Workers’ Party, which represents 0.5% of the Turkish electorate. Doğu Perinçek describes himself as a cultivated person with a very good knowledge of history. He speaks fluent German.

In his personal life, the defendant is married and the father of four children, three of whom are adults. He states that he earns about CHF 3,000.00 per month. Part of his income comes from royalties and an old-age pension. He also benefits from his wife’s income. He states that his financial situation is healthy. He has never had a criminal conviction in Switzerland. No account will be taken of his criminal convictions in Turkey because, to the Court’s knowledge, they relate to political offences. It may also be noted that the European Court of Human Rights has found against Turkey on two occasions in cases concerning the defendant. He will therefore be treated as a person being prosecuted for the first time.

II. The facts and the law

This case does not, in itself, present any factual problems. To simplify matters, a copy of the committal order made by the cantonal investigating judge on 27 April 2006, which specifies that Doğu Perinçek was committed for trial in this court following an adversarial hearing, and not in absentia, as the indictment indicates, can be appended to this judgment.

On 7 May 2005 in Lausanne, then on 18 September 2005 in Köniz, BE, Doğu Perinçek stated publicly that the Armenian genocide was an international lie. The defendant also acknowledges that on 22 July 2005 he stated in connection with the Armenian genocide that the problem of the Armenians, like that of the Kurds, had never been a problem and that it (the genocide) had never existed (paragraph 2 of the committal order).

There is no dispute as to the facts since Doğu Perinçek admits to denying the Armenian genocide. He therefore comes within the scope of Article 261 bis of the Criminal Code, under which he is charged. Doğu Perinçek acknowledges that massacres took place but justifies them in the name of the laws of war and maintains that the massacres were perpetrated by the Armenian as well as by the Turkish side. He also acknowledges that the Turkish Ottoman Empire moved thousands of Armenians from the borders of Russia towards what are now Syria and Iraq, but denies totally the genocidal nature of these deportations. He maintains that at most these deportations reflected security needs. He has even claimed that the Ottoman troops were acting to protect the Armenians in the conflict between the Ottoman Empire and Russia. Moreover, he has often stated in public that the Armenians, or at least some of them, were traitors, as they were allied to the Russians against the troops of the Empire. The defendant has received varying degrees of support for his opinions from the historians whom he called to give evidence to the court. The historians called by the civil party have disagreed totally with him. In this context, it should be noted that in response to Doğu Perinçek’s comments, the Switzerland-Armenia Association filed a complaint against him on 15 July 2005. The association’s civil-party claims will be considered later.

Like the parties, the Court recognises that denying the existence of a massacre as such, however large-scale, is not in itself covered by Article 261 bis of the Criminal Code. As the law clearly states, it has to concern a genocide as defined by, for example, the International Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute. In its submissions, the defence maintained that when it drew up Article 261 bis of the Criminal Code, Parliament only had in mind the genocide of the Jews in the Second World War. The defence also argued that to be entitled to the protection of Article 261 bis, a genocide must necessarily be recognised as such by an international court of justice. It stressed that the Armenian genocide had not been universally recognised, in particular not by Turkey, and that certain historians shared Doğu Perinçek’s opinions. It concluded, firstly, that as the situation was unclear and, secondly and above all, that as the genocide of the Armenians had not been recognised by an international court of justice, Doğu Perinçek’s denial of the Armenian genocide could not come within the scope of Article 261 bis of the Criminal Code. It told the Court that the latter could not act as historian and noted in that particular regard that it had made an interlocutory application during the hearing for the Court to establish a neutral committee of historians to investigate whether or not the 1915-17 massacres had constituted a genocide.

The civil party and the prosecution contend that it is a sufficient and necessary condition that a genocide be widely recognised and that it is for the Court to take formal note of this international recognition. It does not have to transform itself into a self-taught historian. The courts rule on the facts and the law. The civil party and the prosecution consider that the Armenian genocide is a well-known fact, whether or not it has been recognised by an international court of justice. The opposing parties at least agree on one point, namely that it is not for the Court to write history. The Court is of the same opinion as all the parties. There will not therefore be any gaps in this judgment if it does not refer to the views of the historians who have given evidence to the Court or to the exhibits produced by the civil party or the defence.

The first question that has to be asked is therefore whether the genocides acknowledged by Swiss criminal law are confined to those recognised by an international court of justice. The Court has several means at its disposal for answering this question. From the standpoint of a literal interpretation, Article 261 bis of the Criminal Code refers only to genocide. It does not, for example, refer to ‘a genocide recognised by an international court of justice’. Nor does it specify ‘the genocide of the Jews, to the exclusion of the genocide of the Armenians’. Is this an omission of Parliament?

The historical interpretation that is also available to the Court provides the answer. According to the Official Gazette of the National Council, the legislators referred explicitly to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and quoted, by way of example, the genocide of the Kurds and the Armenians (BO/CN [Official Gazette/National Council] 1993, p. 1076). From a historical standpoint, therefore, it can be inferred that Parliament took the Armenian genocide as an example when drafting Article 261 bis of the Criminal Code (Comby report). It must therefore be recognised that the legislators did not simply have the genocide of the Jews in mind when they drew up Article 261 bis.

By referring explicitly to the genocide of the Armenians and the Kurds, Parliament also wished to show that it was not necessary for the genocide to be recognised by an international court of justice. As noted, there was an explicit reference to the Convention against Genocide of 9 December 1948. Legal theorists support this view. For example, according to Corboz (Bernard Corboz, Les infractions en droit Suisse, vol. II, p. 304), the genocide must be established. It can be inferred from this statement that it is necessary and sufficient for the genocide to be recognised, without necessarily having been granted recognition by an international court or any other supranational body likely to be binding on the courts (an example might be a commission of historians with internationally acknowledged expertise). According to Trechsel (Stefan Trechsel, Kurzkommentar, ad Article 261 bis no. 35), in the context of genocide denial, German legal theory openly acknowledges the ‘Auschwitz lie’, but the denial of another genocide is also covered by Article 261 bis of the Criminal Code.

In his thesis, Guyaz reaches the same conclusion (Alexandre Guyaz, L’incrimination de la discrimination raciale, thesis, Lausanne, 1996, p. 300). The following extract may be cited:

‘Criminal law embodies here a broader approach to revisionism, since Article 261 bis § 4 is not confined to denial of crimes against humanity committed by the National Socialist regime. This wide scope has been confirmed unequivocally by the National Council, which, at second reading, amended the French text by replacing the term “the genocide” with “a genocide”, thereby alluding to all genocides that might unfortunately take place.’

It is therefore both necessary and sufficient for a genocide to have taken place. But this genocide must be known and recognised: Corboz refers to an established genocide (Corboz, op. cit.).

What then of the situation in our country?

With regard to Switzerland, the Court notes that the National Council has approved a non-binding parliamentary motion [postulat] recognising the genocide (the de Buman motion). The motion was approved on 16 December 2003. As noted earlier, the Armenian genocide served as a basis for the drafting of Article 261 bis of the Criminal Code (Comby report). The parliamentary motion was approved against the advice of the Federal Council, which apparently considered that the matter should be the preserve of historians. Yet it was this same Federal Council that expressly cited the Armenian genocide in its dispatch of 31 March 1999 on the Convention on the Prevention and Punishment of the Crime of Genocide, which was to serve as the basis of the current Article 264 of the Criminal Code criminalising genocide (Feuille fédérale [FF – Federal Gazette], 1999, pp. 4911 et seq.). The University of Lausanne has used the Armenian genocide as an example in a published work on humanitarian law. School history textbooks deal with the genocide of the Armenians. It may also be pointed out that the governments of Vaud and Geneva have recognised the Armenian genocide: on 5 July 2005 for the Canton of Vaud and on 25 June 1998 for the Republic and Canton of Geneva, whose President was Micheline Calmy-Rey, our current Minister for Foreign Affairs. This rapid overview enables the Court to conclude that the Armenian genocide is an established historical fact according to Swiss public opinion. The current position of the Federal Council, characterised by extreme caution when it is not inconsistent, changes absolutely nothing. It is easy to understand why a government prefers not to become involved in particularly sensitive issues. The international repercussions which this case has had are noteworthy.

Looking beyond our frontiers, several countries, including France, have recognised the Armenian genocide. To take just the example of France, according to Yves Ternon, the Law of 29 January 2001 was based on the opinion of a group of some one hundred historians. In item 15 of the defence’s list no. I, Jean-Baptiste Racine, in his book on the Armenian genocide, says that States’ recognition has often been in response to initiatives taken by the academic community. These decisions are not, therefore, taken lightly, particularly since recognition of the Armenian genocide can adversely affect an individual country’s relations with Turkey.

The Armenian genocide has also been recognised by international bodies. Admittedly, it has received very little prominence in the United Nations. The only really significant reference to the event is in the Whitaker report (Jean-Baptiste Racine, op cit., p. 73, item 96). The European Parliament, on the other hand, first started to consider the Armenian issue in 1981. The relevant committee rapporteur, whose report, according to Jean-Baptiste Racine, was meticulously argued and documented, said that:

‘The events of which the Armenians of Turkey were victims during the war years of 1915-17 must be considered a genocide according to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.’

On 18 June 1987, the European Parliament finally adopted a resolution recognising the Armenian genocide.

This genocide has also been recognised by the Council of Europe. For information, the Council of Europe has some fifty member States. It is dedicated to defending the values of democracy and human rights. Its headquarters in Strasbourg is also the seat of the European Court of Human Rights, which is responsible for applying the 1950 Convention of the same name (on all these matters, see Jean-Baptiste Racine, op. cit. pp. 66 et seq.).

It must therefore be acknowledged that the Armenian genocide is an established historical fact.

It then has to be asked whether Doğu Perinçek acted intentionally. This amounts to asking whether he could have believed, in good faith, that he was not acting wrongfully, in other words that he was not denying the obvious when stating, on no fewer than three occasions, that the Armenian genocide had not existed, and that it was an ‘international lie’.

Doğu Perinçek has acknowledged during the investigation and at the trial that he knew that Switzerland, like many other countries, recognised the Armenian genocide. Moreover, he would never have described it as an ‘international lie’ if he had not known that the international community did indeed consider these events to be a genocide. He even stated that he considered the Swiss law to be unconstitutional.

The defendant is a doctor of laws. He is a politician. He describes himself as a writer and historian. He is aware of the arguments of those who disagree with him. He has quite simply chosen to ignore them and proclaim that the Armenian genocide never took place. Doğu Perinçek cannot therefore claim, or believe, that the genocide did not exist. Moreover, as the Public Prosecutor stated in his address, Doğu Perinçek has formally 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. It can be concluded, without question, that for the defendant genocide denial is, if not an article of faith, at least a political slogan with distinct nationalist overtones.

Legal theory is unanimous in considering that there has to be a racist motive. It is clear that Doğu Perinçek’s motives appear to be racist and nationalistic. This is a very long way from historical debate. As noted by the prosecution, Doğu Perinçek speaks of an imperialist plot to undermine Turkey’s greatness. To justify the massacres, he resorts to the laws of war. He has described the Armenians as being the aggressors of the Turkish people. He is a follower of Talaat Pasha – the defendant is a member of the eponymous committee – who, together with his two brothers, was historically the initiator, instigator and driving force of the Armenian genocide.

Doğu Perinçek meets all the subjective and objective conditions required by Article 261 bis of the Criminal Code.

He must be found guilty of racial discrimination.

III. The penalty

Doğu Perinçek appears to be an intelligent and cultivated person, which makes his stubbornness all the less understandable. He is a provocateur. He has displayed a certain arrogance towards the Court in particular, and towards Swiss laws in general. He is unable to adduce any attenuating circumstances. There are multiple offences because the defendant has discriminated against the Armenian people, by denying their tragic history, on three occasions in three different places. His mode of action amounts to that of an agitator. The terms used, such as ‘international lie’, are particularly virulent. Under these circumstances, the Court agrees with the prosecution that a sentence of ninety days is an appropriate penalty for the conduct of the defendant.

In his address, the Public Prosecutor proposed that the day-fine be set at CHF 100.00. It was noted in the section on personal information that Doğu Perinçek’s financial situation was healthy. CHF 3,000.00 is undoubtedly a good salary in Turkey. The defendant was able to entrust his defence to counsel of his choice. He travelled from Turkey to Switzerland and during the several days of the trial stayed in the Beau-Rivage Palace (p. 61). All this reveals a certain measure of affluence and the proposed sum of CHF 100.00 is far from excessive.

Under the law as it formerly stood, the Court would have been unable to make a favourable assessment of Doğu Perinçek’s future conduct. Nowadays, suspended terms of imprisonment are the norm, in the absence of any particularly unfavourable circumstances, which is not the case here. Doğu Perinçek is a foreigner in our country. He will return to his own land. He was formally warned by the Court that if he persisted in denying the Armenian genocide he could be liable to another criminal investigation and risk a further conviction with the possibility, crucially, of the suspension of his sentence being revoked. It considers that this threat should alone be sufficient to deter the defendant from reoffending, so the fine that it orders to be paid will be accompanied by a suspended term of imprisonment. He will be given a substitute fine of CHF 3,000.00 as a significant immediate penalty, the equivalent of thirty days’ imprisonment.

IV. Civil law claims and costs

The Switzerland-Armenia Association, through its counsel, seeks CHF 10,000.00 in compensation for non-pecuniary damage and the same sum for costs incurred in the criminal proceedings. In accordance with its articles of association and the law (Article 49 of the Code of Obligations) the Switzerland-Armenia Association is entitled to claim compensation for non-pecuniary damage. It is difficult to award an association compensation of this sort because, by definition, legal entities are devoid of feelings. The Court will therefore confine itself to awarding a token sum of CHF 1,000.00 as compensation.

The case was sufficiently complex to justify the involvement of counsel. In view of the amount of work performed by this professional officer, the Court will award a sum of CHF 10,000.00 to the civil party as a contribution to its counsel’s fees. It is not appropriate to award these sums personally to Sarkis Shahinian, who is the association’s representative.

Doğu Perinçek will meet all the costs of the case.”

“C. Doğu Perinçek has duly appealed against the original judgment. As his main submission, he has appealed on grounds of nullity and applied to have additional investigative measures taken with a view to establishing the current state of research and the position of historians on the Armenian question. In the alternative, he has lodged an ordinary appeal, seeking to have the judgment varied so as to clear him of the charge of racial discrimination under Article 261 bis § 4, second sentence, of the Criminal Code, exempt him from paying costs and discharge him of any obligation to pay the complainant and the civil party compensation or criminal costs.

The Switzerland-Armenia Association, which had also appealed, has withdrawn its appeal and has now filed a memorial.

The law

In support of his grounds of nullity, the appellant alleges a violation of Article 411, letters (f), (g), (h) and (i) of the Code of Criminal Procedure. These provisions concern grounds of nullity that justify setting the decision aside only if the irregularity found has influenced or could influence the judgment (Bersier, op. cit., p. 78). Normal practice is for the ordinary grounds of appeal to be examined before the related grounds of nullity (Bovay, Dupuis, Moreillon, Piguet, Procédure pénale vaudoise, Code annoté, Lausanne, 2004, no. 1.4. ad Article 411).

The grounds of nullity raised by the appellant mainly concern factual matters that must only be considered if they are relevant to the legal outcome. In this particular case, the Court should first consider the ordinary grounds of appeal, namely the meaning and scope of Article 261 bis of the Criminal Code, and determine whether, in this particular context, the lower court may, exceptionally, make a historical judgment (see Chaix and Bertossa, “La répression de la discrimination raciale: Loi d’exception?” in SJ 2002, p. 177, esp. p. 184).

I. Ordinary appeal

(b) According to Article 261 bis § 4 of the Criminal Code, an offence is committed by 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. Article 261 bis of the Criminal Code enshrines in domestic law the undertakings entered into by Switzerland when it signed the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (CERD), which came into force on 29 December 1994 (RS [Recueil systématique – Compendium of Federal Law] 0.104; Favre, Pellet, Stoudmann, Code pénal annoté, 2nd edition, Lausanne, 2004, no. 1.1. ad Article 261 bis of the Criminal Code). The fact that Article 261 bis of the Criminal Code is based on a convention reflects the current trend to incorporate the provisions of international treaties into domestic law. However, what sets the anti-racist legislation apart is the fact that the national parliament decided that, in the case of genocide and other crimes against humanity, the law should go beyond the minimum standards set by the CERD (Chaix and Bertossa, op. cit., esp. p. 179).

(c) The notion of genocide is now defined by Article 264 of the Criminal Code. Courts responsible for applying Article 261 bis § 4 of the Criminal Code must be guided by this definition, derived from the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948. However, their task is to punish not the genocide in question but persons who deny its existence (Chaix et Bertossa, op. cit., esp. p. 183). In connection with the scope of the notion of genocide, several writers note that the Federal Council’s memorandum only refers to the genocide of the Jews during the Second World War (FF 1992 III 308; Chaix and Bertossa, op. cit., esp. p. 183). However, Parliament has clearly incorporated a broader concept of revisionism into Article 261 bis § 4 of the Criminal Code that is not confined to the denial of crimes against humanity committed by the National Socialist regime. This extended scope was unequivocally confirmed by the National Council, which, on second reading, corrected the French text by replacing the words ‘the genocide’ with ‘a genocide’ (Guyaz, L’incrimination de la discrimination raciale, thesis, Lausanne, 1996, p. 300). Parliament justified this change by arguing that the legislation must apply to all cases of genocide that might unfortunately take place, and citing as an example the massacre of the Armenians (BO/CN 1993, p. 1076).

Historically, therefore, Parliament did not intend to restrict the application of Article 261 bis § 4 of the Criminal Code to the genocide of the Jews. By accepting the change to the wording, it indicated that it should apply to all genocides, in particular that of the Armenians.

In the case of the Armenian genocide, therefore, the courts are not required to rely on the work of historians to acknowledge its existence, since this particular case is specifically covered by the legislation and the intentions of those who enacted it, on the same basis as the genocide of the Jews in the Second World War. It must therefore be recognised that the Armenian genocide is deemed to be an established fact.

(d) In this case, the lower court stated explicitly that it did not intend to act as a historian, even though it did wander into this territory by attempting to assess the general opinion of institutions in Switzerland and abroad on this subject. It was unnecessary for it to do so since all that counts is the will of Parliament, which stated clearly in the preparatory debates that the wording of Article 261 bis of the Criminal Code covered the Armenian genocide. It is therefore wrong for the appellant to state, with reference to the Federal Council’s memorandum (FF 1992 III 308), that it is not established that the wording of Article 261 bis of the Criminal Code was such as to include the Armenian genocide. Nor is the case-law of the Federal Court decisive since every case so far where the subject has arisen has concerned the Jews of the Second World War and associated revisionism. In the final analysis, since the Armenian genocide is acknowledged by Parliament itself to be an established fact, there is nothing exceptional about this case that would call for additional investigative measures and a historical approach to assess whether a genocide had taken place.

The ground of appeal based on the meaning and scope of the notion of genocide must be dismissed as ill-founded.

(b) In this case, the appellant tries to explain the positions he holds in terms of the debate between historians, which necessitates respect for freedom of expression. He also maintains that he has simply denied that the events in question constituted genocide, without ever disputing the existence of massacres and deportations of Armenians, which he justifies by the laws of war. This argument relates to the subjective aspect of the offence, but is vitiated by the fact that he coupled the term genocide with that of ‘international lie’, which the lower court described as particularly virulent. It should be noted in this regard that the statements in question were made at public meetings with strong nationalist overtones that bore little relation to serious historical debates devoid of racist prejudices. On these occasions, the accused, who describes himself as a writer and historian, quite simply dismissed his opponents’ arguments and announced that the Armenian genocide had never existed. The appellant, who is aware of the widespread acceptance of this proposition, was merely seeking to make a political rather than a historical point, as he claimed, and it was not by chance that these statements were made at meetings to commemorate the 1923 Treaty of Lausanne. This Court must therefore agree with the lower court’s finding that the motives of the accused were racist and nationalistic.

In the final analysis, the objection is not just to his rejection of the use of the term genocide but also to the way it was expressed and the associated texts cited, all of which mean that Doğu Perinçek explicitly and intentionally denied a historical fact regarded as established, namely the Armenian genocide, and did so on several occasions without displaying any inclination to alter his point of view.

This ground must be dismissed as ill-founded.

(b) Under Article 49 § 1 of the Code of Obligations, any person whose personality rights have been illegally violated can claim financial compensation for non-pecuniary damage, if this is justified by the severity of the violation and the perpetrator has not provided an alternative form of satisfaction. Pursuant to this Article, the violation must be in excess of what a person should normally bear, from the standpoint of the length or the intensity of the suffering caused (Bucher, Personnes physiques et protection de la personnalité, 4th edition, Basel, Geneva, Munich 1999, no. 603, p. 141; Tercier. op. cit., nos. 2047 et seq., pp. 270 et seq.; Deschenaux and Tercier, op. cit., nos. 24 et seq., p. 93). The amount of the compensation depends mainly on the severity of the violation – or, more specifically, on the severity of the physical or psychological suffering caused by the violation – and the likelihood that the payment of a sum of money will significantly reduce the resulting non-pecuniary damage (ATF 125 III 269, point 2a; ATF 118 II 410, point 2a). The courts have discretion to determine the level of compensation. By its very nature, compensation for non-pecuniary injury, to which a simple monetary value can only be ascribed with great difficulty, cannot be determined by reference to mathematical criteria, to ensure that the assessed amount does not exceed a certain level; however, the compensation awarded must be equitable. The relevant court will therefore ensure that the amount reflects the severity of the damage suffered and that the sum awarded does not appear derisory to the victim (ATF 125 III 269, cited above; ATF 118 II 410, cited above).

The level of compensation for non-pecuniary damage is a matter for federal law, and one which this Court is therefore free to examine (Article 415 §§ 1 and 3 and Article 447 § 1 of the Code of Criminal Procedure). Since the outcome is to a large extent dependent on an assessment of the circumstances, the appeal court must only intervene with restraint, in particular when the lower court has misused its discretion by basing its decision on considerations that are unrelated to the applicable provision, by failing to take account of relevant information or by setting a level of compensation that is inequitable because it is manifestly too low or too high (ATF 125 III 269, cited above; ATF 118 II 410, cited above). However, since this is a question of equity – and not one of exercise of discretion in the strict sense of the term, which would limit its power of review to abuse or excess of discretion – the appeal court is free to decide whether the sum awarded takes sufficient account of the severity of the violation or whether it is disproportionate to the intensity of the non-pecuniary damage suffered by the victim (ATF 125 III 269, cited above; ATF 123 III 10, point 4c/aa; ATF 118 II 410, cited above).

(c) In this case, the appellant was found guilty of racial discrimination, for which he therefore incurs civil liability. The lower court considered that it was difficult to award an association compensation of the order of CHF 10,000 for non-pecuniary damage because, by definition, legal entities are devoid of feelings. It therefore reduced the complainant’s claim and awarded it a symbolic sum of CHF 1,000 in compensation. This assessment is not arbitrary and the sum awarded is appropriate.

This ground, and the entire ordinary appeal, must be dismissed as ill-founded.

(b) The complainant is a civil party as a matter of law (Article 94 of the Code of Criminal Procedure). The costs which civil parties may claim under Article 97 of the Code of Criminal Procedure are awarded according to the principle laid down in Article 163 § 2 of the [Code], which provides that the rules relating to expenses are applicable by analogy. The right to costs is enshrined in the cantonal procedural legislation. According to the case-law, civil parties are, in principle, only eligible for costs if the accused has received a sentence or been ordered to pay damages (JT 1961 III 9). The lower court has discretion to set the level of the costs payable to the civil party, and the Court of Cassation only intervenes in this decision in the event of a manifestly incorrect application of the law or a misuse of discretion, particularly regarding the level of the costs awarded (JT 1965 III 81).

(c) In this particular case, an examination of the case file shows that all the necessary conditions were met for the award of costs for criminal expenses incurred. The lower court noted that the case was sufficiently complex to justify the presence of a lawyer and awarded the Switzerland-Armenia Association CHF 10,000 towards its criminal costs. In view of the amount of work performed by the lawyer, the court did not exceed its discretion. This ground, and the entire appeal on points of law, must be dismissed as ill-founded.

II. Appeal on grounds of nullity

These grounds must be dismissed since they are solely concerned with questions of fact whose resolution would not be likely to influence the judgment (Bersier, op. cit., p. 78). It is not necessary for the courts to act as historians on the question of the Armenian genocide, since the parliamentary debates show that its existence is considered to be established (see point 2 (c) above).

The appeal on grounds of nullity must be dismissed as ill-founded.

Given the outcome of the appeal, the appellant shall pay the costs at second instance.”

“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’) makes no explicit reference to any specific historical event. The law therefore does not preclude punishment of the 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 0.104). The wording initially proposed in the Bill tabled by the Federal Council did not refer specifically to genocide denial (see FF 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., esp. 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 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 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’ 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, Weder, Schweizerisches Strafgesetzbuch, Kommentar (ed. Donatsch), Zürich, 2006, Article 261 bis § 4, p. 327; Chaix and 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, notes 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 and 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 Niggli, Rassendiskriminierung, notes 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 appellant], 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 6 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).

D. The 2008 criminal proceedings against the applicant in Turkey

E. Other material submitted by the participants in the proceedings

II. RELEVANT DOMESTIC LAW

A. Constitution of the Swiss Confederation

“Human dignity must be respected and protected.”
“1. Freedom of expression and of information is guaranteed.
“1. Restrictions on fundamental rights must have a legal basis. Significant restrictions must have their basis in a federal act. The foregoing does not apply in cases of serious and immediate danger where no other course of action is possible.

B. Article 261 bis of the Swiss Criminal Code

“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.”

“[A]ny person who publicly violates the human dignity of another person or a group of persons on the grounds of their race, ethnic origin or religion, whether through words, written material, images, gestures, acts of aggression or other means, or any person who on the same grounds dishonours the memory of a deceased person ... shall be punishable by a term of imprisonment or a fine.”
“[D]ishonouring the memory of a deceased person has been included in the definition of the offence as a means of countering the historical falsifications of revisionists whose pseudo-scientific works disseminate theories known as ‘the Auschwitz lie’, which claims that the Holocaust never took place and the gas chambers did not exist. It maintains that far fewer than six million Jews were killed and that, besides, the Jews draw economic and financial benefits from the Holocaust. This falsification of history cannot be considered a mere quarrel between historians. It often conceals a form of racist propaganda that is particularly dangerous when aimed at young persons during their education.”
“The committee has considered the various points of difference between the Council of States and the National Council and has finally proposed that you ... adopt the amendments put forward by the Council of States, with the exception of the fourth paragraph, concerning genocide, where the committee proposes using the term ‘a genocide’, by way of reference to any genocide that might unfortunately take place. Several speakers have referred to the massacres of Kurds [specifically, those committed by the former Iraqi regime] or other groups of the population, such as the Armenians. All these examples of genocide have to be covered.

As regards the criteria to be taken into account, ... there exists the United Nations Convention for the Prevention and Punishment of the Crime of Genocide. It is necessary to refer to this international convention for the definition of the notion of genocide.”

“The issue of what constitutes genocide was also discussed. It was stated that a Turkish citizen would probably not use the term genocide to define the dramatic events concerning the Armenian people. The committee considered that by using the general term ‘genocide’, genocide as a whole, rather than ‘the’ or ‘a’ particular genocide, has to become punishable everywhere, for example also in Bosnia and Herzegovina. When a people is not only denied its right to exist but is also effectively driven towards extinction, this constitutes genocide and has to be a criminal offence.”

C. Other relevant provisions of the Swiss Criminal Code

“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.”

D. Non-binding motion (postulat) no. 02.3069

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

E. The Swiss Federal Court Act 2005

III. RELEVANT INTERNATIONAL AND EUROPEAN LAW

A. General international law

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 III

“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 V

“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 VI

“Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”

...

Article IX

“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”

“...

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.
“557. The ‘direct’ element of incitement implies that the incitement assume a direct form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement. Under Civil law systems, provocation, the equivalent of incitement, is regarded as being direct where it is aimed at causing a specific offence to be committed. The prosecution must prove a definite causation between the act characterized as incitement, or provocation in this case, and a specific offence. However, the Chamber is of the opinion that the direct element of incitement should be viewed in the light of its cultural and linguistic content. Indeed, a particular speech may be perceived as ‘direct’ in one country, and not so in another, depending on the audience. The Chamber further recalls that incitement may be direct, and nonetheless implicit. Thus, at the time the Convention on Genocide was being drafted, the Polish delegate observed that it was sufficient to play skilfully on mob psychology by casting suspicion on certain groups, by insinuating that they were responsible for economic or other difficulties in order to create an atmosphere favourable to the perpetration of the crime.
“692. The Appeals Chamber considers that there is a difference between hate speech in general (or inciting discrimination or violence) and direct and public incitement to commit genocide. Direct incitement to commit genocide assumes that the speech is a direct appeal to commit an act [of genocide]; it has to be more than a mere vague or indirect suggestion. In most cases, direct and public incitement to commit genocide can be preceded or accompanied by hate speech, but only direct and public incitement to commit genocide is prohibited [as constituting direct and public incitement to commit genocide]. This conclusion is corroborated by the travaux préparatoires to the Genocide Convention.
“(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 1

“1. In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

...”

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:

...

(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;

...”

Article 4

“States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia :

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

...”

Article 5

“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

...

(d) Other civil rights, in particular:

...

(viii) The right to freedom of opinion and expression;

...”

Article 6

“States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”
“Switzerland reserves the right to take the legislative measures necessary for the implementation of article 4, taking due account of freedom of opinion and freedom of association, provided for inter alia in the Universal Declaration of Human Rights.”
“[P]ublic denials or attempts to justify crimes of genocide and crimes against humanity, as defined by international law, should be declared as offences punishable by law, provided that they clearly constitute incitement to racial violence or hatred. The Committee also underlines that ‘the expression of opinions about historical facts’ should not be prohibited or punished.

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.
“Switzerland reserves the right to adopt a criminal provision which will take into account the requirements of article 20, paragraph 2, on the occasion of its forthcoming accession to the 1966 International Convention on the Elimination of All Forms of Racial Discrimination.”

“Freedom of opinion

Freedom of expression

...

The application of article 19 (3)

...

...

...

Limitative scope of restrictions on freedom of expression in certain specific areas

...

The relationship between articles 19 and 20

“[H]istorical events should be open to discussion and, as stated by the Human Rights Committee, laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the International Covenant on Civil and Political Rights imposes on States parties in relation to the respect for freedom of opinion and expression. By demanding that writers, journalists and citizens give only a version of events that is approved by the Government, States are enabled to subjugate freedom of expression to official versions of events”.

B. Relevant Council of Europe instruments and materials

“1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right:

distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party.

(a) require that the denial or the gross minimisation referred to in paragraph 1 of this article is committed with the intent to incite hatred, discrimination or violence against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors, or otherwise

(b) reserve the right not to apply, in whole or in part, paragraph 1 of this article.”

“39. In recent years, various cases have been dealt with by national courts where persons (in public, in the media, etc.) have expressed ideas or theories which aim at denying, grossly minimising, approving or justifying the serious crimes which occurred in particular during the second World War (in particular the Holocaust).The motivation for such behaviours is often presented with the pretext of scientific research, while they really aim at supporting and promoting the political motivation which gave rise to the Holocaust. Moreover, these behaviours have also inspired or, even, stimulated and encouraged, racist and xenophobic groups in their action, including through computer systems. The expression of such ideas insults (the memory of) those persons who have been victims of such evil, as well as their relatives. Finally, it threatens the dignity of the human community.
“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:

Principle 2

“The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.

To this end, governments of member states should examine ways and means to:

Principle 3

“The governments of the member states should ensure that in the legal framework referred to in Principle 2, interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of, or interference with, freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.”

Principle 4

“National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.”

Principle 5

“National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect’s right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.”
“83. ... It is difficult to ascertain the sizes of the various minority groups living in Turkey at present, as the most recent publicly available official estimates date from 2000 and do not cover all relevant groups. ... According to [these estimates], the Armenian population in Turkey is estimated at between 50,000 and 93,500 persons ...

...

...

...

...

C. Relevant European Union law

“...

(6) Member States acknowledge that combating racism and xenophobia requires various kinds of measures in a comprehensive framework and may not be limited to criminal matters. This Framework Decision is limited to combating particularly serious forms of racism and xenophobia by means of criminal law. Since the Member States’ cultural and legal traditions are, to some extent, different, particularly in this field, full harmonisation of criminal laws is currently not possible.

...

(14) This Framework Decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Articles 10 and 11 thereof, and reflected in the Charter of Fundamental Rights of the European Union, and notably Chapters II and VI thereof.

(15) Considerations relating to freedom of association and freedom of expression, in particular freedom of the press and freedom of expression in other media have led in many Member States to procedural guarantees and to special rules in national law as to the determination or limitation of liability.

...”

“1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable:

...

(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.

...

IV. COMPARATIVE LAW MATERIALS

“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.”

“France publicly recognises the Armenian genocide of 1915.”

“...

DECIDES:

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

...”

THE LAW

I. SCOPE OF THE CASE

II. APPLICATION OF ARTICLE 17 OF THE CONVENTION

“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.”

A. The Chamber judgment

B. Submissions before the Grand Chamber

C. The Court’s assessment

III. 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. ...

A. Article 16 of the Convention

“Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.”

B. Justification under Article 10 § 2 of the Convention

(a) The Chamber judgment

(b) Submissions before the Grand Chamber

(i) The parties

(ii) The third-party interveners

(c) The Court’s assessment

(i) General principles

(ii) Application of these principles in the present case

(a) The Chamber judgment

(b) Submissions before the Grand Chamber

(i) The parties

(ii) The third-party interveners

(c) The Court’s assessment

(i) The “prevention of disorder”

(ii) The “protection of the ... rights of others”

(a) The Chamber judgment

(b) Submissions before the Grand Chamber

(i) The parties

(α) The applicant

(β) The Swiss Government

(ii) The third-party interveners

(α) The Turkish Government

(β) The Armenian Government

(γ) The French Government

(δ) The Switzerland-Armenia Association

(ε) The Federation of Turkish Associations of French-speaking Switzerland

(ζ) The Coordinating Council of the Armenian Organisations in France (CCAF)

(η) The Turkish Human Rights Association, the Truth Justice Memory Centre and the International Institute for Genocide and Human Rights Studies

(θ) The FIDH

(ι) The LICRA

(κ) The Centre for International Protection

(λ) The Group of French and Belgian academics

(c) The Court’s assessment

(i) General principles (α) On the application of the requirement in Article 10 § 2 of the Convention that an interference be “necessary in a democratic society”

(i) Freedom of expression is 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 Article 10 § 2, it applies 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, but these must be construed strictly, and the need for any restrictions must be established convincingly.

(ii) The adjective “necessary” in Article 10 § 2 implies the existence of a pressing social need. The High Contracting Parties have a margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the law and the decisions that apply it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” can be reconciled with freedom of expression.

(iii) The Court’s task is not to take the place of the competent national authorities but to review the decisions that they made under Article 10. This does not mean that the Court’s supervision is limited to ascertaining whether these authorities exercised their discretion reasonably, carefully and in good faith. The Court must rather examine the interference 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 were relevant and sufficient. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts.

(β) On the balancing of Article 10 and Article 8 of the Convention

(i) In such cases, the outcome should not vary depending on whether the application was brought under Article 8 by the person who was the subject of the statement or under Article 10 by the person who has made it, because in principle the rights under these Articles deserve equal respect.

(ii) The choice of the means to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the High Contracting Party’s margin of appreciation, whether the obligations on it are positive or negative. There are different ways of ensuring respect for private life and the nature of the obligation will depend on the particular aspect of private life that is in issue.

(iii) Likewise, under Article 10 of the Convention, the High Contracting Parties have a margin of appreciation in assessing whether and to what extent an interference with the right to freedom of expression is necessary.

(iv) The margin of appreciation, however, goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. In exercising its supervisory function, the Court does not have to take the place of the national courts but to review, in the light of the case as a whole, whether their decisions were compatible with the provisions of the Convention relied on.

(v) If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for theirs.

(ii) Relevant case-law of the Court

(α) Group identity and the reputation of ancestors

(β) Calls to violence and “hate speech”

(γ) Denial of the Holocaust and other statements relating to Nazi crimes

(δ) Historical debates

(ε) Cases against Turkey concerning statements relating to the events of 1915 and the following years

(iii) Application of the above principles and case-law in the present case

(α) Nature of the applicant’s statements

(β) The context of the interference

The geographical and historical factors

The time factor

(γ) Extent to which the applicant’s statements affected the rights of the members of the Armenian community

(δ) The existence or lack of consensus among the High Contracting Parties

(ε) Could the interference be regarded as required under Switzerland’s international-law obligations?

(ζ) Method employed by the Swiss courts to justify the applicant’s conviction

(η) Severity of the interference

(θ) Balancing the applicant’s right to freedom of expression against the Armenians’ right to respect for their private life

IV. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ...”

V. 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 English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 15 October 2015.

Johan Callewaert Dean Spielmann

Deputy 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) partly concurring and partly dissenting opinion of Judge Nußberger;

(b) joint dissenting opinion of Judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris;

(c) additional dissenting opinion of Judge Silvis, joined by Judges Casadevall, Berro and Kūris. D.S.

J.C.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE NUSSBERGER

Debates on history as part of freedom of expression

Assessing, evaluating and commenting on historical events are prerequisites for living peacefully together in society, being conscious of what has happened in the past and assuming responsibility where necessary. There is not one historical truth that could remain permanently immutable. On the contrary, new research and new discoveries of documents and evidence may shed new light on what has been deemed to be an uncontested view. Therefore, debate and discussion about history is an essential part of freedom of expression and should in principle never be curtailed in a democratic society, especially not by defining taboos on what events have to be excluded from free assessment in public debate or by establishing certain “official views” that must not be contested.

Nevertheless, limits may be necessary if debate on history degenerates into the incitement of hatred against a specific group and is used exclusively in order to attack the dignity of others and to violate their most intimate feelings. The most famous example is Holocaust denial, which has been made a criminal offence in several jurisdictions (compare, for instance, the legislation in Germany, Austria and Belgium as outlined in paragraph 91 of the judgment). Such measures have been generally accepted in the Court’s case-law (see paragraphs 209-12 of the present judgment).

Seen against this background the finding of a violation in the present case raises important questions concerning the consistency of the Court’s case-law. Why should criminal sanctions for denial of the characterisation of the massacres of Armenians in Turkey in 1915 as “genocide” constitute a violation of freedom of expression, whereas criminal sanctions for Holocaust denial have been deemed compatible with the Convention?

Points of dissent with the majority’s approach

I have voted in favour of finding a violation in this case. But concerning the crucial question of the distinction between Holocaust denial and denial of the genocide of the Armenian people in 1915, I can accept neither the answer given by the majority of the Chamber (see paragraph 117 of the Chamber judgment) nor the answer given by the majority of the Grand Chamber (see paragraphs 242-43 of the present judgment).

I do not agree that there has been a substantive violation of freedom of expression in the present case. In my view there has only been a procedural violation, which is due to the lack of legal certainty and the lack of balancing of the rights involved (compare, as examples of procedural violations of Article 10 of the Convention, Association Ekin v. France, no. 39288/98, § 58, ECHR 2001-VIII, and Lombardi Vallauri v. Italy, no. 39128/05, § 46, 20 October 2009). The conflict between the applicant’s freedom to doubt the veracity of what is considered to be the “historical truth” and the protection of the Armenians’ sense of their historical identity and their feelings should have been resolved in a clear and foreseeable way by the Swiss legislation. Article 261 bis § 4 of the Criminal Code, however, fails to do so. And the Swiss courts were unable to make up for this deficiency.

Distinction between the Court’s case-law on Holocaust denial and the present case

The Chamber and the Grand Chamber relied on different arguments in order to distinguish the present case from cases involving Holocaust denial. The Chamber expressed doubts as to the existence of a “general consensus” on the question whether the events that took place during 1915 and subsequent years in Turkey could be characterised as “genocide” of the Armenian people. On this basis it drew a distinction between the criminal sanctions imposed on account of the applicant’s speeches and cases concerning denial of crimes relating to the Holocaust (see paragraph 117 of the Chamber judgment). Although the Chamber stated that it was not its task to evaluate historical events (see paragraph 99 of the Chamber judgment), its reasoning seems to be based on the assumption of a different degree of certainty about what happened in Turkey in 1915 and in Germany during the Nazi regime. This approach might be (mis)understood as an assessment of the validity of knowledge about historical facts.

The majority of the Grand Chamber distance themselves from this approach and argue that “the justification for making [Holocaust denial] a criminal offence lies not so much in that it is a clearly established fact” (see paragraph 243 of the present judgment). Instead, they see the context as the relevant element, referring to geographical and historical factors (see paragraphs 242-48 of the present judgment), as well as to the time factor (see paragraphs 249-50 of the present judgment). According to this view, the States where the prohibition of Holocaust denial has been deemed compatible with the Convention are those which have “experienced the Nazi horrors, and which may be regarded as having a special moral responsibility to distance themselves from the mass atrocities that they have perpetrated or abetted” (see paragraph 243 of the present judgment). The majority are unable to find such a link of responsibility between Switzerland and the events that took place in the Ottoman Empire (see paragraph 244 of the present judgment). Furthermore, the majority refer to the time factor and argue that the lapse of time between the commission of atrocities and the resurgence of a controversial debate attenuates the effects of critical statements.

I cannot agree with this approach. For me it is not only “laudable, and consonant with the spirit of universal protection of human rights, ... to seek to vindicate the rights of victims of mass atrocities regardless of the place where they took place” (see paragraph 246 of the present judgment), but this is wholly sufficient to justify legislation of this kind. It is a “choice of society” (see S.A.S. v. France [GC], no. 43835/11, § 153, ECHR 2014) which the Court has to accept. Legislation expressing solidarity with victims of genocide and crimes against humanity must be possible everywhere, even if there are no direct links to the events or the victims, even if a long period of time has elapsed, and even if the legislation is not directly aimed at preventing conflicts. Each society must be free to settle the conflict between free and unrestricted debate on historical events and the personality rights of victims and their descendants in accordance with its vision of historical justice in the case of what is alleged to be a genocide.

The choice of society, however, has to be based on a transparent and open democratic debate in society and has to be laid down in law in such a way as to make it clearly foreseeable what statements are allowed and what statements are not only taboo, but attract criminal sanctions. Doubts regarding criminal responsibility may suffocate historical debate from the very outset, and may cause historians not to touch upon a certain subject any more. The legislation on Holocaust denial in Germany, Austria, and Belgium which the Court has assessed so far (see paragraphs 209-12 of the present judgment) has been unequivocal in this context. All the relevant laws directly refer to the “National Socialist regime” (see the references to the relevant provisions in paragraph 91 of the judgment). In France 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 (see paragraph 91 of the judgment), thus likewise making it clear which historical events are meant.

Procedural violation of Article 10 of the Convention

Contrary to the situations referred to above, the legislative process in Switzerland was not focused on the “Armenian question”. Instead, it took the form of a general debate on prohibiting denial of genocide and crimes against humanity, in which this aspect was only mentioned as an example (compare the documents on the legislative process in paragraphs 37-38 of the judgment, as well as the explicit analysis of the legislative process by the Swiss courts in paragraphs 22-26 of the present judgment). Neither was the example of the Armenian genocide taken up in the text of Article 261 bis § 4 of the Criminal Code.

The criminal provision of Article 261 bis § 4 is worded in such a way that it is unclear whether the courts applying the provision have to decide themselves on the characterisation of a historical event as “genocide” and, if so, on what basis. This insurmountable difficulty is amply illustrated by the decisions of the Swiss courts. While international law and Swiss national law provide a clear definition of “genocide” (see paragraphs 47 and 52-54 of the judgment) on which the courts can rely, they struggle to determine which methodology to use in order to reach a decision on the legal characterisation of an event dating so far back in history (reference to scientific literature, to political statements by State bodies and international institutions, and so on – see paragraphs 22-26 of the present judgment). They are confronted with the problem that there is neither a judgment of an international court nor unanimity in the debate at national and international level, be it among academics or politicians. Thus, the Swiss Federal Court cannot but refer to what it calls “enough of a general consensus, especially among historians” (point 4.3 of the Swiss Federal Court’s judgment, quoted in paragraph 26 of the present judgment). Can that be sufficient for a criminal conviction for an opinion which doubts the characterisation of “genocide”?

In my view this illustrates that the Swiss legislature has failed to balance the rights protected under Article 8 and those protected under Article 10 as far as the debate on the events in Turkey in 1915 is concerned. In such a sensitive area it cannot be sufficient to legislate on the conflicting rights in the abstract without reference to the specific historical case. This is the relevant difference between the present case and the cases involving Holocaust denial, where the limits of historical debate were clearly defined on the basis of national legislation and where the courts could therefore take the legal characterisation of the Holocaust as “genocide” as the starting-point for their assessment of criminal responsibility. Leaving substantial doubts in such an important debate endangers freedom of expression more than is necessary in a democratic society.

Therefore I have voted in favour of finding a (procedural) violation of Article 10 of the Convention, and also in favour of carrying out a separate examination of the case under Article 7 of the Convention.

JOINT DISSENTING OPINION OF JUDGES SPIELMANN, CASADEVALL, BERRO, DE GAETANO, SICILIANOS, SILVIS AND KŪRIS

(Translation)

I. Assessment of the applicant’s statements

II. Impact of geographical and historical factors

III. Impact of the time factor

IV. Lack of consensus

V. Lack of an obligation to criminalise such statements

VI. Balancing of the rights at stake

“... 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 ...”

ADDITIONAL DISSENTING OPINION OF JUDGE SILVIS, JOINED BY JUDGES CASADEVALL, BERRO AND KŪRIS

[1]. For an in-depth analysis of both the existence of the crimes and the intentional element on the part of those who perpetrated them, see H.-L. Kieser and D. Bloxham, “Genocide” in J. Winter (ed.), The Cambridge History of the First World War, Cambridge, Cambridge University Press, 2014, vol. I, Global War, pp. 585-614

Text from our archive (European Court of Human Rights, HUDOC). © Council of Europe / European Court of Human Rights. Reuse permitted with attribution; the Court's translations into languages other than English and French are not authoritative.