-Video of the entire ECHR hearing on Perinçek vs Switzerland, with the brilliant speech by Dr. Stefan Talmon, who is an Oxford scholar representing Turkey as a third party
-Dr Dogu Perincek's Speech, English/Turkish (Video & Text)
-Mr Mehmet Cengiz, Lawyer On Behalf Of Mr Perincek - English/Turkish (Text)
-Mr L Pech, Lawyer On Behalf Of Mr Perincek -Oral Submission in French (Text)
-Mr Gevorg Kostanyan’s Speech (Video)
-Mrs A Clooney & Mr G Robertson’s speech (Video)
-Mr Geoffrey Robertson’s speech . . .
European Court of Human Rights
Hearing : 28/01/2015 09:15
Grand Chamber: Perinçek v. Switzerland (no. 27510/08)
Perinçek v Switzerland (no. 27510/08)
Video of the entire ECHR hearing on Perinçek vs Switzerland, with the brilliant speech by Dr. Stefan Talmon, who is an Oxford scholar representing Turkey as a third party
Dr Dogu Perincek's Speech at European Court of Human Rights
Courtesy of Australian Turkish Advocacy Alliance
ECHR Hearing - Dr Dogu Perincek 28Jan 2015
Courtesy of Mehmet Perincek
ECHR Hearing - Mr Mehmet Cengiz, Lawyer On Behalf Of Mr Perincek
Courtesy of Mehmet Perincek
ECHR Hearing -Mr L Pech Lawyer On Behalf Of Mr Perincek -Oral Submission in French -28 Jan 2015
Courtesy of Mehmet Perincek
Prof Laurent Pech,
Dear president, dear judges, allow me to begin by recalling two fundamental principles: Freedom of expression does not secure or guarantee an absolute right, however the authorities can not limit their exercise arbitrarily or in a disproportionate manner but must abide by certain conditions. Indeed, restrictions must be provided for by law , legitimate and necessary in a democratic society within the meaning of article 10 of the European Convention on Human Rights. In a democracy freedom must be the rule the restrictions be the exception. It is also important to recall that in this case the Court is not called upon to determine the reality of the mass killings perpetrated against the Armenian people from 1915 onwards or to take the opportunity to qualify the events as genocide under the Swiss criminal code, as set out by the decision of the second chamber of 17 December 2013.
The decision is whether or not freedom expression protects the right of the applicant to challenge the legal characterization as genocide of such tragic events undertaken by the authorities of a third country, that is, Switzerland. Our client indeed never challenged that there were massacres and deportations and never condoned them, and never tried to stir up hatred against the Armenians as is illustrated by the judgement of 17 December 2013. Upon reading the written observations submitted by the Swiss government, and the most recent observations, we find some confusion in this regard. Hence, it is important to recall that in our opinion the case before us can not be settled on the basis of the principles you have set up in your case law regarding hate-speech or those pertaining to in denial of the holocaust. I reiterate that the applicant, our client, never denied the crimes committed from 1915 onwards, and quite clearly does not have any intent to infringe freedoms. The matter at hand is quite different: that of the scope of the right to defend minority opinions that have a potential to fuel the debate on controversial items of public interest that have not yet been settled, and once again I refer to the judgement of 17 December 2013. In this context I would like the following three guiding principles that have guided you in your case law to date, be applied in this particular case as well:
First of all the principle according to which freedom of expression applies not only to ideas and opinions that are generally acknowledged or not offensive but in particular for ideas that also might be disturbing or shocking .
Another principle that you have set out is that researching and seeking historical truth is integrating part of freedom of expression. It is not up to the Court to seek to define historical truth, while such truth is still controversial, and finally the principle according to which the passage of time must be favorable to freedom of expression.
It also seems logical to us to protect in light of these guiding principles the right to challenge the legal characterization given to the tragic events of 1915 by the Swiss courts, while even your court in its case law has sanctioned any penal persecution in relation with the humiliation for being Turkish or for having described the 1915 events as genocide. So I find consistency of the case law is of the essence. Considering the concept of genocide as the exclusive means and thus indispensable to prosecute such comparable crimes on the grounds that these might be a threat to the identity as a group is in our opinion not in line with the freedom of expression because the concept of identity is extremely vague, and accepting this would leave the door wide open to abuse. The Swiss courts have often referred to identity in relation to dignity. This concept of identity should be only used with big caution since one does not know how a court could objectively decide which historical tragedies have contributed to the creation of a national identity or which ones are at the heart of a national identity or community. And why should it be prohibited to use another characterization than that approved by one house of parliament or a jurisdiction of a third country.
The judgement delivered on 17 December 2013 should be commended and welcomed for its detailed and accurate analysis of recent development in comparative law. The decision of the constitutional Courts of Spain and France in November 2007 and 2012 were referred to and analyzed in detail in the aforementioned judgement. I would like to draw your attention to article 19 of the International Covenant on Civil and Political Rights to recall a fundamental principle under article 19 , as well as the Spanish and French case law, that confirmed that criminalizing opinions pertaining to historical events because they were considered erroneous or implied an inaccurate interpretation of past events is not consistent with freedom of expression as secured by article 19 of ICCPR. Every state is of course free to recognize or not an event as a genocide and one might think that such an approach is more conducive to dispute and difference of opinion, rather than reconciliation: above all, it does not seem appropriate for States to decide or pass laws on tragic events suffered by others in which that country was neither involved directly nor indirectly. In any event we challenge the conformity with article 10 of the Convention of the application of any criminal provision prohibiting the challenging of the legal characterization which should be given to certain historical events.
In these troubled times I find it important to underline that the main purpose of freedom of expression is to protect opinions that might not be popular- whether in Switzerland, in Turkey or elsewhere.
The Swiss Government raises a number of arguments to justify the existence and implementation of article 261 bis of the Code Penal Suisse of which the vague wording and and in-transparent nature were already demonstrated by the judges Raimondi et Sayo (?) in their concurring opinions in the judgement of 17 December 2013. I will not reiterate all what was said in the judgement but I would like to refer to the analysis made regarding the non foreseeable nature of the interference in the instant case.
Since we do not have a lot of time we will emphasize two main points that reflect an inaccurate interpretation of international law on the one hand and EU law on the other hand:
First of all, the impugned decision of the SCC was justified by Switzerland’s accession to the international Convention of the elimination of all forms of racial discrimination. This text does not set up an obligation to adopt specific criminal or exceptional provisions regarding the negation of genocide. If that was the case, most states would have adopted a similar provision on the basis of that Convention. This is not the case for the moment.
Art. 19 of the Covenant of the UN was not mentioned in the most recent written observations of the Swiss government and other third parties interventions. Whereas the UN Human rights committee has said that under article 19 of the Covenant laws that criminalize the opinions on historical events are inconsistent with the obligation stemming from the Covenant, and incumbent on the State-parties. As to the EU law , described by Switzerland and some third parties as evidence, that criminalizing the denial of any genocide is to date an obligation under the EU human rights protection mechanism, we find that it is subject to erroneous interpretations. This is not surprising to the extent that the framework decision 2008/913 was controversial and stemmed from negotiation that lasted seven long years because of a major conflict among EU member states within the EU council. That decision, you can read it in detail, comprises many exceptions to the general principles, which it sets out. EU law has not set up an obligation to punish condoning a genocide, only if the intention was to stir up violence and hatred against a particular or a group on the grounds of the race or ethnic origin, but sets up the obligation to punish comments that amount to hate speech. There is no obligation to punish comments that punish the legal characterization of past events. No specific legal provision in our opinion is required
If you carefully read the report of the EU commission of January 2014 on the adoption and implementation of the framework decision, we find that 13 member States of the EU had deemed that it was not necessary to criminalize denial and trivialization or condoning crimes defined in articles 6, 7 , 8 of the Statute of the ICC. The Decision explicitly recalls that it can never justify the adoption of measures inconsistent and incompatible with the freedom of expression. In any event, EU law does not govern a situation such as the one we are dealing with in the instant case . Switzerland is not a member of the EU , however, exceptionally even if it were, these provisions of the EU law would not be relevant. In this case we were dealing with a speech that was historical, legal and political, as it is clearly set out in the judgement of 17 December 2013. I refer to the second section of the Court that described the comments of the applicant as historical, legal and political. To conclude, it seems incompatible with your case law as well as incompatible with international law or what we find in comparative law; it appears that freedom of expression has not been respected in the instant case. We do not find that a provision such as the one contained in the Swiss criminal code is required by the EU human rights protection mechanism.
Indeed, freedom of expression can not tolerate state-defined historical truths that infringe it on the basis of an undue broadening of the legal concept of genocide as well as the retroactive application of this concept according to a majority at a given time in a respective country. Many historians over the past years have defended the view that in a free state, it is not up to any political authority to define historical truth, or to define by law a historical truth of which the application may have serious consequences and repercussions for intellectual freedom (Pierre Norat). We fully agree to this point and express the with that this Court might to the same. Thank you for your attention.
Prof Laurent Pech- Reply
I would like to focus on the main points raised by the representatives of the Swiss government- I will not refer to the observations made on behalf of the Armenian government because I could not identify any relevant legal arguments for settling the pending case.
First of all, as regards the legal framework and namely whether the criminal provision in the Swiss code is transparent within the meaning of article 10 of the European Convention I would like you to refer to the written submissions of the Swiss government whose length on that aspect demonstrate from our viewpoint that this provision is little transparent. Otherwise it would not have been necessary to elaborate on the clarity of this provision on several pages.
As regards the comparative law study I would like to invite the court to verify whether the countries quoted provide for criminal provisions which make explicit reference to the Armenian genocide. Recently I read the Greek legislation which was mentioned this morning and in fact, I did not find any explicit reference to the Armenian genocide. It only applies the EU framework decision and it, as I understand, refers back the genocide as recognized by the Greek parliament. However I recall that this logic, that is, referring to the recognition of events as a genocide by a State parliament before taking repressive measures, was, as the Armenian genocide case is concerned, found to be contrary to the French constitution. I refer you to the decision of the constitutional council in this regard.
I would also like to stress that we are not speaking about genocide denial but whether or not you can have a legal distinction, respectively a discussion on the legal qualification of the tragic events of 1915. The notion of general consensus was mentioned on several occasions to back up the thesis according to which the aforementioned events have to be classified as genocide, but I agree on the approach that we should rather refer to the definition of the UN Convention of 1948 than relying on the somewhat subjective notion of “general consensus” which only serves a public majority opinion. It was also argued that the public would not understand the legal distinction which is made between the denial, the challenge of a historical fact and the opinion according to which certain historical events do not qualify as genocide under international penal law. I consider that we should not apply criminal law depending on whether or not the population understands certain legal terms. Furthermore, while it is true that a number of countries have recognized the Armenian genocide- and a couple of them have, notably in non-legislative resolutions- it is wrong to say that there were no States which refused to recognize it. I refer the Court to a recent decision of the German federal court of 13 January 2015 which in fact refuses to expressly recognize the Armenian genocide as genocide within the meaning of international penal law; it also turns out that the federal government is against a retroactive application of the 1948 UN Convention. I also refer to a declaration of the Australian government of 2014 which also refuses to expressly recognize the events of 1915 as amounting to a genocide. And of course we are quite willing to produce the relevant documents.
As regards the notion of discourse, in order to justify that this was a legal and political discourse I would like to refer to the biography of my client which shows that he has always been extremely interested in these matters and that he has always spoken in order to defend minority views especially those of minorities in Turkey for which in fact he was convicted on several occasions to imprisonment.
As regards the so-called nationalist motives, which were raised to justify the criminal sentence, nationalism is not a criminal offense to my knowledge. Furthermore, this is also false because M Perincek can be rather qualified as an internationalist than being nationalistic.
As regards the democratic legitimacy, this is my last argument, president, of art. 261 of the Swiss criminal code which was relied on by one of the counsels to the Swiss government to justify its quite cumbersome drafting and legitimacy, I think that the rationale of your court is indeed to protection the main values on which the European Court of Human Rights is founded, which primarily means that minority and unpopular opinions should be shielded from any tyranny of a majority.
Thank you.Courtesy of Sukru Server Aya
European Court Armenian Genocide A. Clooney G. Robertson’s speech in ECHR - Perinçek vs Switzerland
Gevorg Kostanyan’s speech in ECHR hearing of Perinçek v. Switzerland case
Amal Clooney’s speech in ECHR hearing of Perinçek v. Switzerland case
Geoffrey Robertson’s speech in ECHR hearing of Perinçek v. Switzerland case