NOTE TO THE EDITOR: The European Court of Human Rights (ECHR) issued a contentious 10-7 ruling on the case of Turkish national Dogu Perincek, convicted in Switzerland in 2007 for denial of the Armenian Genocide. While the ruling upholds Perincek’s right to freedom of speech in this specific case, the court affirmed the “right to dignity” of the Armenian people and, more broadly, did not dispute the legality of criminalizing genocide denial, particularly in the instances of inciting hatred or violence.
ANCA Government Affairs Director Kate Nahapetian offered this reaction to the ECHR court ruling on the Perincek Case:
“A sharply divided European Court for Human Rights failed to consistently apply fundamental principles of law and justice in the Perincek case, resulting in a mixed decision. The court’s conflicted and contradictory judgment, while offering deeply troubling protection for hate speech, does create meaningful new opportunities for progress in ending Turkey’s denials and ultimately reaching a truthful and just resolution of the Armenian Genocide.”
The 134-page ruling includes 3 dissenting opinions, including a dissent submitted by 7 judges from the panel, most notably the President of the European Court of Human Rights Dean Spielmann. That opinion reads, in part:
1. We are unable to agree with the conclusion that there has been a violation of Article 10 of the Convention in the present case.
2. First of all, we note the decidedly timid approach on the Court’s part in reiterating the Chamber’s position that it is not required to determine whether the massacres and deportations suffered by the Armenian people at the hands of the Ottoman Empire can be characterised as genocide within the meaning of that term in international law, but also that it has no authority to make legally binding pronouncements, one way or the other, on this point (see paragraph 102 of the judgment). That the massacres and deportations suffered by the Armenian people constituted genocide is self-evident. The Armenian genocide is a clearly established historical fact. To deny it is to deny the obvious. But that is not the question here. The case is not about the historical truth, or the legal characterisation of the events of 1915. The real issue at stake here is whether it is possible for a State, without overstepping its margin of appreciation, to make it a criminal offence to insult the memory of a people that has suffered genocide. In our view, this is indeed possible.
3. That being so, we are unable to follow the majority’s approach as regards the assessment of the applicant’s statements (I). The same applies to the impact of geographical and historical factors (II), the implications of the time factor (III) and of the lack of consensus (IV), the lack of an obligation to criminalise such statements (V), and the assessment of the balancing exercise performed by the national authorities (VI).