Academic journal article Nottingham Law Journal

Disputing the Indisputable

Academic journal article Nottingham Law Journal

Disputing the Indisputable

Article excerpt

Genocide Denial and Freedom of Expression in the Perincek v Switzerland (Grand Chamber) Judgment of the European Court of Human Rights


In the long and animated debate about content and limits on the freedom of expression, as protected by Art. 10 of the European Convention on Human Rights (ECHR or 'the Convention'), (1) the recent European Court of Human Rights's (ECtHR or 'the Court') Judgment in the Perincek v. Switzerland case (2) seems destined to be viewed as a landmark in Strasbourg's jurisprudence on the matter. In particular, the decision is crucial in order to understand the potential collisions between the freedom of expression and the legislation of different European states criminalizing, to different extents, the 'denial' of mass atrocities--or 'denialism', (3) as widely used to designate conduct ranging from the mere negation of genocide, to the "justification, approval or gross minimisation" (4) of core international crimes (5) (out of the scope of this definition, instead, remains the phenomenon of 'revisionism' (6)).

The Grand Chamber of the ECtHR rendered its judgment in Perincek on 15 October 2015. In so doing, the Court both acknowledged and expanded many of the arguments previously developed by the Court's second Section. (7) The Court concluded that the applicant's conviction for having denied the legal characterisation of the Armenian massacre of 1915 as genocide, had violated his right to freedom of expression, as guaranteed by Art. 10 of the ECHR. In considering the specific elements of the case, the Chamber found that the criminal conviction was not "necessary in a democratic society". (8)

As a preliminary matter of fundamental importance, it must be noted that the term 'genocide' in international criminal law assumes a very specific meaning, in which the constitutive element and distinctive feature of the offence--itself the object of endless scholarly debates--is its dolus specialis, which is constituted by the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" [emphasis added]. (9) For the first time in the ECtHR's history, however, the Court deals with the criminalisation of the denial or gross minimisation of a genocide other than the Shoah. Further, in contrast with its previous case law on Holocaust denial, the Court disentangles the conflict between the criminal protection of the dignity of victims and the freedom of expression of the applicant striking the balance in favour of the second.

Before considering whether the judgment in Perincek constitutes a turning point in ECtHR jurisprudence, and before analysing the elements and rationales of the judgment, it is necessary to put the facts of the case under closer scrutiny.


The case originated from statements made in 2005 by Mr. Dogu Perincek, a Turkish citizen, doctor of laws and chairman of the Turkish Workers' Party. Mr. Perincek, at public political events in Switzerland, expressed the view that atrocities inflicted against the Armenian minority by the Ottoman Empire during the years from 1915 had not amounted to genocide.

More precisely--since the nature of the statements is crucial for the judgment-- Perincek, during a press conference in Lausanne, made the following assertion:

   Let me say to European public opinion from Bern and Lausanne: the
   allegations of the 'Armenian genocide' are an international lie
   [emphasis added]. Can an international lie exist? Yes, once Hitler
   was the master of such lies; now it's the imperialists of the USA
   and EU! [...] 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. … 
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