Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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In 2005, Doğu Perinçek, the Chairman of the Turkish Workers’ Party, made three separate public statements in Switzerland on the Armenian genocide. First, during a press conference in Lausanne, he said: “Let me say to European public opinion from Bern and Lausanne: the allegations of the ‘Armenian genocide’ are an international lie.” “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,” said Perinçek.
Later during a public event in Zürich, he implicitly denounced the existence of the genocide by claiming that the “Kurdish problem and the Armenian problem were therefore, above all, not a problem and, above all, did not even exist.” Then in September 2005, during a rally of the Turkish Workers’ Party in Bern, Perinçek said: “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.”
After the second statement, the Switzerland-Armenia Association brought a criminal complaint against Perinçek. In March 2007, the Lausanne District Police Court of Switzerland found him guilty of violating Article 261 bis § 4 of the Criminal Code, which imposes imprisonment up to three years or a fine against “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 . . .” The court sentenced Perinçek to pay 100 Swiss francs for 90 days, a sum of 3,000 Swiss francs, replaceable with 30 days imprisonment, and 1,000 Swiss francs to the Switzerland-Armenia Association for its non-pecuniary damages. In June 2007, the Criminal Cassation Division of the Vaud Cantonal dismissed Perinçek’s appeal, finding that he had denied the Armenian genocide, which has been recognized as a “proven historical fact” by the Swiss legislature. In December 2007, the Federal Court of Switzerland subsequently denied his appeal from that judgment.
In June 2008, Perinçek filed an application in the European Court of Human Rights. Among other grounds, he alleged that the Swiss courts had wrongfully breached his right to freedom of expression under Article 10 of the European Convention on Human Rights by convicting him for denial the Armenian genocide. The Chamber concluded that the reasons given by the domestic court of Switzerland were insufficient to justify his conviction. In particular, it held that in light of all circumstances, the conviction neither amounted to a “pressing social need” nor “necessary in a democratic society.” In March 2014, the Swiss government requested that the case be referred to the Grand Chamber.
The Grand Chamber first held that Perinçek’s criminal conviction and sentence as a form of government’s interference with his right to freedom of expression were properly prescribed by law in pursuant to the legitimate aim of protecting Armenians’ identity and dignity. In balancing the right to freedom of expression under Article 10 and the right to private life under Article 8 of the Convention, the Grand Chamber analyzed a number of relevant factors, such as the nature of the statements, the place and time when they were expressed, the extent to which the rights of Armenians were consequently affected, and the severity of the conviction. After taking into account all relevant factors, the Grand Chamber concluded that the Swiss government’s interference with Perinçek’s right to freedom of expression was not necessary in a democratic society. As a result, it found the government in violation of Article 10 of the Convention.
On three separate occasions in 2005, the Chairman of the Turkish Workers’ Party Doğu Perinçek took part in a series of public events in Switzerland. During these events, he publicly denied the occurrence of the Armenian genocide. In May 2005, during a press conference, he described the allegations of the genocide “an international lie.” Subsequently in July 2005, Perinçek attended a public event to commemorate the 1923 Treaty of Lausanne in which he said: “The Kurdish problem and the Armenian problem were therefore, above all, not a problem and, above all, did not even exist . . .” Then, at a rally of the Turkish Workers’ Party in September 2005, Perinçek said “this is the truth, there was no genocide of the Armenians in 1915. It was a battle between peoples and we suffered many casualties . . .”
In July 2005, after Perinçek’s second statement, the Switzerland-Armenia Association filed a criminal complaint against him for his public denial of the Armenian genocide. Then in March 2007, the Lausanne District Police Court found him guilty of racial discrimination within the meaning of Article 261 bis § 4 of the Swiss Criminal Code. The provision imposes imprisonment up to three years or a fine against “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 . . .” The court held that Perinçek’s statements met all the required subjective and objective elements of Article 261. In particular, it found that his motives in making those statements were both “racist and nationalistic.” It ordered Perinçek to pay 100 Swiss francs for 90 days, a sum of 3,000 Swiss francs, replaceable with 30 days imprisonment, and 1,000 Swiss francs to the Switzerland-Armenia Association for its non-pecuniary damages.
In June 2007, the Criminal Cassation Division of the Vaud Cantonal Court dismissed his appeal, which noted that the Swiss legislature had proven the existence of the genocide as a “historical fact.” Following this dismissal, Perinçek filed a criminal appeal with the Federal Court of Switzerland and requested that the judgment be set aside. The Federal Court, however, dismissed his appeal. The court affirmed the findings of racist and nationalistic motives behind his statements.
In June 2008, Perinçek filed an application in the European Court of Human Rights against the government of Switzerland, alleging, inter alia, that his conviction violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. The Chamber of the court held that the conviction violated Article 10 of the Convention, concluding that the Swiss domestic courts “did not show, in particular, that [his] conviction met a ‘pressing social need’ or that it was ‘necessary in a democratic society’ for the protection of the honour and feelings of the descendants of the victims of the atrocities dating back to 1915 and subsequent years.” [para. 129] See Perinçek v. Switzerland, Application No. 27510/08 (2013).
In March 2014, the government of Switzerland requested that the case be referred to the Grand Chamber.
The first issue before the Grand Chamber (“Court”) was whether Perinçek’s criminal conviction and sentence could be justified under Article 16 of the European Convention on Human Rights.
Under Article 10 of the Convention, everyone has the rights to receive and impart information and ideas “without interference by public authority and regardless of frontiers . . .” The exercise of this freedom, however, can be subject “to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society . . .”
Relevant to freedom of expression, Article 16 of the Convention reads: “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.” The Swiss government argued that Perinçek’s conviction and punishment were justified under this article. The court noted that Article 16 was invoked only once in the context of freedom of expression in Piermont v. France, Series A no. 314 (1995). In that case, a German national was expelled from France as a result of her speech. The Court held that Article 16 was not applicable because she was a national of another member State of the European Union and therefore, she was not an alien within the meaning of Article 16. Here, the Court ruled that “Article 16 should be construed as only capable of authorising restrictions on ‘activities’ that directly affect the political process of State party,” and not the alien’s right to freedoms of opinion and expression. [para. 121]
The second issue was whether Perinçek’s criminal conviction and sentence amounted to a justified interference under Article 10 of the Convention. According to the Court, for an interference to be considered justified, it “must have been ‘prescribed by law’, intended for one or more of the legitimate aims [under paragraph 2 of Article 10], and ‘necessary in a democratic society’ to achieve that aim or aims. [para. 124] In addition, it emphasized that the phrase “prescribed by law” denotes that governments’ restrictive measures must be formulated with “sufficient precision to enable the person concerned to regulate his or her conduct . . .” [para. 131] As such, the Court first addressed the question of whether at time of expressing his statements, Perinçek knew or should have known that those statements could render him criminally responsible. The government contended that Article 261 bis § 4 of its Penal Code makes an offense to deny both genocide and crimes against humanity, and that there could little dispute that atrocities committed against Armenians constituted such grave crimes. The Court noted Perinçek’s prior admission to the prosecuting authorities, acknowledging that the Swiss National Council had recogni[z]ed the events of 1915 as a genocide against Armenians. In light of this fact, it held that his conviction and punishment were “sufficiently foreseeable, and therefore, ‘prescribed by law’ within the meaning of Article 10 § 2 of the Convention.” [para. 140]
The third issue was whether his conviction was pursuant to one or more legitimate aims recognized under Article 10 of the Convention, such as national security, prevention of disorder or crime, or protection of the reputation or rights of others. The Swiss government argued that its interference with Perinçek’s right to freedom of expression was pursuant to two paramount legitimate aims of preventing disorder and protecting the identity and dignity of Armenians. With respect to prevention of disorder, the Court placed the burden on the Swiss government to show that Perinçek’s denial of the Armenian genocide was capable of “leading or actually led to disorder.” [para. 152] It found that the government failed to present any specific evidence showing that Perinçek’s statements were capable of leading to public disturbance or unrest. As to the aim of protecting the Armenians’ right to identity and dignity, the Court held that the government’s interference was properly intended to protect such objective. While Perinçek did not specifically direct his statements towards the Armenian community, the Court found that in his first public statement, he explicitly accused them of “carr[ying] out massacres of the Turks and Muslims.” Accordingly, the Court concluded that the interference with his right to freedom of expression properly sought to achieve the aim of protecting the rights of others within the meaning of Article 10.
The last issue was whether such interference was necessary in a democratic society. Pursuant to its jurisprudence, the Court noted that the adjective “necessary” under Article 10 implies “the existence of a pressing social need.” But States parties to the Convention enjoy a margin of appreciation in assessing whether such a need exists. In Aksu v. Turkey, Application Nos. 4149/04 and 41029/04 (2012), the Court held that “the negative stereotyping of an ethnic group was capable, when reaching a certain level, of having an impact on the group’s sense of identity and on its members’ feelings of self-worth and self-confidence,” and therefore, such negative stereotyping was within the meaning of Article 8 of the Convention on the right to private life. Because the identity of Armenian people perceived as a group who suffered atrocities during the events of 1915, the Court first proceeded with striking a balance between the right to freedom of expression and right to private life. Relevant to Perinçek’s statements, the Court recalled its case law concerning the denial of Holocaust, including statements denying the existence of gas chambers or describing the Holocaust as sham or myth. However, the Court emphasized that its assessment of the necessity of interference with statements relating to historical events has been “quite case-specific and has depended on the interplay between the nature and potential effects of such statements and the context in which they were made.” Accordingly, the Court assessed Perinçek’s public denial of the Armenian genocide through a number factors, namely: (1) the nature of his statements; (2) the place and time when the statements were made; (3) the extent to which the rights of Armenian were consequently affected; (4) the existence or lack of consensus among the States parties on criminalizing the denial of genocide, and (5) the severity of the interference.
(1) Nature of Perinçek’s statements
Under the Court’s case-law, “expression on matters of public interest is in principle entitled to strong protection, whereas expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection.” [para. 229] As applied in this case, the Court held that Perinçek’s statements concerned a matter of public interest because he expressed his views as a politician, rather than a historian scholar, and whether genocide was committed against Armenians had been publicly debated in Switzerland. It further held that the statements did not amount to incitement to violence or hatred on the grounds that Perinçek neither expressed contempt or hatred for the victims of the events of 1915 nor called Armenians liars or attempted to stereotype them. [para. 233] The Court concluded that while his remarks “were virulent and that his position was intransigent, but it should be recogni[z]ed that they apparently included an element of exaggeration as they sought to attract attention.” [para. 239]
(2) Geographical and historical factors
The Court acknowledged that the denial of Holocaust can be particularly dangerous in countries that have experienced the Nazi horrors, which may demand special moral responsibility to outlaw such denial. In this case, the Court did not find a “direct link between Switzerland and the events that took place in the Ottoman Empire in 1915 and the following years.” [para. 244] In particular, it held that it is difficult to assert that “any hostility that exists towards the Armenian minority in Turkey is the product of [his] statements in Switzerland or that [his] criminal conviction in Switzerland protected that minority’s rights in any real way or made it feel safer.” [para. 246]
(3) Time factor
The Court also considered the lapse of time between Perinçek’s statements and the events of 1915. It held: “Whereas events of relatively recent vintage may be so traumatic as to warrant, for a period of time, an enhanced degree of regulation of statements relating to them, the need for such regulation is bound to recede with the passage of time.” [para. 250]
(4) Extent to which the statements affected the rights of Armenians
While acknowledging the “immense importance” attached to the events of 1915 and the following years, the Court did not accept that Perinçek’s statements “were so wounding to the dignity of the Armenians who suffered and perished in these events and to the dignity and identity of their descendants as to require criminal law measures in Switzerland.” [para. 252] It reasoned, inter alia, that his statements were not directed at the Armenian community but “towards the ‘imperialists’ whom he regarded as responsible for the atrocities.” [para. 252]
(5) Existence or lack of consensus among the States parties to the Convention
The Court also analyzed whether other States parties criminalize the denial of historical events. A data revealed that Austria, Belgium, France, Germany, the Netherlands and Romania criminalize only the denial of the Holocaust and Nazi crimes, while Andorra, Cyprus, Hungary, Latvia, Liechtenstein, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Slovakia, Slovenia, and Switzerland criminally sanction the denial of any genocide. Despite that, the Court found that Switzerland “stands at one end of the comparative spectrum” as it criminalizes the denial of any genocide without “the requirement that it be carried out in a manner likely to incite to violence or hatred.” [para. 257]
(6) Severity of the interference
Lastly, the Court held that Perinçek’s criminal conviction, which could result in imprisonment was subject to strict scrutiny, and therefore, it was severe, particularly, when other means of sanction could be imposed by the Swiss government.
Taking into account all the above-mentioned factors, the Court concluded that the Swiss government’s interference with Perinçek’s right to freedom of expression was not necessary in a democratic society. As a result, it found the government in violation of Article 10 of the Convention.
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