Sunday’s Zaman – October 21, 2015 – A new verdict on ‘Armenian genocide’ (I)

The Grand Chamber of the European Court of Human Rights (ECtHR) on Oct. 15 upheld a verdict on the so-called Armenian genocide.
The Second Section of the ECtHR decided in 2013 that the denial of the Armenian genocide was not a punishable offense. This decision was made upon a lawsuit filed at the Local Court of Minor Offenses of Lausanne by a civil society organization, L’Association Suisse-Arménie (ASA), against Turkish politician Dr. Doğu Perinçek, who said publicly in Lausanne in May 2005 that “the claim that the Ottoman authorities perpetrated the crime of genocide against the Armenians was an international lie.”
The Lausanne court decided on March 9, 2007 that Perinçek committed the offense of racial discrimination, according to the Swiss penal code. Perinçek took the case to the Criminal Cassation Division of the Vaud Cantonal Court. The court rejected Perinçek’s demand on the grounds that “like the Jewish Holocaust, the Armenian genocide was a historical fact recognized as such by the Swiss legislation.” Perinçek then took the decision of the Cantonal Court of Vaud to the Swiss Federal Court. The federal court also rejected the demand on the grounds that the Swiss penal code did not make any distinction among the genocides when it provided for the repression of their denial.
After having exhausted internal recourse procedures, the unrelenting Perinçek filed a lawsuit with the ECtHR against this decision and the Second Section decided that Switzerland had violated Perinçek’s freedom of expression contained in Article 10 of the European Convention of Human Rights (see my article “A milestone verdict on ‘Armenian genocide” published in Today’s Zaman, Dec. 25, 2013). This time, the Swiss government took the verdict of the Second Section to the Grand Chamber of the ECtHR and the Grand Chamber upheld, by a majority of 10 to 7, the verdict of the Second Section. Mr. Perinçek has to be congratulated for having defeated the Swiss government twice in a legal battle.
The verdict of the Grand Chamber has other implications as well:
Law-abiding Armenians, both in the motherland and in diaspora, must have understood that European culture is consistently opposed to the limitation of freedom of expression. Dr. Perinçek did nothing more than practice freedom of speech. The Armenian activists damaged their cause by pushing it too far.
There is a lesson to be drawn from the European Union as well. The EU adopted, in 2008, a Framework Decision making the denial of genocide a punishable offense. Article 1 of the Framework Decision provides that the member states will have to take measures to make the denial of genocide a punishable offense. Since all members of the EU ratified the European Convention on Human Rights and recognized the jurisdiction of the ECtHR, the recent verdict of the court is binding for all of them. Therefore, the EU has to adjust the Framework Decision to the court verdict by deleting the reference to the denial of genocide as a punishable offense. The Turkish authorities have to raise this question during the meetings of the EU-Turkey Association Council.
One important point has to be underlined in order to avoid a misunderstanding, especially in Turkish public opinion. The verdict of the ECtHR does not say that the Armenian genocide did not take place. It simply says that to deny it is not a punishable offense.
Another point that should be highlighted is that many in Turkey applaud the verdicts of the international courts when they like them yet voice unnecessarily harsh criticisms, mixed with all sorts of conspiracy theories, when they do not. It is worth mentioning in this verdict that the Swiss member of the court voted against his government’s demand both during the Second Section and the Grand Chamber stages of the legal procedure. The votes of the judges in the ECtHR should not be assessed according to their citizenship, but this has to be noted as credit for the ECtHR.
The verdict has to be appreciated and all the more so in a country like Turkey, which cannot claim to be a paradise of freedom of expression.
I will examine other aspects of the verdict in my next article.

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