The Perinçek Case: Switzerland Faces Dilemma

Back in 2005, during various conferences of the Turkish Labor Party in Switzerland, Dogu Perinçek repeated numerous times that the Armenian Genocide of 1915 was an “international lie”. The Switzerland-Armenia Association filed a criminal complaint against Perinçek for his words and the Federal Supreme Court of Switzerland, located in Lausanne, found him guilty according to article 261, paragraph 4 of the Swiss Criminal Code that refers to racist and revisionist discourse. Dogu Perinçek then lodged an appeal that was dismissed by the Criminal Court of Cassation of the Vaud Cantonal. Having exhausted all other alternatives, Dogu Perinçek appealed the Swiss Confederation under the Court of Cassation according to article 34 of the European Convention of Human Rights that allows for individual appeals against States. The ECHR ruled in favor of Perinçek under article 10 of the ECHR relating to freedom of speech, considering that if his words were, indeed, of “nationalist” and “racist” nature as ruled by the Swiss courts, they remained nonetheless within the scope of article 10 of the Convention. The ECHR pointed out that Perinçek recognized the killings and deportations of Armenians by the Ottoman Empire while denying the legal appellation « genocide », which was not considered advocacy of racial hatred against Armenians. This ruling had Switzerland appeal to the Grand Chamber of the very same Court; hearings began on Wednesday, January 28th.
 

From April 1915 to July 1916, two-thirds of the Armenians living on the current Turkish territory, i.e. 1,200,000 people from Anatolia and the Armenian Highlands, were exterminated during deportations and killings perpetrated by the Ottoman Empire.

During the ruling of the Perinçek case in 2007, Switzerland gave grounds for its decision to condemn Dogu Perinçek based on the fact that the Armenian Genocide was a matter of historical fact. Denying it would make Dogu Perinçek guilty of racial discrimination. Switzerland had the support of the Swiss public opinion and numerous statements from the European Parliament and the Council of Europe to base its consideration of the Armenian Genocide as a historically proven fact. The European Parliament and the Council of Europe recognized the deportations and the killings of Armenians by the Ottoman Empire as one of the very first genocides of the 20th century.

Their decision was also motivated by the memorial law of the French Republic from January 29th, 2001, which stated, “France publically recognizes the Armenian Genocide of 1915. The present law shall be executed as a law of the State.” Dogu Perinçek recognized the killings and the deportations of Armenians by the Ottoman Empire, but denied the “genocide” designation, going as far as talking about an “international lie”.

The dispute was indeed about the difference between these terms: history and memory. History is a continuous research and study for the understanding of past events, whereas memory deems historical facts as “truth”. Similarly, in 2011, Nicolas Sarkozy, then President of the French Republic, wanted to put the Armenian Genocide in the French Constitution, but was opposed to the argument that a historical fact could not be put in it, insofar as it would have been considered indisputable, although history should always be disputed.

In the light of this argument, it is important to underline that the Court of Cassation of Lausanne, in its first ruling against Perinçek, mentioned, “Motives pursued by the plaintiff [Dogu Perinçek] resembled racist motives and were not a matter of historical debate.”

The line between freedom of speech and racist speech is thin and particularly topical. The article 261 of the Swiss Criminal Code which references discrimination states in paragraph 4, “whoever publicly, by word, writing, image, gesture, acts of violence or any other manner, demeans or discriminates against an individual or a group of individuals because of their race, their ethnicity or their religion in a way which undermines human dignity, or for the same reason, denies, grossly minimizes or seeks to justify a genocide or other crimes against humanity; […] will be punished by a maximum of three years imprisonment or a fine.”
However, in ECHR’s judgment of December 2013, the same article from the Swiss Criminal Code opposes the article 10 of the European Convention of the Human Rights relating to freedom of speech.

Indeed, the case-law of the ECHR states, that potential restrictions to freedom of speech are “necessary in a democratic society”, considering as “necessary” the “pressing social need”, but that the Court must assess the proportionality of a restriction on freedom of speech to the aim pursued.

Moreover, the appreciation of freedom of speech as part of political speeches is especially large as the article 10 of the Convention does leave place to restriction on freedom of speech only within the limits of the admissible critics. Nevertheless, the incitement to violence or hatred has a larger margin of appreciation.

The Court admitted in December 2013 that the “plaintiff’s words had the potential to provoke. The plaintiff’s motives to commit to the infraction were deemed “nationalists” and “racists” by national tribunals […] But the Court points out that offending, shocking or troubling ideas are under protection of article 10. Furthermore, it considers important that the plaintiff never denied the killings and deportations during the period inquired. What he denies, however, is the legal qualification of “genocide” given to these events.” Moreover, the Court considers that the rejection of the legal qualification of these events in 1915 was not of the nature hatred itself against the Armenian people.

By this ruling, Switzerland sees its anti-racist legislation reconsidered, insofar as the appreciation of the ECHR admits that shocking ideas are also within the scope of the freedom of speech mentioned in article 10 of the Convention. Switzerland appealed this ruling in January 2014 and the hearings before the Grand Chamber of the ECHR re-started last week.

Switzerland’s interest in the outcome of this appeal is to be put into perspective with the popular vote regarding the modification of the Swiss Constitution. Its change, which would have Swiss law take precedence over the international law, will be subject to Swiss citizens’ vote in 2015.

Indeed, this popular vote carried by the Swiss People’s Party (or Democratic Union of the Centre), the leading Swiss party which defines itself as “morally conservative and economically liberal”, would aim to have the Swiss law take precedence over the international law. This would lead, in the long run, to Switzerland walking away from the Council of Europe and therefore leaving the ECHR.

The SPP had brought in 2012 the popular vote against “mass immigration” which was approved on February 9, 2014 by the citizens and the Swiss cantons. It is in this anti-internationalist logic that the outcome of the appeal of the ECHR ruling is awaited.

For the defendants of Switzerland’s membership to the ECHR, if the latter were to confirm its ruling in favor of Perinçek, the legislation on the battle against racism would seem to lose its meaning. A contrario, for the SPP, the ECHR ruling in favor of Perinçek would justify, in the eyes of their fellow Swiss citizens, the uselessness of Switzerland’s membership to supra-national organs, and would allow for even further justification of the popular "yes" vote regarding the precedence of the internal law over the international law. Moreover, if the ECHR were to confirm the ruling from December 2013, the “repudiation” of article 621 of the Swiss Criminal Code would allow the SPP to move a step further in its desire to revoke this article and, as such, to justify a larger scope in the freedom of speech in accordance with their populist tendencies.

Nevertheless, the “isolationist” policy conducted by the SPP is not without stirring controversy, including within the party. Indeed, Adolf Ogi, influential member of the SPP, thinks that the initiative “against mass immigration”, the projects of the party pursuing a restriction on right of asylum and threatening the validity of the international law, as well as the “attack” – led by Christoph Blocher – against bilateral agreements with the European Union, all “lead the country to total isolation”, an isolation that would harm the Swiss Confederation.

This divergence in opinions between two big names of the party has the Swiss political landmark teetering on the brink of disagreement. Indeed, if the SPP were to split in half, the Social Democratic Party of Switzerland would become the most represented in the Swiss National Council.

Therefore, Swiss awaits carefully the outcome of the appeal ruling of the ECHR, as much in view of the popular vote on the precedence of national law over international law and its consequences regarding the scope of the judgment of the ECHR on racism and revisionism with regard to article 10.