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The Court delivers its Grand Chamber judgment
in the case of Perinçek v. Switzerland
In today’s Grand Chamber judgment1 in the case of Perinçek v. Switzerland (application
no. 27510/0 the European Court of Human Rights held, by a majority, that there had been:
a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The case concerned the criminal conviction of a Turkish politician for publicly expressing the view, in
Switzerland, that the mass deportations and massacres suffered by the Armenians in the Ottoman
Empire in 1915 and the following years had not amounted to genocide.
Being aware of the great importance attributed by the Armenian community to the question
whether those mass deportations and massacres were to be regarded as genocide, the European
Court of Human Rights held that the dignity of the victims and the dignity and identity of modernday
Armenians were protected by Article 8 (right to respect for private life) of the Convention. The
Court therefore had to strike a balance between two Convention rights – the right to freedom of
expression and the right to respect for private life –, taking into account the specific circumstances
of the case and the proportionality between the means used and the aim sought to be achieved.
The Court concluded that it had not been necessary, in a democratic society, to subject Mr Perinçek
to a criminal penalty in order to protect the rights of the Armenian community at stake in the case.
In particular, the Court took into account the following elements: Mr Perinçek’s statements bore on
a matter of public interest and did not amount to a call for hatred or intolerance; the context in
which they were made had not been marked by heightened tensions or special historical overtones
in Switzerland; the statements could not be regarded as affecting the dignity of the members of the
Armenian community to the point of requiring a criminal law response in Switzerland; there was no
international law obligation for Switzerland to criminalise such statements; the Swiss courts
appeared to have censured Mr Perinçek simply for voicing an opinion that diverged from the
established ones in Switzerland; and the interference with his right to freedom of expression had
taken the serious form of a criminal conviction.
The applicant, Doğu Perinçek, is a Turkish national who was born in 1942 and lives in Ankara
(Turkey). He is a doctor of laws and chairman of the Turkish Workers’ Party.
In 2005 Mr Perinçek participated in three public events in Switzerland, in the course of which he
expressed the view that the mass deportations and massacres suffered by the Armenians living in
the Ottoman Empire from 1915 onwards had not amounted to genocide.
At a press conference held in May 2005 in Lausanne (Canton of Vaud), Mr Perinçek stated that “the
allegations of the ‘Armenian genocide’ are an international lie”. According to him, “imperialists from
the West and from Tsarist Russia were responsible for the situation boiling over between Muslims
1. Grand Chamber judgments are final (Article 44 of the Convention).
All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of
their execution. Further information about the execution process can be found here:
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.”
At a conference held in July 2005 in Opfikon (Canton of Zürich) to commemorate the peace treaty
concluding the First World War with respect to Turkey, after holding a speech in which he stated
that “the Armenian problem ... did not even exist”, Mr Perinçek handed out copies of a tract written
by him in which he denied that the events of 1915 and the following years had constituted genocide.
Finally, at a rally of the Turkish Workers’ Party held in Köniz (Canton of Bern) in September 2005,
Mr Perinçek stated that “the Soviet archives confirm that at the time there were occurrences of
ethnic conflict, slaughter and massacres between Armenians and Muslims. But Turkey was on the
side of those defending their homeland and the Armenians were on the side of the imperialist
powers and their instruments ...” He then went on to state again that “there was no genocide of the
Armenians in 1915.”
The Switzerland-Armenia Association lodged a criminal complaint against Mr Perinçek on account of
the statement made at the first event. The investigation was later expanded to cover the two other
oral statements as well. On 9 March 2007 the Lausanne District Police Court found him guilty of the
offence under Article 261 bis § 4 of the Swiss Criminal Code, holding in particular that his motives
appeared to be racist and nationalistic and that his statements did not contribute to the historical
debate. The court ordered him to pay 90 day-fines of 100 Swiss francs each, suspended for two
years, a fine of 3,000 Swiss francs, which could be replaced by 30 days’ imprisonment, and 1,000
Swiss francs in compensation to the Switzerland-Armenia Association for non-pecuniary damage.
Mr Perinçek appealed against the judgment, seeking to have it set aside and additional investigative
measures taken to establish the state of research and the positions of historians on the events of
1915 and the following years. The Criminal Cassation Division of the Vaud Cantonal Court dismissed
the appeal on 13 June 2007. The Federal Court dismissed a further appeal by Mr Perinçek in a
judgment of 12 December 2007.
Complaints, procedure and composition of the Court
Mr Perinçek complained that his criminal conviction and punishment for having publicly stated that
there had not been an Armenian genocide had been in breach of his right to freedom of expression
under Article 10. He also complained, relying on Article 7 (no punishment without law), that the
wording of Article 261 bis § 4 of the Swiss Criminal Code was too vague.
The application was lodged with the European Court of Human Rights on 10 June 2008. In a
judgment of 17 December 2013 a Chamber of the Court held, by five votes to two, that there had
been a violation of Article 10 of the Convention. The Swiss Government requested that the case be
referred to the Grand Chamber under Article 43 (referral to the Grand Chamber), and on 2 June
2014 the panel of the Grand Chamber accepted that request. A Grand Chamber hearing was held on
28 January 2015.
In the Grand Chamber proceedings, third-party comments were received from the Turkish
Government, who had exercised their right to intervene in the case (Article 36 § 1 of the
Convention). Third-party comments were also received from the Armenian and French
Governments, who had been given leave to intervene in the written procedure (Article 36 § 2). The
Armenian Government were in addition given leave to take part in the hearing. Furthermore, thirdparty
comments were received from the following non-governmental organisations and persons,
which had likewise been granted leave to intervene in the written procedure: (a) the Switzerland-
Armenia Association; (b) the Federation of the Turkish Associations of French-speaking Switzerland;
(c) the Coordinating Council of the Armenian Organisations in France (“CCAF”); (d) the Turkish
Human Rights Association, the Truth Justice Memory Centre and the International Institute for
Genocide and Human Rights Studies; (e) the International Federation for Human Rights (“FIDH”);
(f) the International League against Racism and Anti-Semitism (“LICRA”); (g) the Centre for
International Protection; and (h) a group of French and Belgian academics.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Dean Spielmann (Luxembourg), President,
Josep Casadevall (Andorra),
Mark Villiger (Liechtenstein),
Isabelle Berro (Monaco),
Işıl Karakaş (Turkey),
Ján Šikuta (Slovakia),
Päivi Hirvelä (Finland),
Vincent A. de Gaetano (Malta),
Angelika Nußberger (Germany),
Linos-Alexandre Sicilianos (Greece),
Helen Keller (Switzerland),
André Potocki (France),
Helena Jäderblom (Sweden),
Aleš Pejchal (the Czech Republic),
Johannes Silvis (the Netherlands),
Faris Vehabović (Bosnia and Herzegovina),
Egidijus Kūris (Lithuania),
and also Johan Callewaert, Deputy Grand Chamber Registrar.
Decision of the Court
As regards the scope of the case, the Court underlined that it was not required to determine
whether the massacres and mass deportations suffered by the Armenian people at the hands of the
Ottoman Empire from 1915 onwards could be characterised as genocide within the meaning of that
term under international law; unlike the international criminal courts, it had no authority to make
legally binding pronouncements on this point.
It was undisputed that Mr Perinçek’s conviction and punishment, together with the order to pay
compensation to the Switzerland-Armenia Association, had constituted an interference with the
exercise of his right to freedom of expression under Article 10. The Court did not find, as was argued
by the Swiss Government, that the interference could be justified under Article 16 of the
Convention, which provides that nothing in Article 10 shall be regarded as preventing the High
Contracting Parties from imposing restrictions on the political activity of aliens. Article 16 had never
been applied by the Court. It had to be borne in mind that clauses that permitted interference with
Convention rights had to be interpreted restrictively. The Court found that Article 16 should be
interpreted as only capable of authorising restrictions on activities which directly affected the
political process, which had not been the case here.
The Grand Chamber of the Court agreed with the Chamber that the interference with Mr Perinçek’s
right to freedom of expression had been prescribed by law within the meaning of Article 10 § 2. The
Court found in particular that – despite his submissions to the contrary – he could reasonably have
foreseen that his statements might result in criminal liability under Swiss law.
As regards the question whether the interference had pursued a legitimate aim, the Court was not
satisfied that it had been necessary for the “prevention of disorder”. However, like the Chamber, the
Grand Chamber of the Court found that the interference could be regarded as having been intended
“for the protection of the ... rights of others” within the meaning of Article 10 § 2. It noted that many
of the descendants of the victims of the events of 1915 and the following years, especially in the
Armenian diaspora, constructed their identity around the perception that their community had been
the victim of genocide. The Court thus accepted that the interference with Mr Perinçek’s rights had
been intended to protect that identity and thus the dignity of present-day Armenians.
Concerning the question whether the interference had been “necessary in a democratic society”
within the meaning of Article 10 § 2, the Court underlined that it was not required to determine
whether the criminalisation of the denial of genocide or other historical facts might in principle be
justified. It was only in a position to review whether or not the application of Article 261 bis § 4 of
the Swiss Criminal Code in Mr Perinçek’s case had been in conformity with Article 10. In the light of
the Court’s case-law, the dignity of Armenians was protected under Article 8 of the Convention. The
Court was thus faced with the need to strike a balance between two Convention rights, taking into
account the specific circumstances of the case and the proportionality between the means used and
the aim sought to be achieved.
In examining the nature of Mr Perinçek’s statements, the Court did not seek to establish whether
they could properly be characterised as genocide denial or justification for the purposes of the Swiss
Criminal Code. That question was for the Swiss courts to determine.
Mr Perinçek, speaking at public events to like-minded supporters, had made his statements as a
politician, taking part in a long-standing controversy which the Court had, in a number of cases
against Turkey, already accepted as relating to an issue of public concern. He had not expressed
contempt or hatred for the victims of the events of 1915 and the following years, noting that Turks
and Armenians had lived in peace for centuries. He had not called the Armenians liars, used abusive
terms with respect to them, or attempted to stereotype them. His strongly worded allegations had
been directed against the “imperialists” and their allegedly insidious designs with respect to the
Ottoman Empire and Turkey.
While in cases concerning statements in relation to the Holocaust, the Court had – for historical and
contextual reasons – invariably presumed that they could be seen as a form of incitement to racial
hatred, it did not consider that the same could be done in this case. The context did not require
automatically to presume that Mr Perinçek’s statements relating to the 1915 events promoted a
racist and antidemocratic agenda, and there was not enough evidence that this had been the case.
The Swiss courts had referred to the fact that he was a self-professed follower of Talaat Pasha, who
was historically the initiator of the massacres of 1915. However, the Swiss courts had not elaborated
on this point, and there was no evidence that Mr Perinçek’s membership in the so-called Talaat
Pasha Committee had been driven by a wish to vilify the Armenians.
In the Court’s opinion, Mr Perinçek’s statements, read as a whole and taken in their immediate and
wider context, could not be seen as a call for hatred, violence or intolerance towards the Armenians.
It followed that his statements, which concerned a matter of public interest, were entitled to
heightened protection under Article 10, and that the Swiss authorities had only had a limited room
for manoeuvre (“margin of appreciation”) to interfere with them.
Taking into account the historical experience of a Convention State concerned by a complaint under
Article 10 was particularly relevant with regard to the Holocaust. For the Court, the justification for
making its denial a criminal offence lay in the fact that such denial, in the historical context of the
States concerned, even if dressed up as impartial historical research, had to be considered as
implying anti-democratic ideology and anti-Semitism. The Article 10 cases concerning Holocaust
denial examined by the Court had been brought against Austria, Belgium, Germany and France. The
Court considered that Holocaust denial was especially dangerous in States which had experienced
the Nazi horrors and which could be regarded as having a special moral responsibility to distance
themselves from the mass atrocities that they had perpetrated or abetted, by, among other things,
outlawing their denial. By contrast, it had not been argued that there was a direct link between
Switzerland and the events that took place in the Ottoman Empire in 1915 and the following years.
There was moreover no evidence that at the time when Mr Perinçek had made his statements the
atmosphere in Switzerland had been tense and could have resulted in serious friction between Turks
and Armenians there.
The Court did not consider that Mr Perinçek’s criminal conviction in Switzerland could be justified by
the situation in Turkey, whose Armenian minority was alleged to suffer from hostility and
discrimination. When convicting him, the Swiss courts had not referred to the Turkish context. While
the hostility of some ultranationalist circles in Turkey towards the Armenians in that country could
not be denied, in particular in view of the assassination of the Turkish-Armenian writer and journalist
Hrant Dink in January 2007, possibly on account of his views about the events of 1915 and the
following years, this could hardly be regarded as a result of Mr Perinçek’s statements in Switzerland.
While the Court was aware of the immense importance attributed by the Armenian community to
the question whether the tragic events of 1915 and the following years were to be regarded as
genocide, it could not accept that Mr Perinçek’s statements at issue had been so wounding to the
dignity of the Armenians as to require criminal law measures in Switzerland. He had referred to
Armenians as “instruments” of the “imperialist powers”, which could be seen as offensive. However,
as could be seen from the overall tenor of his remarks, he did not draw from that conclusion that
they had deserved to be subjected to atrocities or annihilation. Coupled with the amount of time
that had elapsed since the events, this led the Court to the conclusion that his statements could not
be seen as having the significantly upsetting effect sought to be attributed to them.
The Court observed that there was a wide spectrum of positions among the member States as
regards legislation on the denial of historical events, from those States which did not criminalise
such denial at all to those which only criminalised denial of the Holocaust or the denial of Nazi and
communist crimes, and those which criminalised the denial of any genocide.2 The Court,
acknowledging this diversity, did not consider that the comparative law perspective should play a
significant part in its assessment, given that there were other factors with a significant bearing on
the breadth of the applicable room for manoeuvre. It was nevertheless clear that Switzerland, with
its criminalisation of the denial of any genocide, without the requirement that it be carried out in a
manner likely to incite violence or hatred, stood at one end of the comparative spectrum.
Moreover, there were no international treaties in force with respect to Switzerland that required in
clear and explicit language the imposition of criminal penalties on genocide denial as such. It was
true that Article 261 bis § 4 of the Swiss Criminal Code had been enacted in connection with
Switzerland’s accession to the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD). However, there was no indication that the clause which had served as the
basis for Mr Perinçek’s conviction was specifically required under the CERD, or under other
international law rules, whether treaty-based or customary.
Furthermore, the Court noted that in other cases under Article 10 the interference had consisted of,
for instance, a restriction on the dissemination of a publication. The very fact that Mr Perinçek had
been criminally convicted was significant in that it was one of the most serious forms of interference
with the right to freedom of expression.
Based on all of the above factors, the Court concluded that it had not been necessary, in a
democratic society, to subject Mr Perinçek to a criminal penalty in order to protect the rights of the
Armenian community at stake in this case. There had accordingly been a breach of Article 10 of the
2. See paragraphs 255-57 of the judgment.
The Court joined, by a majority, the question whether to apply Article 17 of the Convention
(prohibition of abuse of rights) to its examination of the merits of the complaint under Article 10.
Under Article 17, the Court can declare an application inadmissible if it considers that the applicant
has relied on the provisions of the Convention to engage in an abuse of rights. It followed from the
Court’s finding under Article 10 that there were no grounds to apply Article 17.
Furthermore, the Court found, by a majority, that the complaint under Article 7 amounted to a
restatement of the claims under Article 10. There was therefore no need for a separate examination
of that complaint.
Article 41 (just satisfaction)
The Court held, by a majority, that the finding of a violation of Article 10 constituted in itself
sufficient just satisfaction for any non-pecuniary damage suffered by Mr Perinçek. The Court further
dismissed, unanimously, the remainder of his claim for just satisfaction.
Judge Nußberger expressed a partly concurring and partly dissenting opinion. Judges Spielmann,
Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris expressed a joint dissenting opinion. Judge
Silvis, joined by Judges Casadevall, Berro and Kūris expressed an additional dissenting opinion. These
opinions are annexed to the judgment.
A la guerre comme a la guerre или вторая редакция Забугорнова