European Ruling Ignites Freedom Debate

• by Ray Smith (bern, switzerland)
• Saturday, February 15, 2014
• Inter Press Service

The court ruled in December that Switzerland violated the right to freedom of speech of the Turkish national Doğu Perinçek by convicting him for calling the idea of an Armenian genocide an "international lie".

In 2007, a court in the Swiss Canton of Vaud had found Perinçek guilty of racial discrimination as defined by Section 261 of the Swiss Criminal Code, ruling that the Armenian genocide was a proven historical fact. Already in 2003, the Swiss National Council had acknowledged the Armenian genocide.3

Perinçek subsequently appealed in Switzerland's Federal Court, which dismissed his claims. After that, Perinçek took his case to the ECHR in Strasbourg.

In its ruling, the ECHR found that Perinçek's conviction by the Swiss court was wrong, as it violated Article 10 of the European Convention of Human Rights on freedom of expression. The court argued that Perinçek had never questioned the massacres and deportations perpetrated by the Ottoman Empire during the First World War, but had denied their characterisation as "genocide". He didn't mean to incite hatred against the Armenian people, the ECHR pointed out.

In fact, Perinçek's view corresponds with Turkey's official stance that is widely shared by the Turkish public, all main political parties as well as the state-run Historical Society. Turkey's Foreign Ministry called the ECHR decision "a victory for the rule of law."

Schools and universities in Turkey teach that the killings of Armenians were neither deliberate, nor orchestrated by the Ottoman leadership in Istanbul. Further, Turkish historians doubt that up to 1.5 million Armenians had died, as many Western scholars claim.

However, Turkish estimates vary, starting around 10,000 Armenian casualties. Turkish historians argue that most of the death occurred due to illness and malnutrition.

Beyond Turkey's eastern border, lobbying for worldwide genocide recognition is a fundamental part of Armenia's foreign policy. Until today, diverging interpretations of what happened in Armenia during and after the First World War strain bilateral relations.

The ECHR highlighted that it wasn't called upon to address either the veracity of the massacres and deportations perpetrated against the Armenian people or the appropriateness of legally characterising those acts as "genocide". It doubted that there could be a consensus on the issue.

The Switzerland-Armenia Association (SAA) said it was "deeply disappointed and appalled by the ECHR verdict."

Dominique de Buman, Swiss national councillor and co-president of the SAA told IPS: "The ECHR ruling isn't just a setback for human dignity, but also contradicts a European Council Framework Decision that ordered member states to ensure that publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes were penalised."

Such framework decisions do not pose a legal basis for the ECHR, however. De Buman also referred to the UN Convention on the Prevention and Punishment of the Crime of Genocide. "Don't forget that the convention was adopted in reaction to the Holocaust as well as the Armenian genocide," he told IPS.

The ECHR ruling has sparked a debate in Switzerland on whether or not the government should appeal the decision and if and how Swiss anti-racism legislation may be amended.

Councillor De Buman told IPS he was optimistic that an appeal could lead to a further examination of the case, as the ECHR ruling wasn't unanimous: "Two of the seven judges had expressed a joint concurring opinion. They stated that there existed an international consensus regarding the characterisation of the massacres against the Armenian people."

Judges András Sajó and Guido Raimondi would welcome a Swiss appeal to the Grand Chamber, as so far the court has never taken a view on the massacres and deportations of the Armenians. "It's our symbolic and moral obligation to define and qualify these events," they wrote. Switzerland's Federal Office of Justice hasn't yet taken a decision in that regard.

The ECHR ruling plays into the hands of right-wing groups such as the Swiss People's Party (SVP) who have repeatedly tried to knock down the country's anti-racism legislation. Consequently, the party's long-time leader Christoph Blocher demanded a change of the criminal code. Legally, the ECHR ruling doesn't force Switzerland to amendments.

Silvia Bär, the SVP's secretary general, told IPS that the party is preparing a parliamentary request to specify or even abolish Swiss anti-racism legislation. "We reject racism. However, the current application of the legislation is getting increasingly absurd and incorrectly limits the right to freedom of expression."

According to Bär, the anti-racism legislation is being misused to discipline and sanction unwelcome opinions. In addition, the SVP demands that Switzerland resigns from the International Convention on the Elimination of Racial Discrimination and that it dissolves the Federal Commission against Racism (EKR).

Martine Brunschwig Graf, National Councillor for the Liberals and President of the EKR has doubts about these intentions. "The ECHR ruling is complex and doesn't put the Swiss anti-racism paragraph in question," she told IPS. From 1995 to 2012, Swiss courts have sentenced accused persons in 310 cases under that paragraph.

Brunschwig Graf calls the legislation an indispensable instrument: "The fight against racism requires prevention at all levels, but also repression if certain limits are surpassed."

Among the other parties, the Swiss anti-racism legislation enjoys broad support. Hansjörg Fehr of the Social Democrats told the Swiss national radio that if the criminal code was to be changed, then "we need a passage that explicitly punishes the denial of the Armenian genocide."

The debate is expected to ignite at the next parliamentary session in March.

© Inter Press Service (2014) — All Rights ReservedOriginal source: Inter Press Service

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