LONDON—After the ruling Thursday by the European Court of Human Rights on the Perincek vs. Switzerland case, in which the court maintained the legality of laws criminalizing genocide denial, yet upheld the defendant’s right to freedom of speech, the lead counsels representing Armenia, Geoffrey Robertson and Amal Clooney issued the following statement:
We are pleased that the European Court of Human Rights today endorsed our argument on behalf of the Government of Armenia, which intervened in the case between Dogu Perincek and Switzerland. The decision is a victory for Armenia.
Today the European Court ruled that the applicant’s freedom of speech should not have been restrained because it was not likely to incite violence or racial hatred. Thus Perincek should not have been prosecuted by the Swiss authority because his rant, in the Turkish language, would have had no impact at all on social harmony and race relations in Switzerland.
Armenia intervened in the case for one reason: the lower court had cast doubt on the fact that a genocide against the Armenian people occurred in 1915. As counsel we sought to correct this grave error, and the Grand Chamber has done so. Today’s judgment did not dispute the fact of the Armenian genocide: ten judges said the question should not have been addressed at all whilst seven stated that “the Armenian genocide is a clearly established historic fact”.
The judgment also upholds the Armenians’ right under European law to have their dignity respected and protected, including by recognition of a communal identity forged through suffering from the annihilation of over half their race by the Ottoman Turks (see para 227).
The court’s decision upholding the importance of freedom of expression has important consequences for Turkey, which has the worst record of any state before the European Court on free speech. Turkey can no longer justify prosecuting those like Hrant Dink who are accused of “insulting Turkishness” contrary to article 301 of the Penal Code by writing about the reality of the Armenian genocide. These prosecutions are plainly contrary to the free speech guarantee under article 10 of the European Convention on Human Rights as interpreted in the Perincek case. We call on Turkey to abolish article 301 and cease malicious prosecutions pursued on its terms.
Perincek is a provocateur who should not have been made the martyr that he was so keen to become. We note that the Court rejected his demand for 120,000 euro compensation, and awarded him nothing – not even his own legal fees.
This case has already been misrepresented in the British press. For example The Telegraph characterizes the judgment in its headline as being “… a blow to Amal Clooney…”. Ms Clooney and Mr Robertson appeared for Armenia as a third party, which was concerned to ensure that the Armenian genocide was not put in doubt by Europe’s human rights court. They took no position on Perincek’s guilt or innocence. The only ‘blow’ was to the defendant state – i.e. Switzerland, the prosecuting state which they did not represent, and to Turkey which cannot now quote the European Court when it seeks to cast doubt on the Armenian genocide.