Application Number 27510/08
European Court of Human Rights
The case concerned the criminal conviction of the applicant after he publically challenged the occurrence of the Armenian genocide. The applicant had described the genocide as an ‘international lie’ at various conferences in Switzerland. The ECtHR found that he had not committed an abuse of his rights within the meaning of Article 17 of the Convention and that there was a violation of Article 10.
Theme(s): Genocide Denial (Armenian)
Date: 15 October 2015
Description of applicant(s): Chairman of the Turkish Workers’ Party
Brief description of facts: The case concerned the criminal conviction of the applicant after he publically challenged the occurrence of the Armenian genocide. The applicant had described the genocide as an ‘international lie’ at various conferences in Switzerland. He was charged and ordered to pay a fine and damages to the Switzerland-Armenia Association.
(Alleged) target(s) of speech: Armenians
The Court’s assessment of the impugned speech: The Court found that the applicant was discussing a matter of public interest and his statements did not constitute a call for hatred or intolerance. It further considered that the context in which he made the statements was not marked by heightened tensions and that these could not be regarded as affecting the dignity of Armenians to the point of enforcing criminal law.
Important paragraph(s) from the judgment:
Para.115: Since the decisive point under Article 17 – whether the applicant’s statements sought to stir up hatred or violence, and whether by making them he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it – is not immediately clear and overlaps with the question whether the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”, the Court finds that the question whether Article 17 is to be applied must be joined to the merits of the applicant’s complaint under Article 10 of the Convention
Para.233: While being fully aware of the acute sensitivities attached by the Armenian community to the issue in relation to which the applicant spoke, the Court, taking into account the overall thrust of his statements, does not perceive them as a form of incitement to hatred or intolerance. The applicant did not express 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, and suggesting – a theory which is immaterial in the present context – that both had fallen victim to “imperialist” machinations. He did not call the Armenians liars, use abusive terms with respect to them, or attempt to stereotype. His strongly worded allegations were directed against the “imperialists” and their allegedly insidious designs with respect to the Ottoman Empire and Turkey.
Para.234: The next question is whether the statements could nevertheless be seen as a form of incitement to hatred or intolerance towards the Armenians on account of the applicant’s position and the wider context in which they were made. In the cases concerning statements in relation to the Holocaust that have come before the former Commission and the Court, this has, for historical and contextual reasons, invariably been presumed (see paragraphs 209 and 211 above). However, the Court does not consider that the same can be done in this case, where the applicant spoke in Switzerland about events which had taken place on the territory of the Ottoman Empire about ninety years previously.
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para.97: The salient question was whether these two forms of expression were “hate speech” as outlined in this Court’s case-law. Mere denial was not, for it could not in itself give rise to a climate of hostility towards a group that had been the victim of a genocide whose reality was disputed. It could therefore only be prohibited if it was in fact conducive to an attitude of hostility towards such a group – all the more because mere conclusions about the existence or otherwise of specific acts, not accompanied by value judgments about those acts or their illegality, fell also within the scope of academic freedom, which was constitutionally entitled to an even higher degree of protection.
In this long judgment, there is a section entitled ‘calls to violence and hate speech’:
Para.204: The Court has been called upon to consider the application of Article 10 of the Convention in a number of cases concerning statements, verbal or non-verbal, alleged to stir up or justify violence, hatred or intolerance. In assessing whether the interference with the exercise of the right to freedom of expression of the authors, or sometimes publishers, of such statements was “necessary in a democratic society” in the light of the general principles formulated in its case-law (see paragraphs 196-97 above), the Court has had regard to several factors.
Para. 205: One of them has been whether the statements were made against a tense political or social background; the presence of such a background has generally led the Court to accept that some form of interference with such statements was justified. Examples include the tense climate surrounding the armed clashes between the PKK (Workers’ Party of Kurdistan, an illegal armed organisation) and the Turkish security forces in south-east Turkey in the 1980s and 1990s the atmosphere engendered by deadly prison riots in Turkey in December 2000 and problems relating to the integration of non-European and especially Muslim immigrants in France; and the relations
with national minorities in Lithuania shortly after the re-establishment of its independence in 1990.
Para.206: Another factor has been whether the statements, fairly construed and seen in their immediate or wider context, could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance. In assessing that point, the Court has been particularly sensitive towards sweeping statements attacking or casting in a negative light entire ethnic, religious or other groups, all of which concerned generalised negative statements about non-European and in particular Muslim immigrants.