Swiss Genocide Denial Law Violates Freedom of Expression says European Court of Human Rights

The controversial Swiss genocide denial law has been held by the European Court of Human Rights to violate the protection of freedom of expression enshrined in article 10 of the European Convention on Human Rights. The case concerned prosecution by Swiss courts of Doğu Perinçek, a Turkish national who had described the Armenian genocide as an ‘international lie’. Two members of the seven-judge Chamber dissented. The Swiss government can apply for leave for the matter to be reconsidered by the 17-judge Grand Chamber.

The Swiss legislation makes it a criminal offence to violate the human dignity of a person or a group of persons because of their race, ethnic identity or religion by denying, grossly minimising or seeking to justify ‘a genocide or other crimes against humanity’. The Court said that reference to ‘a genocide’ may not be sufficiently precise (para. 71), although it said that under the circumstances of the case this did not raise a problem in terms of the foreseeability of criminal liability.

The European Court referred to the complexity of the legal debates about the definition of genocide. It disagreed with the Swiss Court that there was a ‘general consensus’ on this as far as the Armenian genocide is concerned. (para. 116). It went on to say that ‘il est même douteux qu’il puisse y avoir un « consensus général », en particulier scientifique, sur des événements tels que ceux qui sont en cause ici, étant donné que la recherche historique est par définition controversée et discutable et ne se prête guère à des conclusions définitives ou à des vérités objectives et absolues’ (para. 117).

Note that the decision is as yet only available in French. Google translate provides a pretty good rendition: ‘it is doubtful that there can be a "general consensus", especially scientific, on events such as those at issue here, since historical research is controversial and debatable definition does not lend itself to definitive conclusions or objective truths and absolute’.

The Court also noted that in prosecutions of other ‘deniers’, the debate had focussed on the facts, such as the existence of gas chambers, and not the legal qualification of them.

The Court cites with approval a paragraph in General Comment 34 of the Human Rights Committee that states: ‘Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.’ The footnote to this paragraph refers to the Faurisson v. France decision of the Committee which, as I read it, actually says the opposite. My suspicion is that the Human Rights Committee changed its mind on the point as it was debating General Comment 34.