CEDH · CASELAW;CLIN;ENG — 15 octobre 2015

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Switzerland [GC] - 27510/08 Judgment 15.10.2015 [GC] Article 10 Article 10-1 Freedom of expression Criminal conviction for rejecting legal characterisation of atrocities committed by Ottoman Empire against the Armenian people from 1915 as “genocide”: violation Facts – The applicant is a doctor of laws and chairman of the Turkish Workers’ Party. In 2005 he took part in various conferences during which he publicly denied that there had been any genocide of the Armenian people by the Ottoman Empire in 1915 and subsequent years. In particular, he described the idea of an Armenian genocide as an “international lie”. The Switzerland-Armenia Association lodged a criminal complaint against the applicant on account of his comments. The applicant was ordered to pay ninety day-fines of 100   Swiss francs (CHF), suspended for two years, a fine of CHF 3,000, which could be replaced by thirty days’ imprisonment, and the sum of CHF 1,000 in compensation to the Switzerland-Armenia Association for non-pecuniary damage. In a judgment of 17 December 2013 (see Information Note   169 ) a Chamber of the Court held by five votes to two that there had been a violation of Article   10 of the Convention. On 2   June 2014 the case was referred to the Grand Chamber at the Government’s request. Law – Scope of the case: Not only was the Court 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 in international law; it also had no authority to make legally binding pronouncements, one way or the other, on this point. Article 17: The decisive point – whether the applicant’s statements had sought to stir up hatred or violence, and whether by making them he had 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 – was not immediately clear and overlapped with the question whether the interference with the applicant’s right to freedom of expression had been “necessary in a democratic society”. Accordingly, the question of the application of Article   17 had to be joined to the merits of the applicant’s complaint under Article   10. Conclusion : question of the application of Article   17 joined to the merits (fourteen votes to three). Article 10: The applicant’s conviction and punishment, coupled with the order to pay damages to the Switzerland-Armenia Association, constituted an interference with the exercise of his right to freedom of expression. The Court nevertheless decided to examine first whether Article   16 of the Convention was applicable in the present case. (a)     Applicability of Article   16   – Although the applicant in the present case was indeed an alien, the Court did not find that Article   16 could provide a justification for the interference in question. While the European Commission of Human Rights had noted that this Article reflected an outdated understanding of international law, the Council of Europe’s Parliamentary Assembly had called for it to be repealed. It had never been applied by the former Commission or the Court, and unbridled reliance on it to restrain the possibility for aliens to exercise their right to freedom of expression would run against the Court’s rulings in cases in which aliens had been found to be entitled to exercise this right without any suggestion that it could be curtailed by reference to Article   16. Indeed, the Court had specifically noted that, since the right to freedom of expression was guaranteed by Article 10 §   1 of the Convention “regardless of frontiers”, no distinction could be drawn between its exercise by nationals and foreigners*. Bearing in mind that clauses permitting interference with Convention rights were to be interpreted restrictively, the Court found that Article   16 should be construed as only capable of authorising restrictions on “activities” that directly affected the political process. As that was not the case in this instance, Article   16 could not be prayed in aid by the Swiss Government. In conclusion, Article 16 of the Convention had not authorised the Swiss authorities to restrict the applicant’s exercise of the right to freedom of expression in this case. (b)     “ Prescribed by law ”   – The applicant could reasonably have foreseen – if need be, with appropriate advice – that his statements in relation to the events of 1915 and the following years might result in criminal liability under Article 261 bis §   4 of the Criminal Code. The fact that an earlier prosecution in relation to similar statements had resulted in an acquittal did not alter that finding. The Swiss courts could not be blamed for the absence of more ample case-law concerning the determination of whether these events had amounted to “a genocide” within the meaning of Article 261 bis §   4. Their approach in the applicant’s case could reasonably have been expected, especially in view of the intervening adoption by the Swiss National Council of a motion recognising the events in question as genocide. This approach did not amount to a sudden and unforeseeable change in case-law or to an extension of the scope of a criminal statute by analogy. The interference with the applicant’s right to freedom of expression had thus been sufficiently foreseeable, and therefore “prescribed by law” within the meaning of Article 10 §   2 of the Convention. (c)     Legitimate aims (i)     “ Prevention of disorder ”   – The Court found that the expressions “the prevention of disorder” and “ la défense de l’ordre ” in the English and French texts of Article 10 §   2 could best be reconciled by means of a less extensive interpretation since the words used in the English text appeared to be only capable of a narrower meaning. Accordingly, as the Government’s arguments relating to, inter alia , the legal interests protected by Article 261 bis related to the broader meaning, they were of little relevance. Furthermore, the Government had not demonstrated that in acting to penalise the applicant’s statements, the Swiss authorities had been of the view that they had led to disorder. There was no evidence that any confrontations had in fact taken place at the two rallies referred to at which the applicant had been a speaker, and which had taken place about a year before the events leading to the applicant’s conviction. Above all, none of those aspects had been mentioned by the Swiss courts in their decisions in the criminal case against the applicant. Lastly, there was no evidence that at the time of the public events at which the applicant had made his statements the Swiss authorities had perceived those events as capable of leading to public disturbances and had attempted to regulate them on that basis, or that statements of this kind could have risked unleashing serious tensions and giving rise to clashes. Accordingly, the interference with the applicant’s right to freedom of expression had not pursued the aim of “prevention of disorder”. (ii)     “ Protection ... of the rights of others ”   – Bearing in mind that many of the descendants of the victims and survivors of the events in question – especially those in the Armenian diaspora – constructed their identity around the perception that their community had been the victim of genocide, the Court accepted that the interference with the statements in which the applicant had denied that the Armenians had suffered genocide had been intended to protect that identity, and thus the dignity of present-day Armenians. At the same time, it could hardly be said that by disputing the legal characterisation of the events, the applicant had cast the victims in a negative light, deprived them of their dignity or diminished their humanity. Nor did it appear that he had directed his accusation that the idea of the Armenian genocide was an “international lie” towards the victims or their descendants. However, the Court could not overlook the fact that at one of the events where he had spoken, the applicant had referred to the Armenians involved in the events as “instruments” of the “imperialist powers”, and accused them of “carrying out massacres of the Turks and Muslims”. That being so, the interference had also been intended to protect the dignity of those persons and thus the dignity of their descendants. The interference with the applicant’s right to freedom of expression could therefore be regarded as having been intended “for the protection of the … rights of others”. (d)     Necessity of the interference in a democratic society   – The Court was not required to determine whether the criminalisation of the denial of genocides or other historical facts could in principle be justified. Being constrained by the facts of the case, it was limited to reviewing whether or not the application of Article 261 bis §   4 of the Criminal Code in the applicant’s case had been “necessary in a democratic society” within the meaning of Article 10 §   2 of the Convention. It had to be determined whether it had been necessary to protect the “rights of others” at issue by way of criminal-law measures. This concerned the rights of Armenians to respect for their and their ancestors’ dignity, including their right to respect for their identity, which was constructed around the understanding that their community had suffered genocide. In the light of the Court’s case-law, in which it had accepted that Article   8 of the Convention, under its “private life” heading, was applicable both to ethnic identity and to the reputation of ancestors, the Court agreed that these were rights protected under that Article. The Court was thus faced with the need to strike a balance between two Convention rights: the right to freedom of expression under Article   10 and the right to respect for private life under Article   8. (i)     Nature of the applicant’s statements – The applicant’s statements had touched upon historical and legal issues, but the context in which they had been made – at public events where the applicant was addressing like-minded supporters – showed that he had been speaking as a politician, not as a historical or legal scholar. He had taken part in a long-standing controversy that the Court had already accepted, in a number of cases against Turkey, as relating to an issue of public concern and described as a “heated debate, not only within Turkey but also in the international arena”. Moreover, while being fully aware of the acute sensitivities attached by the Armenian community to the issue in relation to which the applicant had spoken, the Court, taking into account the overall thrust of his statements, did not perceive them as a form of incitement to hatred or intolerance. The applicant had not expressed contempt or hatred for the victims of the events in question, having noted 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. Could the statements in issue 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 cases that had come before the former Commission and the Court concerning statements in relation to the Holocaust, this had, for historical and contextual reasons, invariably been presumed. However, the Court did not consider that the same could be done in this case, where the applicant had spoken in Switzerland about events which had taken place on the territory of the Ottoman Empire about 90   years previously. While it could not be ruled out that statements relating to those events could likewise promote a racist and anti-democratic agenda, and could do so through innuendo rather than directly, the context did not require this to be automatically presumed, and there was not enough evidence that this had been so in the present case. Furthermore, the attempts by the Government and some of the third parties to portray the applicant as an extremist wont to exercise his right to freedom of expression in an irresponsible and dangerous manner could not be reconciled with the fact that in two cases brought by him against Turkey, the Court had found violations on account of interferences with his exercise of that right**. The fact that the applicant’s statements had concerned the Armenians as a group could not in itself serve as a basis to infer a racist agenda since, in view of the definition of the term “genocide” in international law, any statements relating to the propriety of classifying a historical event in that way were bound to concern a particular national, ethnical, racial or religious group. In the Court’s view, the applicant’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. They had admittedly been virulent and reflected an intransigent position on the applicant’s part, but it should be recognised that they appeared to include an element of exaggeration as they had sought to attract attention. It followed that the applicant’s statements, which concerned a matter of public interest, had been entitled to heightened protection under Article   10 of the Convention, and that the Swiss authorities had had only a limited margin of appreciation to interfere with them. (ii)     Context of the interference (α)     Geographical and historical factors The Court’s case-law showed that, in view of the historical context in the States concerned, Holocaust denial, even if dressed up as impartial historical research, invariably connoted an anti-democratic and anti-Semitic ideology. By contrast, it had not been argued that there was a direct link between Switzerland and the events that had taken place in the Ottoman Empire in 1915 and the following years. The only such link could come from the presence of an Armenian community on Swiss soil, but it was a tenuous one. The controversy sparked by the applicant was external to Swiss political life, given that he was a foreigner and would return to his country. There was, moreover, no evidence that at the time when the applicant had made his statements the atmosphere in Switzerland was tense and could result in serious friction between Turks and Armenians there. Nor could the applicant’s criminal conviction in Switzerland be justified by the situation in Turkey, whose Armenian minority was alleged to suffer from hostility and discrimination. Neither the Swiss courts nor the Government had referred to the Turkish context. The Government’s attempt to justify the interference by reference to Article   16 of the Convention showed that they were chiefly concerned with the domestic political context. It was true that at present, especially with the use of electronic means of communication, no message could be regarded as purely local. It was also laudable, and consonant with the spirit of universal protection of human rights, for Switzerland to seek to defend the rights of victims of mass atrocities regardless of the place where they had taken place. However, the broader concept of proportionality inherent in the phrase “necessary in a democratic society” required a rational connection between the measures taken by the authorities and the aim they had sought to realise through these measures; in other words, the measures had to have been reasonably capable of producing the desired result. It could hardly be said that any hostility that existed towards the Armenian minority in Turkey was the product of the applicant’s statements in Switzerland, or that the applicant’s criminal conviction in Switzerland had protected that minority’s rights in any real way or made it feel safer. There was, moreover, no evidence that the applicant’s statements had in themselves provoked hatred towards the Armenians in Turkey, or that he had on other occasions attempted to instil hatred against Armenians there. Lastly, there was no evidence that the applicant’s statements had had a direct effect on the undeniable hostility of some ultranationalist circles in Turkey towards the Armenians in that country, or on other international contexts, such as France, which was home to the third-largest community in the Armenian diaspora. (β)     The time factor A considerable amount of time – about 90   years – had elapsed between the applicant’s statements and the tragic events to which he had referred, and at the time when he had made the statements there had surely been very few survivors of these events. While this was still a live issue for many Armenians, especially those in the diaspora, the time element could not be disregarded. Whereas events of relatively recent vintage could be so traumatic as to warrant, for a period of time, an enhanced degree of regulation of statements relating to them, the need for such regulation was bound to recede with the passage of time. (iii)     Extent to which the applicant’s statements affected the rights of the members of the Armenian community – The Court was aware of the immense importance attached by the Armenian community to the question whether the tragic events of 1915 and the following years were to be regarded as genocide, and of that community’s acute sensitivity to any statements bearing on that point. However, it could not accept that the applicant’s statements at issue in this case had been so wounding to the dignity of the Armenians who had suffered and perished in these events and to the dignity and identity of their descendants as to require criminal-law measures in Switzerland. The sting of the applicant’s statements had not been directed towards those persons but towards the “imperialists” whom he regarded as responsible for the atrocities. This, coupled with the amount of time that had elapsed since the events to which the applicant had been referring, led the Court to the conclusion that his statements could not be seen as having had the significantly upsetting effect sought to be attributed to them. Nor was the Court persuaded that the applicant’s statements – in which he had denied that the events of 1915 and the following years could be classified as genocide but had not disputed the actual occurrence of massacres and mass deportations – could have had a severe impact on the Armenians’ identity as a group. Statements that contested, even in virulent terms, the significance of historical events that carried a special sensitivity for a country and touched on its national identity could not in themselves be regarded as seriously affecting their addressees. The Court did not rule out that there might exist circumstances in which, in view of the particular context, statements relating to traumatic historical events could result in significant damage to the dignity of groups affected by such events, for instance if they were particularly virulent and disseminated in a form that was impossible to ignore. The only cases in which the former Commission and the Court had accepted the existence of such circumstances without specific evidence were those relating to Holocaust denial. However, as already noted, this could be regarded as stemming from the very particular context in which those cases had unfolded. Lastly, the applicant’s statements had been made at three public events. Their impact was thus bound to have been rather limited. (iv)     Existence or lack of consensus among the High Contracting Parties   – In the past few years there had been fluctuating developments in this domain in the legal systems of the High Contracting Parties. Some High Contracting Parties did not criminalise the denial of historical events. Others, using various methods, criminalised only the denial of the Holocaust and Nazi crimes. A third group criminalised the denial of Nazi and communist crimes. A fourth group criminalised the denial of any genocide. At European Union level, the applicable provisions had a wide scope but at the same time linked the requirement to criminalise genocide denial to the need for it to be capable of having tangible negative consequences. The Court acknowledged this diversity. It was nevertheless clear that, by criminalising the denial of any genocide, without the requirement for such denial to be likely to incite to violence or hatred, Switzerland stood at one end of the comparative spectrum. In those circumstances, and given that in the present case there were other factors which had a significant bearing on the breadth of the applicable margin of appreciation, the comparative-law position could not play a weighty part in the Court’s conclusion with regard to this issue. (v)     Could the interference be regarded as required under Switzerland’s international law obligations? – Having established that the applicant’s statements could not be seen as a form of incitement to hatred or discrimination, the Court needed only to determine whether Switzerland had been required under its international law obligations to criminalise genocide denial as such. There were no international treaties in force in respect of Switzerland that required in clear and explicit language the imposition of criminal penalties on genocide denial as such. Nor did this appear to be required under customary international law. It could not therefore be said that the interference with the applicant’s right to freedom of expression had been required, let alone justified, by Switzerland’s international obligations. (vi)     Method employed by the Swiss courts to justify the applicant’s conviction   – From the analysis carried out by the domestic courts, it was unclear whether the applicant had been penalised for disagreeing with the legal classification ascribed to the events of 1915 and the following years or with the prevailing views in Swiss society on this point. In the latter case, the applicant’s conviction had to be seen as inimical to the possibility, in a “democratic society”, of expressing opinions that diverged from those of the authorities or any sector of the population. (vii)     Severity of the interference   – The form of interference at issue – a criminal conviction that could even result in a term of imprisonment – was a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies. The same applied here: what mattered was not so much the severity of the applicant’s sentence but the very fact that he had been criminally convicted, which was one of the most serious forms of interference with the right to freedom of expression. (vii).     Balancing the applicant’s right to freedom of expression against the Armenians’ right to respect for their private life – An interference with the right to freedom of expression that took the form of a criminal conviction inevitably required detailed judicial assessment of the specific conduct sought to be punished. In this type of case, it was normally not sufficient for the interference to have been imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general terms; what was required instead was that it had been necessary in the specific circumstances. However, a perusal of the reasons for the Swiss courts’ judgments in the applicant’s case did not show that they had paid any particular heed to this balance. The Court therefore had to carry out the balancing exercise itself. Taking into account all the elements analysed above – that the applicant’s statements had related to a matter of public interest and had not amounted to a call for hatred or intolerance, that the context in which they had been made had not been marked by heightened tensions or special historical overtones in Switzerland, that the statements could not be regarded as having affected the dignity of the members of the Armenian community to the point of requiring a criminal-law response in Switzerland, that there had been no international law obligation for Switzerland to criminalise such statements, that the Swiss courts appeared to have censured the applicant for voicing an opinion that diverged from the established ones in Switzerland, and that the interference had taken the serious form of a criminal conviction – the Court concluded that it had not been necessary in a democratic society to subject the applicant to a criminal penalty in order to protect the rights of the Armenian community at stake in the present case. Conclusions : violation of Article   10 (ten votes to seven); Article   17 not applicable (thirteen votes to four). Article 41: finding of a violation sufficient in itself for non-pecuniary damage; claim for pecuniary damage rejected. (Concerning Article 17, see Leroy v.   France , 36109/03, 2   October 2010, Information Note   112 ; concerning Article   16, see Piermont v.   France , 15773/89 and 15774/89, 27   April 1985) * Cox v. Turkey , 2933/03, 20   May 2010, Information Note   130 . ** Socialist Party and Others v. Turkey , 21237/93 , 25   May 1998, and Perinçek v.   Turkey , 46669/99 , 21   June 2005.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes