Lawyers Geoffrey Robertson and Amal Clooney: ECHR judgment victory for Armenia

  After the October 15 ruling by the European Court of Human Rights (ECHR) 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 came out with a joint statement.  

The lead counsels said they were pleased that the European Court of Human Rights endorsed their 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," Robertson and Clooney said.  

"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," the lawyers said in the statement.   A hearing on the "Perincek vs. Switzerland" case was held at the Strasbourg court's 17- member Grand Chamber on January 28.  In 2007, the Swiss court had convicted Dogu Perincek under Article 216 of the Criminal Code for denying the Armenian Genocide, subjecting him to financial and criminal liability. The Court of Appeals of Vaud Canton and the Federal Supreme Court had denied the appeal submitted against the given verdict. On December 17, 2013, the ECHR ruled in favor of Perincek's lawsuit that was filed against Switzerland, according to which Swiss courts had violated Perincek's right to freedom of speech.  On March 11, Switzerland's Federal Office of Justice had informed that Switzerland was preparing to appeal to the European Court of Human Rights (ECHR) with the demand for the Grand Chamber to reconsider Perincek's case. The ECHR had sent the case to the Grand Chamber prior to March 17. On August 25, Armenia filed an application to participate in the trial. Turkey had also filed an application to participate.  Armenia participated in the hearings as a third party. 

On October 15 2015, the Grand Chamber of the European Court of Human Rights delivered a judgment on the case of Perincek v.  Switzerland.  

The judgment is as follows: "In today's Grand Chamber judgment in the case of Perincek v. Switzerland the European Court of Human Rights held, by a majority, that there had been: a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.  

The case concerned the criminal conviction of a Turkish politician for publicly expressing the view, in Switzerland, that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire in 1915 and the following years had not amounted to genocide. Being aware of the great importance attributed by the Armenian community to the question whether those mass deportations and massacres were to be regarded as genocide, the European Court of Human Rights held that the dignity of the victims and the dignity and identity of modernday Armenians were protected by Article 8 (right to respect for private life) of the Convention.  

The Court therefore had to strike a balance between two Convention rights - the right to freedom of expression and the right to respect for private life -, taking into account the specific circumstances of the case and the proportionality between the means used and the aim sought to be achieved.  The Court concluded that it had not been necessary, in a democratic society, to subject Mr Perincek to a criminal penalty in order to protect the rights of the Armenian community at stake in the case." To note, Switzerland not only recognized the Armenian Genocide but also adopted a law penalizing the denial of the Armenian Genocide.