FIDH intervenes in the case of Perinçek v
Switzerland before the Grand Chamber of the European Court of Human Rights and
calls upon the Court to strike a balance between freedom of expression and the
fight against hate speech.

Paris-Strasbourg, 28
January 2015. In an international
context where freedom of expression is increasingly threatened, the Perinçek v. Switzerland case offers the European Court of Human Rights
a rare opportunity to settle the dilemma between freedom of expression and the
fight against hate speech, especially the latter involves negationism. Given
the importance of this issue, FIDH has intervened in the case by submitting
written observations as a third-party intervenor stating that the negationist
discourse on the Armenian genocide and the supporting hate rhetoric constitute
an undeniable risk of violence and therefore can justify a restriction to
freedom of expression.

“In the light of an
inconsistent European case law which is the source of uncertainty that in turn
jeopardises the unimpeded formation of ideas and democratic debate, the Court
is called upon to formally define the conventional principles that should
govern them and the criteria for interpretations that staunchly protect freedom
of expression and historical discussion without allowing negationist and
hateful discourse to prosper and enjoy impunity” said Karim Lahidji, President of FIDH.

A Turkish national, Mr. Perinçek, who was
sentenced by the Swiss courts for racial discrimination after having publicly
denied, at various conferences, the existence of any genocide perpetrated by
the Ottoman Empire against the Armenian people in 1915, appealed to the
European Court of Human Rights which ruled in his favour and concluded that his
right to freedom of expression, which is protected by the Convention, had been
violated. To dismiss the charge of rights abuse – which would be the
only justification for limiting rights and freedoms protected by the European
Convention on Human Rights – and reach the conclusion that freedom of
expression, as guaranteed in article 8 of the Convention, had been violated,
the Court determined that what had been said by the applicant was not the sort
of speech that would incite hate nor violence against the Armenian people,
since negation of Armenian genocide does not breed racial hatred. During the
reexamination of the case by the Grand Chamber of the Court, FIDH felt that it
was important to suggest certain lines of reasoning to the Court in order to
ensure a better balance between protection of freedom of expression and the ban
on hate speech.

“By suggesting that
the denial of the Armenian genocide does not incite hate and violence towards
the Armenian people, the Chamber’s decision negates the existence of the hate
rhetoric employed by the Turkish media and authorities against the Armenians,
which is the main cause of violence and threats against their lives”, asserted Patrick Baudouin, Honorary President
of FIDH and Coordinator of the FIDH Litigation Action Group. “Many
cases before the European Court of Human Rights have demonstrated the
connection between such rhetoric and the proven risk of violence”, he added. 

Furthermore, by linking the potential criminal
dismissal of negation speech to the recognition, by an international court, of
the genocide in question, as is the case for Holocaust, the Court is basing its
conclusion on an erroneous criterion. This criterion not only contradicts its
earlier case-law –which upholds the existence of clearly established facts and
not the court’s recognition – but risks creating a dangerous
difference of treatment between two categories of negation speech and
introducing a “hierarchy of genocides”.

“Court recognition of
a genocide predicates on the vagaries of history and can be nuanced by
other forms of international recognition,” asserted Karim Lahidji, adding that, “the hateful,
discriminatory intention underlying the negation approach could justify a
restriction to freedom of speech". 

In its third party intervention, FIDH puts forth a series of elements that the
Court could use to counterbalance freedom of expression and the prohibition of
incitement to hatred. The elements that must be taken into account include the
content of the contentious statements, the person speaking, and the context
within which the litigious words were spoken. This approach would elucidate the
requirements for exceptions to freedom of expression, and thus better protect
it, all the while making the provisions used to combat hate speech more
effective.