Two weeks ago -- on the last day of the three-month deadline -- the Swiss government decided to file an appeal with the European Court of Human Rights (ECHR) on the Perincek vs. Switzerland lawsuit.

 

Even though the text of the Swiss appeal has been kept under seal pending ECHR’s consideration, I was able to obtain a copy in French. This is the first time that the content of the Swiss appeal appears in the media.

 

The ECHR ruled on Dec. 17, 2013, that Swiss courts had violated the rights of Dogu Perincek, a minor Turkish party leader, who had traveled to Switzerland in 2005 with the explicit purpose of denying the Armenian Genocide. He had dared the Swiss authorities to arrest him for calling the Genocide “an international lie.”

 

Following his conviction for violating a Swiss law on racial discrimination, denial of genocide, and other crimes against humanity, Perincek appealed his sentence all the way to the Federal Tribunal, the highest court in Switzerland, which confirmed his guilt. He then applied to the European Court of Human Rights, accusing Switzerland of violating many of his rights, including that of free speech. Surprisingly, five of the seven ECHR judges exonerated Perincek, finding that Switzerland violated certain provisions of the European Convention.

 

If left unchallenged, ECHR’s ruling would have been a major setback for recognition of the Armenian Genocide, particularly before the worldwide commemoration of the Centennial of the Genocide to be held on April 24, 2015. Even more importantly, by exceeding their mandate on the alleged infringements of Perincek’s rights, the majority of the ECHR judges raised questions about the validity of the Armenian Genocide. They also drew unwarranted and superfluous distinctions between the Armenian Genocide and the Jewish Holocaust, ruling that punishing the deniers of the former is illegal, while convicting those denying the latter is proper.

 

Given the detrimental consequences of this unjustified ruling on the Armenian Cause, the government of Armenia, Armenian communities worldwide, and Swiss-Armenians in particular, lobbied Switzerland to make sure that it appeals ECHR’s decision in the Perincek case. In reality, the Swiss authorities should not have needed any prodding from Armenians, since they had an obligation to defend the judgments of their own courts, including the Federal Tribunal, and the integrity of their country’s legal system!

  

The six-page Swiss appeal, filed on March 17, 2014, asserted that ECHR’s ruling raised “serious questions regarding the interpretation and application” of the European Convention on Human Rights for the following three reasons:

 

-- The ruling involves an issue -- the Armenian Genocide -- that has never been considered by ECHR. This case raises two fundamental juridical questions that the Court has not dealt with: The juridical qualification of the Genocide and the scope of freedom of expression, when a state party to the Convention, in the framework of fighting racism, criminalizes the denial of genocide.

 

-- The ruling reduces in an undue manner “the margin of appreciation” available to Switzerland under the jurisprudence of ECHR. Perincek had repeatedly stated that he would never change his mind on the Armenian Genocide. His denialist position is “particularly offensive.” The Court’s contention that such a person would bring any value to “the debate and historical research” on this issue “is a departure from ECHR’s established and balanced jurisprudence.”

 

-- The ruling creates “artificial distinctions.” Perincek does not simply contest the use of the term genocide, but qualifies the Armenian mass killings as an “international lie.” Furthermore, even though there has not been an international verdict in the case of the Armenian Genocide, the Turkish Court’s 1919 verdict against the masterminds of the Armenian Genocide “constituted an element of reliable evidence, acknowledging the facts or unfavorable conduct” relative to the World Court’s jurisprudence. Furthermore, even “the Nuremberg Tribunal did not mention the term genocide and did not convict the Nazi perpetrators for committing genocide, but crimes against peace, war crimes, and crimes against humanity.”

 

The Swiss appeal has provided compelling arguments and convincing evidence that five of the seven ECHR judges made serious judgmental and factual errors in delivering a ruling in favor of Perincek and against Switzerland.

 

A panel of five new ECHR judges will now decide whether to refer Switzerland’s appeal to the 17-judge Grand Chamber for a final determination.

 

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