EHRM, 15-10-2015, nr. 27510/08

The Turkish Government submitted that the applicant's statements qualified as political speech, and that this concept, which encompassed speech relating to any matter of public concern, was not confined to statements touching exclusively upon domestic issues or to mainstream speech. These statements had been intended to influence debate in Switzerland in relation to the recognition of the events of 1915 and the following years as genocide and the criminalisation of its denial, and had been calculated to have an impact on Swiss domestic policy. The fact that this issue was also a Swiss domestic controversy was shown by the fact that two Swiss associations — the Switzerland-Armenia Association and the Federation of Turkish Associations of French-speaking Switzerland — had intervened as third parties in this case. The Swiss authorities had therefore only had a limited margin of appreciation to decide whether to act against the applicant; that margin had been further circumscribed by the fact that the applicant had criticised the Swiss legislature.

The applicant's aim had not been racially to discriminate against Armenians but to criticise and challenge the Swiss National Council's decision to recognise the events of 1915 and the following years as genocide. This was clear from the content of his statements, the declarations that he had made in the course of the criminal proceedings against him, and the reasons given by the Swiss courts. He had not sought to spark off a gratuitous controversy but to contribute to an ongoing debate. This was shown by the opposing views of the historians called by the applicant and those called by the Switzerland-Armenia Association in the domestic proceedings. The applicant had not questioned the existence of massacres and deportations but merely opposed their characterisation as genocide. His case was thus different from those concerning denial of the Holocaust, in which the deniers disputed the reality of the historical facts. The applicant was not alone in his position, which had at the time been shared by the British Government.

It was true that the applicant had been provocative with respect to a subject that was a source of deep grief for the Armenian people. However, he had not done this to denigrate the victims of the events of 1915 and the following years or the Armenians in Switzerland, but to trigger a public debate. Freedom of expression encompassed a degree of provocation. It applied to ideas that shocked and offended and to the form in which they were conveyed, even when it included a virulent style. The fact that the applicant had expressed support for the ideas of Talaat Pasha, had said that he would never change his position, and had put the United States and the European Union on a par with Hitler was not relevant, as he had been convicted for racially discriminating by denying ‘a genocide’, not by making other utterances. The applicant's statements could not be equated with statements inciting violence, hostility or racial hatred towards the Armenians. Rejecting the legal characterisation of the events of 1915 and the following years was not an implicit attack on the dignity of the group or a continuation of the discriminatory treatment inflicted upon it at that time. The Swiss Government had not duly showed that this rejection had promoted racial discrimination of the Armenian community in Switzerland, and there was no basis automatically to infer from it racist and nationalistic motives or an intention to discriminate. The main difference in this respect with statements relating to the Holocaust, whose denial today was one of the main vehicles of anti-Semitism, was the lack of connection between past and present hate.

In terms of context, in no other Member State of the Council of Europe had there been a criminal conviction for denying the characterisation of the events of 1915 and the following years as genocide. This suggested that democratic societies saw no need to do so. The example of France in particular showed that there was a difference between official recognition of certain events as genocide and criminalisation of the denial that this was the case. The German Government had also taken the position that such criminalisation was not appropriate. The position of the competent UN bodies was to the same effect. It had to be also borne in mind that statements similar to these of the applicant could lawfully be made in other countries and were widely available on the Internet and in historical and legal treatises that could lawfully be imported in Switzerland. Unlike the position in relation to the Holocaust in cases against Germany and Austria, it could not be said that the events of 1915 and the following years were part of Swiss historical experience. The mere presence of a community of about 5,000 Armenians on Swiss soil was not in itself sufficient in this respect, especially bearing in mind that these events had taken place almost one hundred years ago. It was also significant that the Swiss authorities had not tried to prevent the applicant from uttering his statements; it was difficult to see how there could exist a pressing social need to penalise them but not prevent them from being made. It had been disproportionate, and not required under Switzerland's international law obligations, to impose criminal penalties in relation to these statements.

The Armenian Government submitted that Article 261 bis of the Swiss Criminal Code, which was based on Article 20 of the ICCPR and Article 4 of the CERD, was compatible with the Convention because it only outlawed statements made with the intention to arouse racial ill-feeling or likely to have socially dangerous consequences. Under the court's case-law, laws against hate speech had to take account of whether the impugned statements were of a real public interest, which was not the case for the applicant. He was an incorrigible genocide denier who had not given any reasoning or scholarly validation in support of his crude and gratuitously offensive statements. The Chamber's conclusion that these statements — which had been no more than a racially motivated insult to Armenians and an invitation to Turks to believe them to be liars — had been of a historical, legal and political nature had been jejune in the extreme. The Swiss courts had therefore had the usual margin of appreciation to decide whether the statements could harm social harmony by infringing the dignity of the Armenians. The statements had not been part of a proper historical debate, and the Chamber's apparent suggestion that there could be no objective truth in historical research was nonsense, for the atrocities against the Armenians had been all too real. Distinguishing the Armenian genocide from the Holocaust on the basis that allegations made by Holocaust deniers sometimes concerned very precise facts, that the qualification of the Nazi crimes had had a well-defined legal basis, and that the Holocaust had been established by an international court, was invidious and attempted to set up the Holocaust as the only modern genocide capable of clear proof. Contrary to what had been suggested by the Chamber, genocidal intent was not difficult to prove when it was an obvious inference from the evidence or had been admitted by the perpetrators. The massacres and mass deportations of Armenians in 1915 and the following years had clearly amounted to genocide. By describing them as a mere ‘tragedy’, the Chamber had insulted all Armenians. Just like Holocaust denial was the main driver of anti-Semitism, denial of the Armenian genocide was the main driver of anti-Armenianism; this was how genocide denial worked. The Chamber's reliance on the position in Spain and France and the views of the UN Human Rights Committee had been erroneous, because these presented serious differences with Article 261 bis of the Swiss Criminal Code.

The real vice of the Chamber judgment was that it had been seen by genocide deniers as authority for the proposition that there was doubt about the reality of the Armenian genocide. For a human rights court to send such a message was deeply hurtful and unfair. It had been based on mistaken or misleading evidence produced by the applicant on this point, on which there could be no doubt. There was a broad scholarly consensus about this, and those who denied it were mostly historians with no legal qualifications and a poor understanding of the way in which genocidal intent could be proved under international law; many of them were also in the pay of the Turkish Government. In this connection, the Armenian Government referred to a number of enquiries, analyses, reports, acts of official recognition and other evidence.

The French Government submitted that States had to be able to resort to criminal penalties to respond to racism and denialism in a sufficiently dissuasive way. When the right to freedom of expression was being exercised in a manner that threatened the basic tenets of a democratic society, the legislature had to be able to react by ordaining criminal law sanctions. This was confirmed by the positions taken by the ECRI and by Article 1 § 1 (c) of EU Framework Decision 2008/913/JHA. Genocide denial was a programme of falsification that tended to promote intolerance. In view of that threat that it carried, laws that made it a criminal offence were in line with Article 10 of the Convention. These laws did not seek to stifle historical debate or research but to combat denialist statements that led to damaging consequences. Their application in appropriate cases was within the national courts' margin of appreciation. The purpose of that margin of appreciation was to enable the High Contracting Parties to combat such conduct even in the absence of a general consensus on this issue.

The Switzerland-Armenia Association submitted that the case concerned not only the applicant's right to freedom of expression but also the honour, reputation and memory of the victims of the atrocities perpetrated by the Ottoman Empire in 1915 and the following years and their descendants, which were entitled to protection under Article 8 of the Convention. The Court had recently recognised that ethnic identity engaged that Article. The case thus entailed a conflict between two Convention rights that deserved equal protection. The High Contracting Parties enjoyed a broad margin of appreciation in balancing these rights. The Swiss courts' judgments in the applicant's case were therefore entitled to considerable deference, especially as regards their findings in relation to the ‘general consensus’ on the legal qualification of the events of 1915 and the following years. It was not the court's task to make pronouncements on this issue.

The applicant had made his statements deliberately, having specifically come to Switzerland for that purpose. These statements had not been limited to the legal characterisation of the events of 1915 and the following years; they had in effect denied their reality. The applicant's resultant criminal conviction was therefore not incompatible with the Convention. The Chamber's attempt to distinguish this conviction from those relating to Holocaust denial was very disturbing because it implied an inequality of treatment between genocide victims. In any event, the applicant had also sought to justify the massacres, which had undoubtedly constituted crimes against humanity. There was no reason to pay more heed to the Spanish and French constitutional courts rather than to the Swiss Federal Court. Lastly, the penalty imposed on the applicant had been highly symbolic, given the seriousness of his acts.

The Federation of the Turkish Associations of French-speaking Switzerland submitted that only a minority of democratic States had chosen to criminalise genocide denial, especially before the adoption of EU Framework Decision 2008/913/JHA. They referred to the position in the United States of America, and noted that Germany and France had only outlawed denial of the Holocaust. No other historical event had thus far been included in the category of ‘clearly established historical facts’ whose denial did not under the court's case-law merit the protection of Article 10 of the Convention. Such an extension, entailing an official interpretation of the past backed up by criminal penalties, was impossible to reconcile with freedom of expression, especially in the light of the reasons given by the French and Spanish constitutional courts on that point. Expression on such issues could only be criminalised if clearly prompted by racist or antidemocratic motives or giving rise to an imminent threat to public order. The High Contracting Parties' wider margin of appreciation in this respect only extended to events that had taken part on their territory.

The Federation drew attention to the provisions of the EU Framework Decision 2008/913/JHA, especially to its limiting clauses and its emphasis on the need to punish denial only if it was likely to incite to violence or hatred. It concluded that, properly construed, European Union law did not require the criminalisation of denial that the events of 1915 and the following years had amounted to genocide that was not accompanied by denial or condoning of the primary facts. It also drew attention to the recent report on the Framework decision's implementation, saying that it showed the continuing lack of consensus on the need for criminal law measures in this domain. The third party submitted that the applicable international law contained no such requirement either. Lastly, it said that freedom of expression on this point was important to the 130,000 Turks living in Switzerland, who wished to be able to discuss controversial issues in a spirit of openness.

The CCAF said that it acted on behalf of the 600,000-strong Armenian community in France, the third-largest in the Armenian diaspora. They were all aware that they belonged to a people which had suffered extermination, and time had not erased their memories. The CCAF illustrated that point by describing in detail the various public and private ways in which Armenians in France commemorated the victims. It went on to say that under international law, genocide was recognised as an attack on human dignity, which the French courts saw as a component of ordre public. Its denial likewise infringed that dignity; it affected not only history but memory, which was an integral aspect of the right to dignity. Outlawing denial was the only way to protect that right. Moreover, denial affected public order, at least in countries which, like France, were home to sizeable Armenian communities. This was demonstrated by the number of acts of vandalism and desecration, as well as insults and threats that Armenians became victim to, especially in localities where they cohabited with persons of Turkish origin, and on the Internet. Public rallies organised by genocide deniers from both within and outside France, which could easily degenerate into clashes, were a particular source of anxiety in that respect.

The CCAF also claimed that, should the Grand Chamber uphold the Chamber judgment, its ruling would make it potentially impossible to outlaw denial of the Armenian genocide or other genocides and harden Turkey's attitude with respect to that issue. By contrast, if the Grand Chamber overturned the Chamber judgment, its ruling would enable the High Contracting Parties to combat denialism by criminal law measures and deter would-be genocide deniers, offer Armenians in the diaspora a form of moral reparation, and perhaps even encourage Turkey to abandon its policy of denial.

The Turkish Human Rights Association, the Truth Justice Memory Centre and the International Institute for Genocide and Human Rights Studies, which made joint submissions, argued that the conduct in respect of which the applicant had been convicted had been incitement to discrimination, not mere genocide denial. They also disputed the Chamber's finding that the applicant had only denied the legal characterisation of the events of 1915 and the following years, pointing out that the Lausanne District Police Court had found that he had attempted to justify the massacres and described the Armenians as ‘aggressors’ and ‘traitors’, and that the Chamber had itself noted that he claimed to be a follower of Talaat Pasha. They also said that the applicant had deliberately chosen the places where he had made his statements. However, the factor that was most telling of the applicant's racist motives was his leadership of the Talaat Pasha Committee, condemned by the European Parliament as ‘xenophobic and racist’. All of this had to be seen chiefly in the context of Turkey, not Switzerland, and its effect on the Armenian minority there. The applicant had been convicted in Turkey, in the so-called Ergenekon proceedings, inter alia in connection with his activities in the Talaat Pasha Committee, which the Istanbul Court of Assize had found established for the purpose of ‘refuting the Armenian genocide allegations’ and part of a ‘nationalist’ and ‘chauvinist’ organisation that stirred up hatred and enmity among peoples. Indeed, the portrayal of the notion that the events of 1915 and the following years had constituted genocide as a ‘lie’ could be linked to the assassination in January 2007 of the Turkish-Armenian journalist Hrant Dink at the instigation of Turkish ultranationalist groups.

In this connection, the third party referred to — but did not submit a copy of — an open letter that the applicant had addressed in the wake of that assassination to the Armenian Patriarch in Istanbul, and anonymous letters addressed to Armenian schools in Turkey in May 2007. Instead, references were given to the web-versions of two articles in Turkish newspapers (see paragraph 28 above). The third party also referred to the judgment of the Istanbul Court of Assize in the so-called Ergenekon proceedings and other documents in the case file of those proceedings.

Lastly, the third party argued that in Turkey, xenophobic and racist propaganda about the events of 1915 and the following years was the only and constant narrative. The applicant's statements on the characterisation of these events could thus be directly linked to the climate of hostility against Armenians in Turkey, which had been documented by, inter alia, the ECRI.

The FIDH submitted that the case highlighted the conflict between the need to ensure freedom of expression and debate, particularly on historical issues, and the importance of combatting hate speech, especially when it took the form of denialism. Both of those were equally important under the Convention. The court's recent case-law in this domain was somewhat inconsistent, and in need of clarification by the Grand Chamber, which had to lay down clear principles and strike a proper balance between these competing values. In doing so, the Grand Chamber had to make clear three points. First, neither of these values automatically trumped the other. Secondly, freedom of expression was the principle and its restriction the exception. Thirdly, in this domain there was little scope for affording the High Contracting Parties a margin of appreciation.

The FIDH criticised the Chamber for unhesitantly accepting that statements denying that the events of 1915 and the following years had amounted to genocide could not, as such, encourage hatred or violence towards the Armenians. In its view, the point was much more nuanced, and could only be decided on the basis of a careful examination of the context in which the statements had been made. In Turkey, such denial could, in view of the prevailing atmosphere, lead to hatred and violence; this was borne out by several cases before this Court. While the context that mattered most was that of the country in which the statements had been made, in view of the new means of communication and their capacity to give such statements a global impact the Court could not avoid taking into account a much wider context.

The FIDH took issue with the Chamber's drawing a distinction between statements relating to the legal characterisation of the events of 1915 and the following years and statements denying the Holocaust on the basis that the latter, unlike the former, had been clearly established by an international court. This approach did not in its view provide a proper yardstick because it was somewhat specious to detach the historical reality of events from their legal characterisation. Moreover, it entailed the risk of creating a ‘hierarchy of genocides’ as the judicial recognition of a genocide depended on many historical factors. On the other hand, judicial recognition could not preclude further discussion about a genocide. A much better way to deal with this issue — and one that would avoid treating the Holocaust as a special case and yield much more predictable outcomes — was to focus on whether the statements at issue had been intended to incite to hatred or discrimination and find that their penalisation could be justified not because they amounted to the simple denial of a historical fact but because they were driven by such an intent, which was often at the heart of the denialist cause. This was demonstrated by the case-law relating to Holocaust denial, where such intent was almost irrebuttably presumed, and was the real basis for refusing such statements protection under the Convention. It was highly likely that such intent likewise underlay denials of the Armenian genocide, which were often prompted by a desire to rehabilitate the Ottoman regime of that period or justify the acts that took place. But that had to be determined by the Court case by case.

The LICRA submitted that outlawing genocide denial was not only compatible with freedom of expression but indeed required under the European system of human rights protection. It referred in this connection to, in particular, Article 6 § 1 of the Additional Protocol to the Convention on Cybercrime.

The Centre for International Protection submitted that statements relating to national identity called for a wider margin of appreciation to be left to the national authorities. It had to be borne in mind in this connection that the Armenian diaspora had come into existence largely as a result of the events of 1915 and the following years. The appropriate test was whether the statements contributed to public debate or were, on the contrary, gratuitously offensive, which could only be determined on the basis of a broad examination of the statements and their context. A statement could only be considered legal or historical if it really contributed to the underlying debate, and could not hide under the cloak of political expression if it in fact amounted to hate speech. A contextual assessment was likewise necessary to assess whether a statement had destructive aims and called for the application of Article 17 of the Convention. The use of the word ‘lie’ was of special importance in this connection, because it impugned the integrity of the victims and their descendants, and attempted to redefine the events that they had experienced as something much less serious and turn them from victims into perpetrators ultimately responsible for their fate.

The existence of a pressing social need for the interference had to be gauged by reference to the conditions obtaining in the State concerned, for instance the diversity of its population and the values and principles underpinning its society. The mere fact that other States had made different choices in this domain was not determinative. Such pressing social need could also flow from that State's international law obligations: in this case, those under Article 4 of the CERD and Article 20 § 2 of the ICCPR, as interpreted by the competent UN bodies. Lastly, States had to be allowed a margin of appreciation in classifying certain events as genocides for the purposes of outlawing their denial and imposing proportionate penalties on such denial.

The group of French and Belgian academics submitted that hate speech was not confined to statements that openly called to violence; genocide denial or justification also fell in that category. The factors to be taken into account in this respect included the nature of the statement, seen in its proper context, which was not confined to its literal meaning or the purported profession of its author. What ultimately mattered was the meaning that could be ascribed to the statement, taken as a whole, by a reasonable member of the public. This flowed from the case-law of the German courts in such cases and the criteria laid down by the UN Committee on the Elimination of Racial Discrimination. A statement could only benefit from the protection bestowed upon historical research if its author had acted in line with the methods of that research. As for virulent political statements, under the court's case-law they appeared to be afforded a heightened degree of protection only if they concerned domestic controversies. In any event, hate speech could never benefit from the protection granted to political speech. This was confirmed by the criminalisation of hate speech in international and European law, which saw it as necessary in the fight for peace and justice and against discrimination, racism and xenophobia. The applicable international instruments did not differentiate in this respect between genocide, crimes against humanity and war crimes, and left the States free to determine how these should be established. In particular, those instruments did not necessarily tie the possibility to outlaw the denial of such crimes to their being officially recognised by an international court, which was consonant with the principle of complementarity underlying the work of the ICC, under which it was as a matter of principle for the national courts to punish international crimes.

The general principles for assessing whether an interference with the exercise of the right to freedom of expression is ‘necessary in a democratic society’ within the meaning of Article 10 § 2 of the Convention are well-settled in the court's case-law. As noted by the Chamber, they were recently restated in Mouvement raëlien suisse v. Switzerland ([GC], no. 16354/06, § 48, ECHR 2012) and Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013), and can be summarised in this way:

Another principle that has been consistently emphasised in the court's case-law is that there is little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest (see, among many other authorities, Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999-IV; and Animal Defenders International, cited above, § 102).

The general principles applicable to cases in which the right to freedom of expression under Article 10 of the Convention has to be balanced against the right to respect for private life under Article 8 of the Convention were set out by the court's Grand Chamber in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 104–07, ECHR 2012) and Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 85–88, 7 February 2012). They can be summarised as follows:

More recently, in Aksu v. Turkey ([GC], nos. 4149/04 and 41029/04, § 67, ECHR 2012), the court's Grand Chamber elaborated further on this latter requirement, holding that if the balance struck by the national authorities was unsatisfactory, in particular because the importance or scope of one of the rights at stake was not duly considered, the margin of appreciation would be a narrow one.

In Aksu (cited above, §§ 58–61 and 81), the Court held, inter alia, that the negative stereotyping of an ethnic group was capable, when reaching a certain level, of having an impact on the group's sense of identity and on its members' feelings of self-worth and self-confidence. It could thus affect their ‘private life’ within the meaning of Article 8 § 1 of the Convention. On this basis, the Court found that proceedings in which a person of Roma origin who had felt offended by passages in a book and dictionary entries about Roma in Turkey had sought redress had engaged that Article.

In Putistin v. Ukraine (no. 16882/03, §§ 33 and 36–41, 21 November 2013), the Court accepted that the reputation of an ancestor could in some circumstances affect a person's ‘private life’ and identity, and thus come within the scope of Article 8 § 1 of the Convention. On that basis, it found that a newspaper article about a famous football match in Kiev during the Second World War that could be regarded as suggesting that Mr Putistin's late father, a well-known footballer who had taken part in that match, had collaborated with the Gestapo had, albeit in an indirect manner and marginally, affected Mr Putistin's rights under Article 8 § 1.

In Jelševar and Others v. Slovenia ((dec.), no. 47318/07, § 37, 11 March 2014), the Court likewise accepted that an attack on the reputation of an ancestor coming in the form of a work of literary fiction could affect a person's rights under Article 8 § 1 of the Convention.

In Dzhugashvili v. Russia ((dec.), no. 41123/10, §§ 26–35, 9 December 2014), the Court proceeded from the premise that two newspaper articles dealing with the historical role of the applicant's grandfather, Joseph Stalin, had affected his own rights under Article 8 § 1 of the Convention.

The Court has been called upon to consider the application of Article 10 of the Convention in a number of cases concerning statements, verbal or non-verbal, alleged to stir up or justify violence, hatred or intolerance. In assessing whether the interferences with the exercise of the right to freedom of expression of the authors, or sometimes publishers, of such statements were ‘necessary in a democratic society’ in the light of the general principles formulated in its case-law (see paragraphs 196 and 197 above), the Court has had regard to several factors.

One of them has been whether the statements were made against a tense political or social background; the presence of such a background has generally led the Court to accept that some form of interference with such statements was justified. Examples include the tense climate surrounding the armed clashes between the PKK (Workers' Party of Kurdistan, an illegal armed organisation) and the Turkish security forces in south-east Turkey in the 1980s and 1990s (see Zana v. Turkey, 25 November 1997, §§ 57–60, Reports 1997-VII; Sürek v. Turkey (no. 1) [GC], no. 26682/95, §§ 52 and 62, ECHR 1999-IV; and Sürek v. Turkey (no. 3) [GC], no. 24735/94, § 40, 8 July 1999), the atmosphere engendered by deadly prison riots in Turkey in December 2000 (see Falakaoğlu and Saygılı v. Turkey, nos. 22147/02 and 24972/03, § 33, 23 January 2007, and Saygılı and Falakaoğlu v. Turkey (no. 2), no. 38991/02, § 28, 17 February 2009), problems relating to the integration of non-European and especially Muslim immigrants in France (see Soulas and Others, cited above, §§ 38-39, and Le Pen v. France (dec.), no. 18788/09, 20 April 2010), and the relations with national minorities in Lithuania shortly after the re-establishment of its independence in 1990 (see Balsytė-Lideikienė v. Lithuania, no. 72596/01, § 78, 4 November 2008).

Another factor has been whether the statements, fairly construed and seen in their immediate or wider context, could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance (see, among other authorities, Incal v. Turkey, 9 June 1998, § 50, Reports 1998-IV; Sürek (no. 1), cited above, § 62; Özgür Gündem v. Turkey, no. 23144/93, § 64, ECHR 2000-III; Gündüz v. Turkey, no. 35071/97, §§ 48 and 51, ECHR 2003-XI; Soulas and Others, cited above, §§ 39–41 and 43; Balsytė-Lideikienė, cited above, §§ 79–80; Féret, cited above, §§ 69–73 and 78; Hizb ut-Tahrir and Others, cited above, § 73; Kasymakhunov and Saybatalov, cited above, §§ 107–12; Fáber v. Hungary, no. 40721/08, §§ 52 and 56–58, 24 July 2012; and Vona, cited above, §§ 64–67). In assessing that point, the Court has been particularly sensitive towards sweeping statements attacking or casting in a negative light entire ethnic, religious or other groups (see Seurot v. France (dec.), no. 57383/00, 18 May 2004, Soulas and Others, cited above, §§ 40 and 43; and Le Pen, cited above, all of which concerned generalised negative statements about non-European and in particular Muslim immigrants in France; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004-XI, which concerned statements linking all Muslims in the United Kingdom with the terrorist acts in the United States of America on 11 September 2001; W.P. and Others v. Poland (dec.), no. 42264/98, 2 September 2004, and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007, both of which concerned vehement anti-Semitic statements; Féret, cited above, § 71, which concerned statements portraying non-European immigrant communities in Belgium as criminally-minded; Hizb ut-Tahrir and Others, § 73, and Kasymakhunov and Saybatalov, § 107, both cited above, which concerned direct calls for violence against Jews, the State of Israel, and the West in general; and Vejdeland and Others v. Sweden, no. 1813/07, § 54, 9 February 2012, which concerned allegations that homosexuals were attempting to play down paedophilia and were responsible for the spread of HIV and AIDS).

The Court has also paid attention to the manner in which the statements were made, and their capacity — direct or indirect — to lead to harmful consequences. Examples include Karataş v. Turkey ([GC], no. 23168/94, §§ 51–52, ECHR 1999-IV), where the fact that the statements had been made through poetry rather than in the mass media led to the conclusion that the interference could not be justified by the special security context otherwise existing in the case; Féret (cited above, § 76), where the statements had been made on electoral leaflets, which had enhanced the effect of the discriminatory and hateful message that they were conveying; Gündüz (cited above, §§ 43–44), where the statements had been made in the course of a deliberately pluralistic televised debate, which had reduced their negative effect; Fáber (cited above, §§ 44–45), where the statement had consisted in the mere peaceful holding of a flag next to a rally, which had had a very limited, in any, effect on the course of that rally; Vona (cited above, §§ 64–69), where the statement had consisted in military-style marches in villages with large Roma populations, which, given the historical context in Hungary, had carried sinister connotations; and Vejdeland and Others (cited above, § 56), where the statements had been made on leaflets left in the lockers of secondary school students.

In all of the above cases, it was the interplay between the various factors rather than any one of them taken in isolation that determined the outcome of the case. The court's approach to that type of case can thus be described as highly context-specific.

The former Commission has dealt with a number of cases under Article 10 of the Convention concerning denial of the Holocaust and other statements relating to Nazi crimes. It declared the applications in all of them inadmissible (see X. v. the Federal Republic of Germany, no. 9235/81, Commission decision of 16 July 1982, Decisions and Reports (DR) 29, p. 194; T. v. Belgium, no. 9777/82, Commission decision of 14 July 1983, DR 34, p. 158; H., W., P. and K. v. Austria, no. 12774/87, Commission decision of 12 October 1989, DR 62, p. 216; Ochensberger v. Austria, no. 21318/93, Commission decision of 2 September 1994, unreported; Walendy v. Germany, no. 21128/92, Commission decision of 11 January 1995, DR 80-A, p. 94; Remer v. Germany, no. 25096/94, Commission decision of 6 September 1995, DR 82-A, p. 117; Honsik v. Austria, no. 25062/94, Commission decision of 18 October 1995, DR 83-A, p. 77; Nationaldemokratische Partei Deutschlands Bezirksverband München-Oberbayern v. Germany, no. 25992/94, Commission decision of 29 November 1995, DR 84-A, p. 149; Rebhandl v. Austria, no. 24398/94, Commission decision of 16 January 1996, unreported; Marais v. France, no. 31159/96, Commission decision of 24 June 1996, DR 86-B, p. 184; D.I. v. Germany, no. 26551/95, Commission decision of 26 June 1996, unreported; and Nachtmann v. Austria, no. 36773/97, Commission decision of 9 September 1998, unreported). In those cases the Commission was faced with statements, almost invariably emanating from persons professing Nazi-like views or linked with Nazi-inspired movements, that cast doubt on the reality of the persecution and extermination of millions of Jews under the Nazi regime; claimed that the Holocaust was an ‘unacceptable lie’ and a ‘Zionistic swindle’, contrived as a means of political extortion; denied the existence of the concentration camps or justified it; or claimed either that the gas chambers in those camps had never existed or that the number of persons killed in them was being highly exaggerated and technically impossible. The Commission, frequently referring to the historical experience of the States concerned, described such statements as attacks on the Jewish community and intrinsically linked to Nazi ideology, which was antidemocratic and inimical to human rights. It regarded them as inciting to racial hatred, anti-Semitism and xenophobia, and was on that basis satisfied that the criminal convictions in respect of them had been ‘necessary in a democratic society’. In some of those cases the Commission relied on Article 17 as an aid in the interpretation of Article 10 § 2 of the Convention, and used it to reinforce its conclusion on the necessity of the interference.

After 1 November 1998 the Court also dealt with several such cases and likewise declared the applications in all of them inadmissible (see Witzsch v. Germany (no. 1) (dec.), no. 41448/98, 20 April 1999; Schimanek v. Austria (dec.), no. 32307/96, 1 February 2000; Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX; Witzsch v. Germany (no. 2) (dec.), no. 7485/03, 13 December 2005; and Gollnisch v. France (dec.), no. 48135/08, 7 June 2011). Those cases equally concerned statements that variously denied the existence of the gas chambers; described them as a ‘sham’ and the Holocaust as a ‘myth’; called their depiction the ‘Shoah business’, ‘mystifications for political ends’ or ‘propaganda’; or called into question the number of dead and in ambiguous terms expressed the view that the gas chambers were a matter for the historians. In one of them the statement had been limited to the assertion that it was false that Hitler and the NSDAP had planned, initiated and organised the mass killing of Jews (see Witzsch (no. 2), cited above).

In three cases the Court, applying reasoning similar to that of the former Commission, found that the interferences with the applicants’ right to freedom of expression had been ‘necessary in a democratic society’ (see Schimanek; Witzsch (no. 1); and Gollnisch, all cited above).

However, in the other two it relied on Article 17 to declare the complaints under Article 10 incompatible ratione materiae with the provisions of the Convention. In Garaudy (cited above) it found that by questioning the reality, extent and seriousness of the Holocaust, which was not the subject of debate between historians but on the contrary clearly established, Mr Garaudy had sought to rehabilitate the Nazi regime and accuse the victims of falsifying history. Such acts were incompatible with democracy and human rights, and amounting to the use of the right to freedom of expression for ends contrary to the text and spirit of the Convention. In Witzsch (no. 2) (cited above), the Court agreed with the German courts that Mr Witzsch's statements showed his disdain towards the victims of the Holocaust.

The Court has been confronted with a number of cases concerning historical debates.

In many of those cases the Court expressly stated that it was not its role to arbitrate such debates (see Chauvy and Others, cited above, § 69; Monnat v. Switzerland, no. 73604/01, § 57, ECHR 2006-X; Fatullayev v. Azerbaijan, no. 40984/07, § 87, 22 April 2010; and Giniewski v. France, no. 64016/00, § 51 in fine, ECHR 2006-I).

In determining whether the interferences with the exercise of the right to freedom of expression of the authors, or sometimes publishers, of statements touching upon historical issues were ‘necessary in a democratic society’, the Court has had regard to several factors.

One of them has been the manner in which the impugned statements were phrased and the way in which they could be construed. Examples include Lehideux and Isorni v. France (23 September 1998, § 53, Reports 1998-VII), where the statements could not be read as a justification of pro-Nazi policies; Stankov and the United Macedonian Organisation Ilinden (nos. 29221/95 and 29225/95, §§ 102 and 106, ECHR 2001-IX), where the statements, although consisting in ‘fierce anti-Bulgarian declarations’, could be regarded as containing an element of exaggeration designed merely to attract attention; Radio France and Others (cited above, § 38), where the statements, which contained serious defamatory allegations, were marked by their categorical tone; and Orban and Others v. France (no. 20985/05, §§ 46, 49 and 51, 15 January 2009), where the statements were simply a witness account by a first-hand participant in the Algerian War, not justification of torture or glorification of its perpetrators.

Another factor has been the specific interest or right affected by the statements. For instance, in Stankov and the United Macedonian Organisation Ilinden (cited above, § 106), this had been the national symbols of Bulgarians. In Radio France and Others (cited above, §§ 31 and 34–39) and Chauvy and Others (cited above, §§ 52 and 69), this had been the reputations of living persons, which had been affected by serious accusations of wrongdoing contained in the statements. In Monnat (cited above, § 60), the statements had not been directed against the reputation or personality rights of the persons complaining of them or against the Swiss people, but against the leaders of the country during the Second World War. In Association of Citizens Radko and Paunkovski v. the former Yugoslav Republic of Macedonia (no. 74651/01, §§ 69 and 74, ECHR 2009 (extracts)), the statements had affected the national and ethnic identity of all Macedonians. In Orban and Others (cited above, § 52) the statements had been capable of reviving the painful memories of the victims of torture.

A related factor has been the statements’ impact. For instance, in Stankov and the United Macedonian Organisation Ilinden (cited above, §§ 102–03 and 110) the Court took into account that the group making the statements had no real influence, even locally, and that its rallies were not likely to become a platform for the propagation of violence or intolerance; it also adverted to that in the related case of United Macedonian Organisation Ilinden — PIRIN and Others v. Bulgaria (no. 59489/00, § 61, 20 October 2005). By contrast, in Radio France and Others (cited above, §§ 35 and 39), the Court noted that the statement, which had contained serious defamatory allegations against a living person, had been broadcast on national radio sixty-two times.

Lastly, the Court has taken account of the lapse of time since the historical events to which the statements related: forty years in Lehideux and Isorni (cited above, § 55); fifty years in Monnat (cited above, § 64), and again forty years in Orban and Others (cited above, § 52).

The above cases thus illustrate that, similar to the position in relation to ‘hate speech’, the court's assessment of the necessity of interferences with statements relating to historical events has also been quite case-specific and has depended on the interplay between the nature and potential effects of such statements and the context in which they were made.

In Güçlü v. Turkey (no. 27690/03, 10 February 2009) the applicant, a lawyer and politician, said in the course of a press conference that for him personally the events of 1915 and the following years had amounted to genocide and that Turkey needed to come to terms with this and engage in an open debate on this issue. He was then convicted under a legal provision proscribing propaganda against Turkey's territorial integrity, and sentenced to a year's imprisonment for this statement and other statements made in the course of same press conference in relation to the Kurdish issue. He had served a little more than three months of that sentence when the provision under which he was convicted was repealed. As a result, his conviction was annulled and he was released. The Court found that the Mr Güçlü's statement had clearly concerned a debate on a question of public interest. It went on to say that the expression of such opinions, even if they did not match those of the public authorities and could offend or shock others, was entitled to protection under Article 10 of the Convention, and that debate by definition consisted in the expression of divergent points of view. The Court also noted that by making his statement Mr Güçlü had sought to provoke a debate on historical and political questions. In view of this, and of the severity of the penalty imposed on him, it found a breach of Article 10 (ibid., §§ 33–42).

In Dink v. Turkey (nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010) the applicant, a prominent Turkish-Armenian writer and journalist who was later assassinated, had been convicted of denigrating ‘Turkishness’ (Türklük), a criminal offence under Article 159 of the Turkish Criminal Code as then in force (superseded by Article 301 of the Turkish Criminal Code of 2005). Examining that conviction under Article 10 of the Convention, the Court noted that an examination of the articles in which Mr Dink had made the impugned statements showed clearly that his use of the term ‘poison’ denoted the ‘perception of Turks’ among Armenians and the ‘obsessive’ nature of the Armenian diaspora's campaign to secure recognition of the events of 1915 and the following years as genocide. Mr Dink had in effect asserted that this obsession, which meant that Armenians still viewed themselves as ‘victims’, had poisoned the lives of members of the Armenian diaspora and had prevented them from developing their identity on a healthy basis. These assertions could not be regarded as hate speech (ibid., § 128).

The Court also took into account the fact that Mr Dink had been writing in his capacity as a journalist and editor of a Turkish-Armenian newspaper, commenting on issues concerning the Armenian minority from the position of an actor on the Turkish political scene. When expressing his resentment at attitudes which in his view amounted to denial of the incidents of 1915 and the following years, Mr Dink had conveyed his opinions on an issue of indisputable public concern in a democratic society. It was essential in such societies that debates surrounding historical events of a particularly serious nature should be able to take place freely. It was an integral part of freedom of expression to seek historical truth and it was not the court's role to arbitrate on an underlying historical matter forming part of an ongoing public debate. Furthermore, the Mr Dink's articles had not been gratuitously offensive or insulting, and had not fostered disrespect or hatred (ibid., § 135). There had therefore been no pressing social need to find him guilty of denigrating ‘Turkishness’.

In Cox (cited above) a United States national who had taught at two Turkish universities in the 1980s was deported from Turkey in 1986 and banned from re-entering the country for saying in front of students and colleagues that ‘the Turks [had] assimilated Kurds’ and ‘expelled and massacred Armenians'. She was deported on two further occasions. In 1996 she brought proceedings seeking to have the re-entry ban lifted, but was unsuccessful. The Court noted, in particular, that Ms Cox's statements had concerned the Kurdish and Armenian questions, which were still the subject of ‘heated debate, not only within Turkey but also in the international arena, with all those involved voicing their views and counter-views’. It acknowledged that ‘opinions expressed on these issues by one side [could] sometime offend the other side’ but emphasised that ‘a democratic society require[d] tolerance and broadmindedness in the face of controversial expressions’ (ibid., §§ 41–42). It concluded that the ban on the Ms Cox's re-entry into Turkey had been designed to repress the exercise of her freedom of expression and stifle the spreading of ideas. The interference with her right to freedom of expression had therefore not been ‘necessary in a democratic society’ (ibid., §§ 44–45).

In Altuğ Taner Akçam v. Turkey (no. 27520/07, 25 October 2011) the applicant, a professor of history who published extensively on the events of 1915 and the following years and had been the subject of several criminal investigations — all discontinued — in connection with newspaper articles in which he had criticised the prosecution of Hrant Dink (see paragraph 222 above), complained of the existence of Article 301 of the Turkish Criminal Code, which he alleged made it possible for him to be prosecuted at any time for scholarly work on the Armenian issue. On the basis of the criminal investigations against Mr Akçam and the stance of the Turkish courts on the Armenian issue in their application of that Article, as well as a public campaign against Mr Akçam in connection with the investigations, the Court found that there existed a real risk that he could be prosecuted for ‘unfavourable’ opinions on this matter (ibid., §§ 62–82). It went on to say that the terms used in that Article, as interpreted by the Turkish authorities, were too broad and vague, despite the safeguards put in place by the legislature. The number of investigations and prosecutions brought under it showed that any opinion regarded as offensive, shocking or disturbing could easily be targeted (ibid., §§ 89–94). That Article did not therefore meet the requirement of foreseeability.

To assess the weight of the applicant's interest in the exercise of his right to freedom of expression, the Court must first examine the nature of his statements. In doing so, it will not seek to establish whether they could properly be characterised as genocide denial or justification for the purposes of Article 261 bis § 4 of the Swiss Criminal Code, or were made ‘on the grounds’ of ‘race, ethnic origin or religion’ within the meaning of that Article. These points concern the interpretation and application of Swiss law, and were for the Swiss courts to determine (see, among many other authorities, Lehideux and Isorni, cited above, § 50). The relevant question is rather whether the statements belonged to a type of expression entitled to heightened or reduced protection under Article 10 of the Convention, which is ultimately for the Court to decide, while having regard to the findings of the Swiss courts in this respect (see paragraph 196 (iii) above).

Under the court's case-law, expression on matters of public interest is in principle entitled to strong protection, whereas expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection (see the cases cited in paragraphs 197 and 204-07 above). Statements on historical issues, whether made at public rallies or in media such as books, newspapers, or radio or television programmes are as a rule seen as touching upon matters of public interest (see Stankov and the United Macedonian Organisation Ilinden, §§ 79, 85 and 97 (statements at rallies); Chauvy and Others, §§ 68 and 71, and Orban and Others, § 45 (books); Lehideux and Isorni, §§ 10–11 (newspaper publication); Radio France and Others, §§ 34–35 (radio broadcast); and Monnat, § 56 (television programme)).

The Chamber found that the applicant's statements had been of a historical, legal and political nature. The Swiss Government and some of the third parties disagreed, essentially on the basis that the applicant had not proceeded in a scholarly and dispassionate manner and in the spirit of open-mindedness characteristic of proper historical debate. The Grand Chamber cannot accept this argument. Even though the applicant's statements touched upon historical and legal issues, the context in which they were made — at public events where the applicant was speaking to like-minded supporters — shows that he spoke as a politician, not as a historical or legal scholar. He took part in a long-standing controversy that the Court has, in a number of cases against Turkey, already accepted as relating to an issue of public concern (see paragraphs 221 and 223 above), and described as a ‘heated debate, not only within Turkey but also in the international arena’ (see paragraph 224 above). Indeed, the issue had been debated in the Swiss Parliament in 2002-03, not long before the applicant's statements (see paragraphs 48-50 above). The fact that it did not concern the mainstream of Swiss politics does not detract from its public interest. Nor does the fact that the applicant expressed himself in strong terms (see Morice v. France [GC], no. 29369/10, § 125 in fine, 23 April 2015). It is in the nature of political speech to be controversial and often virulent (compare with Erbakan v. Turkey, no. 59405/00, § 59, 6 July 2006; Faruk Temel v. Turkey, no. 16853/05, §§ 8 and 60, 1 February 2011; and Otegi Mondragon v. Spain, no. 2034/07, §§ 10 and 53–54, ECHR 2011). That does not diminish its public interest, provided of course that it does not cross the line and turn into a call for violence, hatred or intolerance, which is the point that the Court will now examine.

The Swiss courts found that the applicant had spoken with a racist motive. They did so on the basis of his assertion that the Armenians had been aggressors of the Turks and his professed affiliation with Talaat Pasha, the Ottoman Minister of Internal Affairs at the time of the events of 1915 and the following years, but also on the basis of the mere, albeit obstinate, denial that those events had constituted genocide (see paragraphs 22, 24 and 26 above). The Chamber disagreed, noting that the applicant had not been prosecuted for incitement to hatred, which was a separate offence under Swiss law, and that he had not expressed contempt for the victims (see paragraphs 51–53 and 119 of the Chamber judgment).

While being fully aware of the acute sensitivities attached by the Armenian community to the issue in relation to which the applicant spoke, the Court, taking into account the overall thrust of his statements, does not perceive them as a form of incitement to hatred or intolerance. The applicant did not express contempt or hatred for the victims of the events of 1915 and the following years, noting that Turks and Armenians had lived in peace for centuries, and suggesting — whether that was in fact so is immaterial in the present context — that both had fallen victim to ‘imperialist’ machinations. He did not call the Armenians liars, use abusive terms with respect to them, or attempt to stereotype them (contrast Seurot; Soulas and Others, § 40; Balsytė-Lideikienė, § 79; Féret, §§ 12–16 and 69–71; and Le Pen, all cited above). His strongly worded allegations were directed against the ‘imperialists’ and their allegedly insidious designs with respect to the Ottoman Empire and Turkey (compare, mutatis mutandis, with Giniewski, cited above, §§ 45–49, where the Court, departing from the domestic courts' findings, held that by condemning a papal encyclical and hence the Pope's position, a journalist had not sought to criticise Christianity as a whole, and with Klein v. Slovakia, no. 72208/01, § 51, 31 October 2006, where the Court, likewise departing from the domestic courts' findings, held that very strongly worded statements made by a journalist with respect to a Roman Catholic Archbishop in Slovakia could not be seen as disparaging the adherents of the Catholic Church in that country).

The next question is whether the statements could 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 the cases concerning statements in relation to the Holocaust that have come before the former Commission and the Court, this has, for historical and contextual reasons, invariably been presumed (see paragraphs 209 and 211 above). However, the Court does not consider that the same can be done in this case, where the applicant spoke in Switzerland about events which had taken place on the territory of the Ottoman Empire about ninety years previously. While it cannot be excluded that statements relating to those events could likewise promote a racist and antidemocratic agenda, and do so through innuendo rather than directly, the context does not require this to be automatically presumed, and there is not enough evidence that this was so in the present case. The only element that could denote such an agenda was the applicant's self-professed affiliation with Talaat Pasha. However, the Swiss courts did not elaborate on this point, and there is no evidence that the applicant's membership in the so-called Talaat Pasha Committee was driven by a wish to vilify the Armenians and spread hatred for them rather than his desire to contest the idea that the events of 1915 and the following years had constituted genocide (see, mutatis mutandis, Lehideux and Isorni, cited above, § 53).

Seeking to show that this was the case, the third party Turkish Human Rights Association, Truth Justice Memory Centre and the International Institute for Genocide and Human Rights Studies referred to materials taken from the so-called Ergenekon proceedings (see paragraphs 186 and 187 above). However, it did not produce the originals or full translations of these materials, instead selectively quoting from them. More importantly, those proceedings are still pending on appeal before the Turkish Court of Cassation (see paragraph 27 above), and have given rise to a number of complaints with respect to their fairness, rejected as premature in view of their pendency (see Özkan v. Turkey (dec.), no. 15869/09, 13 December 2011; Göktaş v. Turkey (dec.), no. 59374/10, 13 December 2011; Kireçtepe and Others v. Turkey (dec.), no. 59194/10, 7 February 2012; Güder v. Turkey (dec.), no. 24695/09, §§ 64–65, 30 April 2013; Karabulut v. Turkey (dec.), no. 32197/09, §§ 64–65, 17 September 2013, Tekin, cited above, §§ 64-65; and Yıldırım, cited above, §§ 43–44). These materials cannot therefore be taken into account in the present case.

Nor can an anti-Armenian agenda on the part of the applicant be derived from the two newspaper articles to which that third party referred (see paragraph 187 above). The first, from the daily Vatan, says that after the assassination of Hrant Dink in 2007 the applicant, condemning the assassination, had invited the Armenian Patriarch of Istanbul to recognise that it had been the result of an insidious plot by the United States of America. The second, from the daily Milliyet, concerned anonymous threats to Armenian schools in Istanbul and did not at all mention the applicant (see paragraph 28 above).

More generally, the Swiss Government and some of the third parties sought to portray the applicant as an extremist wont to exercise his right to freedom of expression in an irresponsible and dangerous manner. In the court's view, this cannot be reconciled with the fact that interferences with the exercise of this right by the applicant have twice given rise to judgments of violation in cases brought against him against Turkey. The first of those judgments, given pursuant to an application lodged in 1992, was Socialist Party and Others v. Turkey (25 May 1998, Reports 1998-III). There, the Court found a breach of Article 11 of the Convention in relation to the dissolution of a political party of which the applicant was then chairman. The Court found that the applicant's statements which had prompted the dissolution had contained an invitation to people of Kurdish origin to rally together and assert certain political claims, but no calls to use violence, rebel or otherwise reject democratic principles. They could not have therefore justified the dissolution. The second judgment, given pursuant to an application lodged in 1999, was Perinçek v. Turkey (no. 46669/99, 21 June 2005). There, the Court found that the applicant's criminal conviction in Turkey in relation to similar statements that could not be characterised as hate speech had not been necessary in a democratic society and had therefore given rise to a breach of Article 10 of the Convention.

The fact that the applicant's statements concerned the Armenians as a group cannot in itself serve as a basis to infer a racist agenda either, since, in view of the definition of the term ‘genocide’ in international law (see paragraphs 52 and 54 above), any statements relating to the propriety of classifying a historical event as one are bound to concern a particular national, ethnical, racial or religious group.

For the Court, the applicant's statements, read as a whole and taken in their immediate and wider context, cannot be seen as a call for hatred, violence or intolerance towards the Armenians. It is true that they were virulent and that his position was intransigent, but it should be recognised that they apparently included an element of exaggeration as they sought to attract attention (see, mutatis mutandis, Stankov and the United Macedonian Organisation Ilinden, cited above, § 102, which concerned ‘fierce anti-Bulgarian declarations’ made by members and supporters of an association in the course of rallies organised by it).

The Chamber found that the applicant had not been prosecuted or convicted for attempting to justify a genocide, but merely for denying one. The Swiss Government took issue with that assessment, pointing out that the Swiss Federal Court had, in point 7 of its judgment, found that the massacres and mass deportations of Armenians in 1915 and the following years had constituted crimes against humanity, whose justification also came within the ambit of Article 261 bis § 4 of the Swiss Criminal Code. The Court notes that, as borne out by the court's judgment in Varela Geis v. Spain (no. 61005/09, §§ 45–53, 5 March 2013) — which, incidentally, concerns the case that gave rise to the Spanish Constitutional Court judgment cited in paragraph 96 above — the two charges can be quite different. However, as already noted, the salient issue here is not the legal qualification given to the applicant's statements by the Swiss courts, but whether those statements could, when read as a whole and in their context, be seen as a call for violence, hatred or intolerance. The Court already found that they cannot. It would here just add that, as explained by the Spanish Constitutional Court, genocide justification does not consist in assertions that a particular event did not constitute a genocide, but in statements which express a value judgment about it, relativising its gravity or presenting it as right (see paragraph 97 above). The Court does not consider that the applicant's statements could be regarded as bearing this meaning; nor could they be regarded as justifying any other crimes against humanity.

It follows that the applicant's statements, which concerned a matter of public interest, were entitled to heightened protection under Article 10 of the Convention, and that the Swiss authorities only had a limited margin of appreciation to interfere with them.

Having accepted that the ‘rights of others’ sought to be protected by the interference with the applicant's right to freedom of expression are rights that enjoy protection under Article 8 of the Convention (see paragraph 227 above), the Court must now, for the purposes of the balancing exercise, measure the extent to which the applicant's statements affected those rights.

The Court is aware of the immense importance attached by the Armenian community to the question whether the tragic events of 1915 and the following years are to be regarded as genocide, and of that community's acute sensitivity to any statements bearing on that point. However, it cannot accept that the applicant's statements at issue in this case were so wounding to the dignity of the Armenians who suffered and perished in these events and to the dignity and identity of their descendants as to require criminal law measures in Switzerland. As already noted, the sting of the applicant's statements was not directed towards those persons but towards the ‘imperialists’ whom he regarded as responsible for the atrocities. The parts of his statements that could in some way be seen as offensive for the Armenians were those in which he referred to them as ‘instruments’ of the ‘imperialist powers’ and accused them of ‘carr[ying] out massacres of the Turks and Muslims’. However, as can be seen from the overall tenor of the applicant's remarks, he did not draw from this the conclusion that they had deserved to be subjected to atrocities or annihilation; he rather accused the ‘imperialists’ of stirring up violence between Turks and Armenians (see paragraphs 13 and 16 above). This, coupled with the amount of time that had elapsed since the events to which the applicant was referring, leads the Court to the conclusion that his statements cannot be seen as having the significantly upsetting effect sought to be attributed to them (see, mutatis mutandis, Vajnai, § 57; Orban and Others, § 52, Putistin, § 38, and Jelševar and Others, § 39, all cited above, as well as John Anthony Mizzi v. Malta, no. 17320/10, § 39, 22 November 2011).

Nor is the Court persuaded that the applicant's statements — in which he denied that the events of 1915 and the following years could be classified as genocide but did not dispute the reality of the massacres and mass deportations — could have a severe impact on the Armenians' identity as a group. The Court has already held, albeit in different circumstances, that statements that contest, even in virulent terms, the significance of historical events that carry a special sensitivity for a country and touch on its national identity cannot in themselves be regarded as seriously affecting their addressees (see Stankov and the United Macedonian Organisation Ilinden, cited above, §§ 104–07). It has come to the same conclusion with respect to statements contesting the very identity of a national group (see Association of Citizens Radko and Paunkovski, cited above, §§ 70–75). The Court would not exclude that there might exist circumstances in which, in view of the particular context, statements relating to traumatic historical events could result in significant damage for the dignity of groups affected by such events: for instance, if they are particularly virulent and disseminated in a form that is impossible to ignore. The Court notes in this connection that in Vejdeland and Others (cited above, §§ 8, 56 and 57), where virulently homophobic leaflets had been left in students’ lockers at an upper secondary school, in finding no breach of Article 10 of the Convention it attached particular significance to the fact that the leaflets had been imposed on persons who were ‘at an impressionable and sensitive age’ and who had no possibility not to accept them. But it cannot be said that there were such circumstances in the present case. The only cases in which the former Commission and the Court have accepted the opposite without specific evidence were those relating to Holocaust denial. But, as already noted, this can be regarded as stemming from the very particular context in which those cases unfolded, which has caused the former Commission and the Court to accept that Holocaust denial, even if dressed up as impartial historical research, must invariably be seen as connoting an antidemocratic ideology and anti-Semitism (see paragraphs 234 and 243 above), and must thus, at this stage, be regarded as particularly upsetting for the persons concerned.

Lastly, the Court notes that the applicant's statements were made at three public events. Their impact was thus bound to be rather limited (see, mutatis mutandis, Fáber, cited above, §§ 44–45, and contrast Féret, cited above, § 76, where the Court attached particular significance to the fact that the statements at issue, consisting of stereotyped formulas vilifying a sector of the population, had been made on leaflets distributed in the course of an electoral campaign, thus reaching the entire population of the country).

The comparative law data available to the Court shows that in the past few years there have been fluctuating developments in this domain in the legal systems of the High Contracting Parties. In some — France and Spain — these have been influenced by constitutional case-law (see paragraphs 95-97 above). In others, the impetus behind the developments was the EU Framework Decision 2008/913/JHA (see paragraphs 82-90 above).

The available data thus reveals a spectrum of national positions. Some High Contracting Parties — such as Denmark, Finland, Spain (since the 2007 judgment of its Constitutional Court), Sweden and the United Kingdom — do not criminalise the denial of historical events. Others — such as Austria, Belgium, France, Germany, the Netherlands and Romania — only criminalise, by using different methods, the denial of the Holocaust and Nazi crimes. A third group — such as the Czech Republic and Poland — criminalise the denial of Nazi and communist crimes. A fourth group — such as Andorra, Cyprus, Hungary, Latvia, Liechtenstein, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Slovakia, Slovenia and Switzerland — criminalise the denial of any genocide (see paragraph 99 above). At the European Union level, the applicable provisions have a wide scope but at the same time link the requirement to criminalise genocide denial to the need for it to be capable of producing tangible negative consequences (see paragraph 85 above).

The Swiss Government and some of the third parties expressed doubts about the significance of the comparative perspective, emphasising the different national contexts and perceptions of the need to legislate in this area. The Court acknowledges this diversity. It is nevertheless clear that, with its criminalisation of the denial of any genocide, without the requirement that it be carried out in a manner likely to incite to violence or hatred, Switzerland stands at one end of the comparative spectrum. In these circumstances, and given that in the present case there are other factors which have a significant bearing on the breadth of the applicable margin of appreciation (see paragraphs 241-54 above and 274-78 below), the comparative law position cannot play a weighty part in the court's conclusion with regard to this issue.

The next point to be determined is whether, as argued by some of the third parties, the interference was justified because it was required under Switzerland's international law obligations (see, mutatis mutandis, Jersild v. Denmark, 23 September 1994, §§ 28, 30 and 31 in fine, Series A no. 298, with regard to an interference said to be required under Article 4 of the CERD; Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 56, 57 and 60–66, ECHR 2001-XI; Cudak v. Lithuania [GC], no. 15869/02, §§ 57 and 63–67, ECHR 2010; and Jones and Others v. the United Kingdom, nos. 34356/06 and 40528/06, §§ 189, 196–98 and 201–15, ECHR 2014, with regard to denial of access to court required under the international law relating to foreign State immunities; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §§ 149–51, ECHR 2005-VI, with regard to obligations flowing from a State's membership in the European Union). The principles that govern the examination of a putative conflict between the obligations that a High Contracting Party has under the Convention and its other international law obligations were set out in detail in Nada v. Switzerland ([GC], no. 10593/08, §§ 168-72, ECHR 2012); there is no need to repeat them here, except to emphasise that apparent contradictions should, as far as possible, be avoided by construing the simultaneously applicable provisions in a way that coordinates their effects and avoids opposition between them.

In this case, the Court, having established that the applicant's statements could not be seen as form of incitement to hatred or discrimination, must only determine whether Switzerland was required under its international law obligations to criminalise genocide denial as such. It is not persuaded that this was the case.

In particular, it does not appear that this was made necessary by Switzerland's accession to the CERD. It is true that Article 261 bis of the Swiss Criminal Code was enacted in connection with that accession (see paragraphs 33-37 above and the explanations in this respect contained in point 3.2 of the Swiss Federal court's judgment, cited in paragraph 26 above). However, that Article outlaws many acts apart from genocide denial, and there is no indication that the second clause of its paragraph 4 — the one dealing with genocide denial and serving as a basis for the applicant's conviction — was specifically required under the CERD. Suffice it to note in this connection that the Vaud Cantonal Court said, in paragraph 2 (b) in fine of its judgment, that Article 261 bis § 4 had gone beyond Switzerland's obligations under the CERD (see paragraph 24 above). The same view was taken in the Switzerland's initial report to the UN Committee on the Elimination of Racial Discrimination (see paragraph 64 above).

A perusal of the text of Article 4 of the CERD shows that it does not directly or in terms give expression to a requirement that genocide denial be criminalised as such. It merely says that the States Parties to it undertake to criminalise ‘all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin’, and this — as noted by the Swiss Government at the time when it considered whether Switzerland should accede to the CERD (see paragraph 34 above) — with ‘due regard to … the rights expressly set forth in [A]rticle 5 of [the CERD]’, which include ‘[t]he right to freedom of opinion and expression’ (see paragraph 62 above). Moreover, when acceding to the CERD, Switzerland, acting in line with the recommendation made in Resolution 68 (30) of the Committee of Ministers of the Council of Europe (see paragraph 77 above), reserved the right to take ‘due account of freedom of opinion’ when adopting the legislative measures necessary for the implementation of its Article 4 (see paragraph 63 above). The international body that monitors the CERD's implementation, the UN Committee on the Elimination of Racial Discrimination, recommended that ‘public denials or attempts to justify crimes of genocide and crimes against humanity … be declared as offences punishable by law, provided that they clearly constitute incitement to racial violence or hatred’, but at the same time underlined that ‘ ‘the expression of opinions about historical facts' should not be prohibited or punished’ (see paragraph 66 above).

The Court is not persuaded that Switzerland was required to criminalise genocide denial as such under its other international law obligations either.

The only treaty provision that directly calls for such criminalisation is Article 6 § 1 of the Additional Protocol to the Convention on Cybercrime, which Switzerland has signed but not ratified, and which is not in force in respect of it (see paragraphs 74 and 75 above).

Article III (c) of the Genocide Convention requires States Parties to make punishable the ‘[d]irect and public incitement to commit genocide’. However, the ICTR's case-law on this point shows that while the distinction may, depending on the context, not be watertight, there is nonetheless a considerable difference between direct incitement to genocide and ‘hate speech’ (see paragraphs 57 and 58 above). Nor does it appear that the obligation under Article I of the Genocide Convention to prevent genocide has been interpreted as extending, without qualification, to criminalising ‘hate speech’. In any event, it was already established that the applicant's statements could not be regarded as amounting to an incitement to hatred or discrimination. It cannot therefore be concluded that Switzerland had an obligation to criminalise them under these provisions.

Article 20 § 2 of the ICCPR, which has been in force in respect of Switzerland since 1992, does not in terms and unambiguously call for the criminalisation of genocide denial as such. It requires the prohibition of ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ (see paragraph 67 above). In 2011 the international body that monitors the ICCPR's implementation, the UN Human Rights Committee, expressed the views that ‘[l]aws that penali[s]e the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States [P]arties in relation to the respect for freedom of opinion and expression’, that the ICCPR ‘does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events’, that ‘[r]estrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 [of Article 19] or required under [A]rticle 20’, and that ‘a limitation that is justified on the basis of [A]rticle 20 must also comply with [A]rticle 19 [§] 3’ (see paragraph 71 above).

Nor does it appear that there existed a customary international law rule requiring Switzerland to criminalise genocide denial. State practice, as can be seen from paragraphs 87-97 above, is far from generalised and consistent (see, mutatis mutandis, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), Judgment, I.C.J. Reports 1969, p. 43, § 74). Article 6 § 1 of the above-mentioned Additional Protocol to the Convention on Cybercrime is only applicable to genocide denial committed ‘through a computer system’ and relating to a genocide ‘recognised as such by [a] final and binding decision’ of a competent ‘international court’ (see paragraph 75 above); the explanatory report to the Protocol says that this refers to ‘other international courts set up since 1945 by relevant international legal instruments’, such as the ICTY, the ICTR and the ICC (see paragraph 76 above). Moreover, the second paragraph of that Article allows the States Parties to the Protocol to reserve the right not to apply, in whole or in part, its first paragraph (see, mutatis mutandis, North Sea Continental Shelf Cases, cited above, § 72). The Protocol has to date only been ratified by twenty-four out of the forty-seven Member States of the Council of Europe, and three of those have availed themselves of the possibility not to apply Article 6 § 1 (see paragraph 74 above). It can thus hardly be regarded as enunciating a rule which has attained the status of customary international law (see, mutatis mutandis, X and Others v. Austria [GC], no. 19010/07, § 150, ECHR 2013, and the North Sea Continental Shelf Cases, cited above, § 73, and contrast Van Anraat v. the Netherlands (dec.), no. 65389/09, §§ 90–92, 6 July 2010, where it was found that the rule against the use of mustard gas as a weapon of war in an international conflict, having first been set out in a 1925 treaty, had gone on to attain the status of customary law). The same goes for the rules laid down in EU Framework Decision 2008/913/JHA, which has thus far not been fully implemented by a number of Member States of the European Union (see paragraph 90 above).

It is also noteworthy that most international bodies which have dealt with the point — the UN Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and the UN Independent Expert on the promotion of a democratic and equitable international order — have made inconclusive pronouncements and recommendations in this regard (see paragraphs 66, 71, 72 and 73 above). The ECRI appears to be the only such body that has unequivocally called for the criminalisation of genocide denial: it recommended that the law should penalise, if committed intentionally, ‘the public denial, trivialisation, justification or condoning, with a racist aim, of crimes of genocide, crimes against humanity or war crimes’ (see paragraph 80 above). This was, as clear from its title, a policy recommendation which, however important, is not binding international law.

In sum, there were no international treaties in force with respect to Switzerland that required in clear and explicit language the imposition of criminal penalties on genocide denial as such. Nor does it appear that it was compelled to do so under customary international law. It cannot therefore be said that the interference with the applicant's right to freedom of expression was required under, and could hence be justified by, Switzerland's international law obligations (see, mutatis mutandis, Al-Jedda v. the United Kingdom [GC], no. 27021/08, §§ 100–06, ECHR 2011, and Capital Bank AD v. Bulgaria, no. 49429/99, § 110, 24 November 2005, and contrast Nada, cited above, § 172).

The Court does not consider that it has to review in detail the way in which the Swiss courts arrived at the conclusion that the events of 1915 and the following years had constituted ‘a genocide’ within the meaning of Article 261 bis § 4 of the Swiss Criminal Code. As already noted, this is a point concerning the interpretation and application of Swiss law.

However, the Court is empowered to review the effect that the Swiss courts' rulings on this point had on the applicant's rights under the Convention.

It notes in this connection that in concluding that the events of 1915 and the following years had constituted ‘a genocide’, the Lausanne District Police Court did not analyse the point by reference to the rules of Swiss or international law that define that term, such as Article 264 of the Swiss Criminal Code, Article II of the Genocide Convention and Article 6 of the Rome Statute (see paragraphs 47, 52 and 54 above). It merely referred to a number of acts of official recognition by Swiss, foreign and international bodies, expert reports, legal treatises and textbooks (see paragraph 22 above). For its part, the Vaud Cantonal Court cited the legal provisions which define genocide but found, in points 2 (c) in fine and (d) of its judgment, that the view of the Swiss Parliament on whether the events of 1915 and the following years had constituted one was conclusive (see paragraph 24 above). The Swiss Federal Court overturned this ruling in point 3.4 of its judgment, endorsing, in point 4, the approach taken by the Lausanne District Police Court, and holding that the applicant's arguments relating to the appropriateness of classifying the events as a genocide within the meaning of Article 264 of the Swiss Criminal Code were irrelevant (see paragraph 26 above). As result, it remained unclear whether the applicant was penalised for disagreeing with the legal qualification 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 must be seen as inimical to the possibility, in a ‘democratic society’, to express opinions that diverge from those the authorities or any sector of the population.

In two recent cases under Article 10 of the Convention, the Court upheld the proportionality of interferences which consisted in regulatory schemes limiting the technical means through which freedom of expression may be exercised in the public sphere (see Mouvement raëlien suisse, §§ 49–77, and Animal Defenders International, §§ 106–25, both cited above). By contrast, the form of interference at issue in this case — a criminal conviction that could even result in a term of imprisonment — was much more serious in terms of its consequences for the applicant, and calls for stricter scrutiny.

In Lehideux and Isorni (cited above, § 57), the Court noted, as it has done in many other cases under Article 10 of the Convention, that a criminal conviction was a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies. The same applies here: what matters is not so much the severity of the applicant's sentence but the very fact that he was criminally convicted, which is one of the most serious forms of interference with the right to freedom of expression.

The Court must now, taking into account all of the above factors, determine whether the Swiss authorities struck a proper balance between the applicant's right to freedom of expression and the Armenians' right to the protection of their dignity. As noted in paragraphs 198 and 199 above, the High Contracting Parties are afforded a margin of appreciation in that respect, but only if their authorities have undertaken the balancing exercise in conformity with the criteria laid down in the court's case-law and have duly considered the importance and scope of the rights at stake.

When proposing the enactment of what would later become Article 261 bis § 4 of the Criminal Code, the Swiss Government referred to the potential conflict between, on the one hand, the imposition of criminal penalties for the conduct outlawed under the intended provision and, on the other, the rights to freedom of opinion and association guaranteed under the Swiss Constitution of 1874, then in force, explaining that the two needed to be balanced in individual situations in such a way that only truly blameworthy cases would result in penalties (see paragraph 34 above). These concerns demonstrated that in applying that provision in individual cases the Swiss courts needed carefully to weigh the countervailing interests. Indeed, an interference with the right to freedom of expression that takes the form of a criminal conviction inevitably requires detailed judicial assessment of the specific conduct sought to be punished. In this type of case, it is normally not sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general terms; what is rather required is that it was necessary in the specific circumstances (see, mutatis mutandis, The Sunday Times, cited above, § 65 in fine).

However, a perusal of the reasons for Swiss courts' judgments in the applicant's case does not show that they paid any particular heed to this balance.

The Vaud cantonal courts did not even mention, let alone discuss at any length, the effect of the conviction on the applicant's rights under Article 10 of the Convention or its domestic-law equivalent, Articles 16 and 36 of the 1999 Constitution of the Swiss Confederation (see paragraphs 30 and 31 above).

For its part, the Swiss Federal Court was content to say, in point 5.1 of its judgment (cited in paragraph 26 above), that by section 106(2) of the Federal Court Act 2005 (see paragraph 51 above) it was not required to consider whether the lower courts had breached the applicant's rights under the Swiss Constitution or the Convention as the applicant had not pleaded the point in sufficient detail. This is hard to reconcile with point 6 of that judgment, in which that court found that the applicant had relied on his right to freedom of expression under Article 10 of the Convention, and proceeded to examine whether his conviction had been compatible with that Article. However, in discussing that point it only analysed the conviction's foreseeability and aim: to protect the rights of the Armenians. It said nothing about the conviction's necessity in a democratic society, and did not engage in any discussion of the various factors that bear on that point.

In view of this, the Court finds that it must carry out that balancing exercise itself.

Taking into account all the elements analysed above — that the applicant's statements bore on a matter of public interest and did not amount to a call for hatred or intolerance, that the context in which they were made was not marked by heightened tensions or special historical overtones in Switzerland, that the statements cannot be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland, that there is no international law obligation for Switzerland to criminalise such statements, that the Swiss courts appear to have censured the applicant for voicing an opinion that diverged from the established ones in Switzerland, and that the interference took the serious form of a criminal conviction — the Court concludes that it was not 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.

There has therefore been a breach of Article 10 of the Convention.

It also follows that there are no grounds to apply Article 17 of the Convention (see, mutatis mutandis, United Communist Party of Turkey and Others, § 60; Soulas and Others, § 48; and Féret, § 82, all cited above).