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FREEDOM OF SPEECH AND GENOCIDE
Siranuysh Papyan
Story from Lragir.am News:
http://www.lragir.am/engsrc/interview25338.html
Published: 12:30:38 - 05/03/2012
Interview with Ara Ghazaryan, deputy director of the "Arni Consult" law
office on the law penalizing the denial of the Armenian genocide which
was announced anti-constitutional by the French Constitutional Council
Mr. Ghazaryan, is the law adopted by the French Senate
anti-constitutional?
The decision of the Constitutional Council of France contradicts
the Case Law of the European Court on Human Rights which was formed
based on the decisions adopted against France on cases related to
the Holocaust. We can remember the Garaudy case who was sentenced by
Franc for the rejection of the crime against humanity and his appeal
to the European Court was rejected. The European Court referring to
the Case Law, which was also formed based on cases against France,
ruled that the protection of the right to freedom of speech can't
refer to those, who deny evident facts, such as the Holocaust, since,
this way they reject fundamental values on which the Convention is
based. The Convention's Article 10 supposes for the protection of
freedom of speech, while Article 17 forbids using the Convention
articles for the propaganda of ideas which contradict its spirit and
values. If a person denies the genocide, they can be protected by
the Article 10 of the Convention. In this case, the Constitutional
Council should have either proven that the Armenian genocide is not
a historical fact, which is impossible, since France recognized the
genocide, or it should have rejected the Case Law of the European
Court and rule against the Convention.
Could the president and the government of France not suppose such
course of events?
The decision of the Constitutional Council of France enables
theoretically sentenced people to appeal to the court again. Besides,
it is necessary then to cancel all the court decisions relating to the
Holocaust denial. The Constitutional Court either doesn't recognize
the Armenian genocide, or it decided to review the approach to all
the cases on genocides.
If this question is in the political field, then the jurisprudence is
of help, and if it is in the legal field, the politics hinders it. We
have the second version. Nothing hindered the Constitutional Council
to follow the Case Law. Actually, the Court considered the primacy of
the right to freedom of speech, ignoring Article 17 of the Convention.
Is this the result of the Turkish lobby? How did it achieve these
results under the arguments of the Armenian party?
The Turkish lobby achieved successes in the political field. New basis
for the genocide denial have been formed since June 2011. I mean the
General commentary N34 of the UN Human Rights Committee. The Point
49 runs that the laws penalizing the denial of historical facts are
incompatible with the International Agreement on civil and political
rights.
The Turkish lobby and the French Constitutional Court got used of
this new tendency. Nevertheless, the Case Law in the face of the
Convention is still in force. In this sense, France appeared between
two systems of the UN and Europe which treat the issue on the genocide
denial differently. It is evident that formerly sentenced people for
genocide denials will issue claims to France.
In 1998, the European Court ruled for the first time that a person
rejecting the genocide couldn't enjoy the right to freedom of speech.
In 2003, the European Court reconfirmed its position. In 2012, by
its decision, the Constitutional Council actually issued support to
the position of the UN and disagreement with the interpretation of
the human rights in the Convention.
These two positions of France will keep clashing: they will either
have to provide people with the right to deny genocides, such as
the one of Rwanda, or people should be deprived of this right and be
punished. What is more important for the democratic society? The UN
committee says the freedom of speech is more important, the European
system thinks values are more important. Either the UN or the European
Court should change their position.
Siranuysh Papyan
Story from Lragir.am News:
http://www.lragir.am/engsrc/interview25338.html
Published: 12:30:38 - 05/03/2012
Interview with Ara Ghazaryan, deputy director of the "Arni Consult" law
office on the law penalizing the denial of the Armenian genocide which
was announced anti-constitutional by the French Constitutional Council
Mr. Ghazaryan, is the law adopted by the French Senate
anti-constitutional?
The decision of the Constitutional Council of France contradicts
the Case Law of the European Court on Human Rights which was formed
based on the decisions adopted against France on cases related to
the Holocaust. We can remember the Garaudy case who was sentenced by
Franc for the rejection of the crime against humanity and his appeal
to the European Court was rejected. The European Court referring to
the Case Law, which was also formed based on cases against France,
ruled that the protection of the right to freedom of speech can't
refer to those, who deny evident facts, such as the Holocaust, since,
this way they reject fundamental values on which the Convention is
based. The Convention's Article 10 supposes for the protection of
freedom of speech, while Article 17 forbids using the Convention
articles for the propaganda of ideas which contradict its spirit and
values. If a person denies the genocide, they can be protected by
the Article 10 of the Convention. In this case, the Constitutional
Council should have either proven that the Armenian genocide is not
a historical fact, which is impossible, since France recognized the
genocide, or it should have rejected the Case Law of the European
Court and rule against the Convention.
Could the president and the government of France not suppose such
course of events?
The decision of the Constitutional Council of France enables
theoretically sentenced people to appeal to the court again. Besides,
it is necessary then to cancel all the court decisions relating to the
Holocaust denial. The Constitutional Court either doesn't recognize
the Armenian genocide, or it decided to review the approach to all
the cases on genocides.
If this question is in the political field, then the jurisprudence is
of help, and if it is in the legal field, the politics hinders it. We
have the second version. Nothing hindered the Constitutional Council
to follow the Case Law. Actually, the Court considered the primacy of
the right to freedom of speech, ignoring Article 17 of the Convention.
Is this the result of the Turkish lobby? How did it achieve these
results under the arguments of the Armenian party?
The Turkish lobby achieved successes in the political field. New basis
for the genocide denial have been formed since June 2011. I mean the
General commentary N34 of the UN Human Rights Committee. The Point
49 runs that the laws penalizing the denial of historical facts are
incompatible with the International Agreement on civil and political
rights.
The Turkish lobby and the French Constitutional Court got used of
this new tendency. Nevertheless, the Case Law in the face of the
Convention is still in force. In this sense, France appeared between
two systems of the UN and Europe which treat the issue on the genocide
denial differently. It is evident that formerly sentenced people for
genocide denials will issue claims to France.
In 1998, the European Court ruled for the first time that a person
rejecting the genocide couldn't enjoy the right to freedom of speech.
In 2003, the European Court reconfirmed its position. In 2012, by
its decision, the Constitutional Council actually issued support to
the position of the UN and disagreement with the interpretation of
the human rights in the Convention.
These two positions of France will keep clashing: they will either
have to provide people with the right to deny genocides, such as
the one of Rwanda, or people should be deprived of this right and be
punished. What is more important for the democratic society? The UN
committee says the freedom of speech is more important, the European
system thinks values are more important. Either the UN or the European
Court should change their position.