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FIDH (press release) - Human Rights Organizations
Jan 29 2015
European Court of Human Rights should strike a balance between freedom
of expression and the fight against hate speech
FIDH intervenes in the case of Perinçek v Switzerland before the Grand
Chamber of the European Court of Human Rights and calls upon the Court
to strike a balance between freedom of expression and the fight
against hate speech.
Paris-Strasbourg, 28 January 2015. In an international context where
freedom of expression is increasingly threatened, the Perinçek v.
Switzerland case offers the European Court of Human Rights a rare
opportunity to settle the dilemma between freedom of expression and
the fight against hate speech, especially the latter involves
negationism. Given the importance of this issue, FIDH has intervened
in the case by submitting written observations as a third-party
intervenor stating that the negationist discourse on the Armenian
genocide and the supporting hate rhetoric constitute an undeniable
risk of violence and therefore can justify a restriction to freedom of
expression.
"In the light of an inconsistent European case law which is the source
of uncertainty that in turn jeopardises the unimpeded formation of
ideas and democratic debate, the Court is called upon to formally
define the conventional principles that should govern them and the
criteria for interpretations that staunchly protect freedom of
expression and historical discussion without allowing negationist and
hateful discourse to prosper and enjoy impunity" said Karim Lahidji,
President of FIDH.
A Turkish national, Mr. Perinçek, who was sentenced by the Swiss
courts for racial discrimination after having publicly denied, at
various conferences, the existence of any genocide perpetrated by the
Ottoman Empire against the Armenian people in 1915, appealed to the
European Court of Human Rights which ruled in his favour and concluded
that his right to freedom of expression, which is protected by the
Convention, had been violated. To dismiss the charge of rights abuse -
which would be the only justification for limiting rights and freedoms
protected by the European Convention on Human Rights - and reach the
conclusion that freedom of expression, as guaranteed in article 10 of
the Convention, had been violated, the Court determined that what had
been said by the applicant was not the sort of speech that would
incite hate nor violence against the Armenian people, since negation
of Armenian genocide does not breed racial hatred. During the
reexamination of the case by the Grand Chamber of the Court, FIDH felt
that it was important to suggest certain lines of reasoning to the
Court in order to ensure a better balance between protection of
freedom of expression and the ban on hate speech.
"By suggesting that the denial of the Armenian genocide does not
incite hate and violence towards the Armenian people, the Chamber's
decision negates the existence of the hate rhetoric employed by the
Turkish media and authorities against the Armenians, which is the main
cause of violence and threats against their lives", asserted Patrick
Baudouin, Honorary President of FIDH and Coordinator of the FIDH
Litigation Action Group. "Many cases before the European Court of
Human Rights have demonstrated the connection between such rhetoric
and the proven risk of violence", he added.
Furthermore, by linking the potential criminal dismissal of negation
speech to the recognition, by an international court, of the genocide
in question, as is the case for Holocaust, the Court is basing its
conclusion on an erroneous criterion. This criterion not only
contradicts its earlier case-law -which upholds the existence of
clearly established facts and not the court's recognition - but risks
creating a dangerous difference of treatment between two categories of
negation speech and introducing a "hierarchy of genocides".
"Court recognition of a genocide predicates on the vagaries of history
and can be nuanced by other forms of international recognition,"
asserted Karim Lahidji, adding that, "the hateful, discriminatory
intention underlying the negation approach could justify a restriction
to freedom of speech".
In its third party intervention, FIDH puts forth a series of elements
that the Court could use to counterbalance freedom of expression and
the prohibition of incitement to hatred. The elements that must be
taken into account include the content of the contentious statements,
the person speaking, and the context within which the litigious words
were spoken. This approach would elucidate the requirements for
exceptions to freedom of expression, and thus better protect it, all
the while making the provisions used to combat hate speech more
effective.
https://www.fidh.org/International-Federation-for-Human-Rights/council-of-europe/european-court-of-human-rights/16893-european-court-of-human-rights-should-strike-a-balance-between-freedom-of
Jan 29 2015
European Court of Human Rights should strike a balance between freedom
of expression and the fight against hate speech
FIDH intervenes in the case of Perinçek v Switzerland before the Grand
Chamber of the European Court of Human Rights and calls upon the Court
to strike a balance between freedom of expression and the fight
against hate speech.
Paris-Strasbourg, 28 January 2015. In an international context where
freedom of expression is increasingly threatened, the Perinçek v.
Switzerland case offers the European Court of Human Rights a rare
opportunity to settle the dilemma between freedom of expression and
the fight against hate speech, especially the latter involves
negationism. Given the importance of this issue, FIDH has intervened
in the case by submitting written observations as a third-party
intervenor stating that the negationist discourse on the Armenian
genocide and the supporting hate rhetoric constitute an undeniable
risk of violence and therefore can justify a restriction to freedom of
expression.
"In the light of an inconsistent European case law which is the source
of uncertainty that in turn jeopardises the unimpeded formation of
ideas and democratic debate, the Court is called upon to formally
define the conventional principles that should govern them and the
criteria for interpretations that staunchly protect freedom of
expression and historical discussion without allowing negationist and
hateful discourse to prosper and enjoy impunity" said Karim Lahidji,
President of FIDH.
A Turkish national, Mr. Perinçek, who was sentenced by the Swiss
courts for racial discrimination after having publicly denied, at
various conferences, the existence of any genocide perpetrated by the
Ottoman Empire against the Armenian people in 1915, appealed to the
European Court of Human Rights which ruled in his favour and concluded
that his right to freedom of expression, which is protected by the
Convention, had been violated. To dismiss the charge of rights abuse -
which would be the only justification for limiting rights and freedoms
protected by the European Convention on Human Rights - and reach the
conclusion that freedom of expression, as guaranteed in article 10 of
the Convention, had been violated, the Court determined that what had
been said by the applicant was not the sort of speech that would
incite hate nor violence against the Armenian people, since negation
of Armenian genocide does not breed racial hatred. During the
reexamination of the case by the Grand Chamber of the Court, FIDH felt
that it was important to suggest certain lines of reasoning to the
Court in order to ensure a better balance between protection of
freedom of expression and the ban on hate speech.
"By suggesting that the denial of the Armenian genocide does not
incite hate and violence towards the Armenian people, the Chamber's
decision negates the existence of the hate rhetoric employed by the
Turkish media and authorities against the Armenians, which is the main
cause of violence and threats against their lives", asserted Patrick
Baudouin, Honorary President of FIDH and Coordinator of the FIDH
Litigation Action Group. "Many cases before the European Court of
Human Rights have demonstrated the connection between such rhetoric
and the proven risk of violence", he added.
Furthermore, by linking the potential criminal dismissal of negation
speech to the recognition, by an international court, of the genocide
in question, as is the case for Holocaust, the Court is basing its
conclusion on an erroneous criterion. This criterion not only
contradicts its earlier case-law -which upholds the existence of
clearly established facts and not the court's recognition - but risks
creating a dangerous difference of treatment between two categories of
negation speech and introducing a "hierarchy of genocides".
"Court recognition of a genocide predicates on the vagaries of history
and can be nuanced by other forms of international recognition,"
asserted Karim Lahidji, adding that, "the hateful, discriminatory
intention underlying the negation approach could justify a restriction
to freedom of speech".
In its third party intervention, FIDH puts forth a series of elements
that the Court could use to counterbalance freedom of expression and
the prohibition of incitement to hatred. The elements that must be
taken into account include the content of the contentious statements,
the person speaking, and the context within which the litigious words
were spoken. This approach would elucidate the requirements for
exceptions to freedom of expression, and thus better protect it, all
the while making the provisions used to combat hate speech more
effective.
https://www.fidh.org/International-Federation-for-Human-Rights/council-of-europe/european-court-of-human-rights/16893-european-court-of-human-rights-should-strike-a-balance-between-freedom-of