PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE NUSSBERGER

Debates on history as part of freedom of expression

Assessing, evaluating and commenting on historical events are prerequisites for living peacefully together in society, being conscious of what has happened in the past and assuming responsibility where necessary. There is not one historical truth that could remain permanently immutable. On the contrary, new research and new discoveries of documents and evidence may shed new light on what has been deemed to be an uncontested view. Therefore, debate and discussion about history is an essential part of freedom of expression and should in principle never be curtailed in a democratic society, especially not by defining taboos on what events have to be excluded from free assessment in public debate or by establishing certain “official views” that must not be contested.

Nevertheless, limits may be necessary if debate on history degenerates into the incitement of hatred against a specific group and is used exclusively in order to attack the dignity of others and to violate their most intimate feelings. The most famous example is Holocaust denial, which has been made a criminal offence in several jurisdictions (compare, for instance, the legislation in Germany, Austria and Belgium as outlined in paragraph 91 of the judgment). Such measures have been generally accepted in the Court’s case-law (see paragraphs 209-12 of the present judgment).

Seen against this background the finding of a violation in the present case raises important questions concerning the consistency of the Court’s case-law. Why should criminal sanctions for denial of the characterisation of the massacres of Armenians in Turkey in 1915 as “genocide” constitute a violation of freedom of expression, whereas criminal sanctions for Holocaust denial have been deemed compatible with the Convention?

Points of dissent with the majority’s approach

I have voted in favour of finding a violation in this case. But concerning the crucial question of the distinction between Holocaust denial and denial of the genocide of the Armenian people in 1915, I can accept neither the answer given by the majority of the Chamber (see paragraph 117 of the Chamber judgment) nor the answer given by the majority of the Grand Chamber (see paragraphs 242-43 of the present judgment).

I do not agree that there has been a substantive violation of freedom of expression in the present case. In my view there has only been a procedural violation, which is due to the lack of legal certainty and the lack of balancing of the rights involved (compare, as examples of procedural violations of Article 10 of the Convention, Association Ekin v. France , no. 39288/98, § 58, ECHR 2001-VIII, and Lombardi Vallauri v. Italy , no. 39128/05, § 46, 20 October 2009). The conflict between the applicant’s freedom to doubt the veracity of what is considered to be the “historical truth” and the protection of the Armenians’ sense of their historical identity and their feelings should have been resolved in a clear and foreseeable way by the Swiss legislation. Article 261 bis § 4 of the Criminal Code, however, fails to do so. And the Swiss courts were unable to make up for this deficiency.

Distinction between the Court’s case-law on Holocaust denial and the present case

The Chamber and the Grand Chamber relied on different arguments in order to distinguish the present case from cases involving Holocaust denial. The Chamber expressed doubts as to the existence of a “general consensus” on the question whether the events that took place during 1915 and subsequent years in Turkey could be characterised as “genocide” of the Armenian people. On this basis it drew a distinction between the criminal sanctions imposed on account of the applicant’s speeches and cases concerning denial of crimes relating to the Holocaust (see paragraph 117 of the Chamber judgment). Although the Chamber stated that it was not its task to evaluate historical events (see paragraph 99 of the Chamber judgment), its reasoning seems to be based on the assumption of a different degree of certainty about what happened in Turkey in 1915 and in Germany during the Nazi regime. This approach might be (mis)understood as an assessment of the validity of knowledge about historical facts.

The majority of the Grand Chamber distance themselves from this approach and argue that “the justification for making [Holocaust denial] a criminal offence lies not so much in that it is a clearly established fact” (see paragraph 243 of the present judgment). Instead, they see the context as the relevant element, referring to geographical and historical factors (see paragraphs 242-48 of the present judgment), as well as to the time factor (see paragraphs 249-50 of the present judgment). According to this view, the States where the prohibition of Holocaust denial has been deemed compatible with the Convention are those which have “experienced the Nazi horrors, and which may be regarded as having a special moral responsibility to distance themselves from the mass atrocities that they have perpetrated or abetted” (see paragraph 243 of the present judgment). The majority are unable to find such a link of responsibility between Switzerland and the events that took place in the Ottoman Empire (see paragraph 244 of the present judgment). Furthermore, the majority refer to the time factor and argue that the lapse of time between the commission of atrocities and the resurgence of a controversial debate attenuates the effects of critical statements.

I cannot agree with this approach. For me it is not only “laudable, and consonant with the spirit of universal protection of human rights, ... to seek to vindicate the rights of victims of mass atrocities regardless of the place where they took place” (see paragraph 246 of the present judgment), but this is wholly sufficient to justify legislation of this kind. It is a “choice of society” (see S.A.S. v. France [GC], no. 43835/11, § 153, ECHR 2014) which the Court has to accept. Legislation expressing solidarity with victims of genocide and crimes against humanity must be possible everywhere, even if there are no direct links to the events or the victims, even if a long period of time has elapsed, and even if the legislation is not directly aimed at preventing conflicts. Each society must be free to settle the conflict between free and unrestricted debate on historical events and the personality rights of victims and their descendants in accordance with its vision of historical justice in the case of what is alleged to be a genocide.

The choice of society, however, has to be based on a transparent and open democratic debate in society and has to be laid down in law in such a way as to make it clearly foreseeable what statements are allowed and what statements are not only taboo, but attract criminal sanctions. Doubts regarding criminal responsibility may suffocate historical debate from the very outset, and may cause historians not to touch upon a certain subject any more. The legislation on Holocaust denial in Germany, Austria, and Belgium which the Court has assessed so far (see paragraphs 209-12 of the present judgment) has been unequivocal in this context. All the relevant laws directly refer to the “National Socialist regime” (see the references to the relevant provisions in paragraph 91 of the judgment). In France the legislation refers to denial of crimes against humanity, as defined in Article 6 of the Charter of the International Military Tribunal, annexed to the London Agreement of 8 August 1945 (see paragraph 91 of the judgment), thus likewise making it clear which historical events are meant.

Procedural violation of Article 10 of the Convention

Contrary to the situations referred to above, the legislative process in Switzerland was not focused on the “Armenian question”. Instead, it took the form of a general debate on prohibiting denial of genocide and crimes against humanity, in which this aspect was only mentioned as an example (compare the documents on the legislative process in paragraphs 37-38 of the judgment, as well as the explicit analysis of the legislative process by the Swiss courts in paragraphs 22-26 of the present judgment). Neither was the example of the Armenian genocide taken up in the text of Article 261 bis § 4 of the Criminal Code.

The criminal provision of Article 261 bis § 4 is worded in such a way that it is unclear whether the courts applying the provision have to decide themselves on the characterisation of a historical event as “genocide” and, if so, on what basis. This insurmountable difficulty is amply illustrated by the decisions of the Swiss courts. While international law and Swiss national law provide a clear definition of “genocide” (see paragraphs 47 and 52-54 of the judgment) on which the courts can rely, they struggle to determine which methodology to use in order to reach a decision on the legal characterisation of an event dating so far back in history (reference to scientific literature, to political statements by State bodies and international institutions, and so on – see paragraphs 22-26 of the present judgment). They are confronted with the problem that there is neither a judgment of an international court nor unanimity in the debate at national and international level, be it among academics or politicians. Thus, the Swiss Federal Court cannot but refer to what it calls “enough of a general consensus, especially among historians” (point 4.3 of the Swiss Federal Court’s judgment, quoted in paragraph 26 of the present judgment). Can that be sufficient for a criminal conviction for an opinion which doubts the characterisation of “genocide”?

In my view this illustrates that the Swiss legislature has failed to balance the rights protected under Article 8 and those protected under Article 10 as far as the debate on the events in Turkey in 1915 is concerned. In such a sensitive area it cannot be sufficient to legislate on the conflicting rights in the abstract without reference to the specific historical case. This is the relevant difference between the present case and the cases involving Holocaust denial, where the limits of historical debate were clearly defined on the basis of national legislation and where the courts could therefore take the legal characterisation of the Holocaust as “genocide” as the starting-point for their assessment of criminal responsibility. Leaving substantial doubts in such an important debate endangers freedom of expression more than is necessary in a democratic society.

Therefore I have voted in favour of finding a (procedural) violation of Article 10 of the Convention, and also in favour of carrying out a separate examination of the case under Article 7 of the Convention.