Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Guido Raimondi;Helen Keller;Helena Jäderblom;Ján Šikuta;Johannes Silvis;Josep Casadevall;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Peer Lorenzen;Stefan Trechsel;Vincent A. De Gaetano

The applicant was born in 1942 and lives in Ankara.

He is a doctor of laws and chairman of the Turkish Workers’ Party.

In 2005 the applicant took part in three public events in Switzerland.

The first was a press conference held in front of the Château d’Ouchy in Lausanne (Canton of Vaud) on 7 May 2005. In the course of that press conference, he made the following statement in Turkish:

“Let me say to European public opinion from Bern and Lausanne: the allegations of the ‘Armenian genocide’ are an international lie. Can an international lie exist? Yes, once Hitler was the master of such lies; now it’s the imperialists of the USA and EU! Documents from not only Turkish but also Russian archives refute these international liars. The documents show that imperialists from the West and from Tsarist Russia were responsible for the situation boiling over between Muslims and Armenians. The Great Powers, which wanted to divide the Ottoman Empire, provoked a section of the Armenians, with whom we had lived in peace for centuries, and incited them to violence. The Turks and Kurds defended their homeland from these attacks. It should not be forgotten that Hitler used the same methods – that is to say, exploiting ethnic groups and communities – to divide up countries for his own imperialistic designs, with peoples killing one another. The lie of the ‘Armenian genocide’ was first invented in 1915 by the imperialists of England, France and Tsarist Russia, who wanted to divide the Ottoman Empire during the First World War. As Chamberlain later admitted, this was war propaganda. ... The USA occupied and divided Iraq with the Gulf Wars between 1991 and 2003, creating a puppet State in the north. They then added the oilfields of Kirkuk to this State. Today, Turkey is required to act as the guardian of this puppet State. We are faced with imperialist encirclement. The lies about the ‘Armenian genocide’ and the pressure linked to the Aegean and Cyprus are interdependent and designed to divide us and take us hostage. ... The fact that successive decisions have been taken that even refer to our liberation war as a ‘crime of humanity’ shows that the USA and EU have included the Armenian question among their strategies for Asia and the Middle East ... For their campaign of lies about the ‘Armenian genocide’, the USA and EU have manipulated people with Turkish identity cards. In particular, certain historians have been bought and journalists hired by the American and German secret services to be transported from one conference to another. ... Don’t believe the Hitler-style lies such as that of the ‘Armenian genocide’. Seek the truth like Galileo, and stand up for it.”

The second event was a conference held in the Hilton hotel in Opfikon (Canton of Zürich) on 22 July 2005 to commemorate the 1923 Treaty of Lausanne (Treaty of Peace signed at Lausanne on 24 July 1923 between the British Empire, France, Italy, Japan, Greece, Romania and the Serb-Croat-Slovene State, on the one part, and Turkey, on the other part, 28 League of Nations Treaty Series 11). In the course of that conference, the applicant spoke first in Turkish and then in German, and said the following:

“The Kurdish problem and the Armenian problem were therefore, above all, not a problem and, above all, did not even exist ...”

After that, the applicant handed out copies of a tract written by him, entitled “The Great Powers and the Armenian question”, in which he denied that the events of 1915 and the following years had constituted genocide.

The third event was a rally of the Turkish Workers’ Party held in Köniz (Canton of Bern) on 18 September 2005. In the course of that rally, the applicant made the following statement in German:

“ ... even Lenin, Stalin and other leaders of the Soviet revolution wrote about the Armenian question. They said in their reports that no genocide of the Armenian people had been carried out by the Turkish authorities. This statement was not intended as propaganda at the time. In secret reports the Soviet leaders said – this is very important – and the Soviet archives confirm that at that time there were occurrences of ethnic conflict, slaughter and massacres between Armenians and Muslims. But Turkey was on the side of those defending their homeland and the Armenians were on the side of the imperialist powers and their instruments ... and we call on Bern, the Swiss National Council and all parties of Switzerland: Please take an interest in the truth and leave these prejudices behind. That is my observation, and I have read every article about the Armenian question and these are merely prejudices. Please leave these prejudices behind and join (??), what he said about these prejudices, and this is the truth, there was no genocide of the Armenians in 1915. It was a battle between peoples and we suffered many casualties ... the Russian officers at the time were very disappointed because the Armenian troops carried out massacres of the Turks and Muslims. These truths were told by a Russian commander ...”

On 15 July 2005 the Switzerland-Armenia Association lodged a criminal complaint against the applicant on account of the first of the above-mentioned statements. The investigation was then expanded to cover the other two oral statements as well. On 23 July 2005 the applicant was interviewed by the Winterthur public prosecutor in relation to the statement that he had made in the Hilton hotel in Opfikon. On 20 September 2005 he was interviewed by a cantonal investigating judge in the Canton of Vaud.

On 27 April 2006, considering that the three statements made by the applicant fell within the ambit of Article 261 bis § 4 of the Criminal Code (see paragraph 32 below), the competent cantonal investigating judge of the Canton of Vaud decided to commit the applicant for trial.

The trial took place before the Lausanne District Police Court on 6 and 8 March 2007.

On 6 March 2007 the court heard the applicant, the public prosecutor, and the Switzerland-Armenia Association, which had been constituted civil party. The court then went on to hear six professional historians – one American, three French, one German and one British – and one sociologist that the parties had called to give evidence.

On 8 March 2007 counsel for the applicant asked the court to gather further evidence in relation to the events of 1915 and the following years. The court rejected the request, holding that it was dilatory and would lead to an adjournment of the proceedings. More importantly, it was not necessary to take more evidence on this point, given that these events had been analysed by “hundreds of historians for decades” and had been the “object of innumerable publications”. The court had already heard such evidence by the historians called by the applicant and the civil party, which they regarded as the most competent in relation to this topic. It would therefore be superfluous to take further evidence in relation to it.

On 9 March 2007 the Lausanne District Police Court found the applicant guilty of the offence under Article 261 bis § 4 of the Criminal Code (see paragraph 32 below) and ordered him to pay ninety day-fines of 100 Swiss francs (CHF – 62 euros (EUR) at that time) each, suspended for two years, a fine of CHF 3,000 (EUR 1,859 at that time), which could be replaced by thirty days’ imprisonment, and the sum of CHF 1,000 (EUR 620 at that time) in compensation to the Switzerland-Armenia Association for non-pecuniary damage. The court held:

“I. The defendant

Dogu Perinçek was born in Gaziantep, Turkey on 17 June 1942. He is a Turkish politician resident in that country. After some ten months’ manual employment in Germany, between 1962 and 1963, he studied law at the University of Ankara and was awarded his doctorate in 1968. He is the founder of an extreme left-wing journal. In 1969, he founded the Revolutionary Worker-Peasant Party of Turkey. Dogu Perinçek can be defined as a left-wing extremist and a follower of Lenin or Mao. He spent several years in prison in the 1980s on account of his political views. He is currently the General Chairman of the Turkish Workers’ Party, which represents 0.5% of the Turkish electorate. Dogu Perinçek describes himself as a cultivated person with a very good knowledge of history. He speaks fluent German.

In his personal life, the defendant is married and the father of four children, three of whom are adults. He states that he earns about CHF 3,000.00 per month. Part of his income comes from royalties and an old-age pension. He also benefits from his wife’s income. He states that his financial situation is healthy. He has never had a criminal conviction in Switzerland. No account will be taken of his criminal convictions in Turkey because, to the Court’s knowledge, they relate to political offences. It may also be noted that the European Court of Human Rights has found against Turkey on two occasions in cases concerning the defendant. He will therefore be treated as a person being prosecuted for the first time.

II. The facts and the law

This case does not, in itself, present any factual problems. To simplify matters, a copy of the committal order made by the cantonal investigating judge on 27 April 2006, which specifies that Dogu Perinçek was committed for trial in this court following an adversarial hearing, and not in absentia, as the indictment indicates, can be appended to this judgment.

On 7 May 2005 in Lausanne, then on 18 September 2005 in Köniz, BE, Dogu Perinçek stated publicly that the Armenian genocide was an international lie. The defendant also acknowledges that on 22 July 2005 he stated in connection with the Armenian genocide that the problem of the Armenians, like that of the Kurds, had never been a problem and that it (the genocide) had never existed (paragraph 2 of the committal order).

There is no dispute as to the facts since Dogu Perinçek admits to denying the Armenian genocide. He therefore comes within the scope of Article 261 bis of the Criminal Code, under which he is charged. Dogu Perinçek acknowledges that massacres took place but justifies them in the name of the laws of war and maintains that the massacres were perpetrated by the Armenian as well as by the Turkish side. He also acknowledges that the Turkish Ottoman Empire moved thousands of Armenians from the borders of Russia towards what are now Syria and Iraq, but denies totally the genocidal nature of these deportations. He maintains that at most these deportations reflected security needs. He has even claimed that the Ottoman troops were acting to protect the Armenians in the conflict between the Ottoman Empire and Russia. Moreover, he has often stated in public that the Armenians, or at least some of them, were traitors, as they were allied to the Russians against the troops of the Empire. The defendant has received varying degrees of support for his opinions from the historians whom he called to give evidence to the court. The historians called by the civil party have disagreed totally with him. In this context, it should be noted that in response to Dogu Perinçek’s comments, the Switzerland-Armenia Association filed a complaint against him on 15 July 2005. The association’s civil-party claims will be considered later.

Like the parties, the Court recognises that denying the existence of a massacre as such, however large-scale, is not in itself covered by Article 261 bis of the Criminal Code. As the law clearly states, it has to concern a genocide as defined by, for example, the International Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute. In its submissions, the defence maintained that when it drew up Article 261 bis of the Criminal Code, Parliament only had in mind the genocide of the Jews in the Second World War. The defence also argued that to be entitled to the protection of Article 261 bis, a genocide must necessarily be recognised as such by an international court of justice. It stressed that the Armenian genocide had not been universally recognised, in particular not by Turkey, and that certain historians shared Dogu Perinçek’s opinions. It concluded, first, that as the situation was unclear and, second and above all, that as the genocide of the Armenians had not been recognised by an international court of justice, Dogu Perinçek’s denial of the Armenian genocide could not come within the scope of Article 261 bis of the Criminal Code. It told the Court that the latter could not act as historian and noted in that particular regard that it had made an interlocutory application during the hearing for the Court to establish a neutral committee of historians to investigate whether or not the 1915-17 massacres had constituted a genocide.

The civil party and the prosecution contend that it is a sufficient and necessary condition that a genocide be widely recognised and that it is for the Court to take formal note of this international recognition. It does not have to transform itself into a self-taught historian. The courts rule on the facts and the law. The civil party and the prosecution consider that the Armenian genocide is a well-known fact, whether or not it has been recognised by an international court of justice. The opposing parties at least agree on one point, namely that it is not for the Court to write history. The Court is of the same opinion as all the parties. There will not therefore be any gaps in this judgment if it does not refer to the views of the historians who have given evidence to the Court or to the exhibits produced by the civil party or the defence.

The first question that has to be asked is therefore whether the genocides acknowledged by Swiss criminal law are confined to those recognised by an international court of justice. The Court has several means at its disposal for answering this question. From the standpoint of a literal interpretation, Article 261 bis of the Criminal Code refers only to genocide. It does not, for example, refer to ‘a genocide recognised by an international court of justice’. Nor does it specify ‘the genocide of the Jews, to the exclusion of the genocide of the Armenians’. Is this an omission of Parliament?

The historical interpretation that is also available to the Court provides the answer. According to the Official Gazette of the National Council, the legislators referred explicitly to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and quoted, by way of example, the genocide of the Kurds and the Armenians (BO/CN [Official Gazette/National Council] 1993, p. 1076). From a historical standpoint, therefore, it can be inferred that Parliament took the Armenian genocide as an example when drafting Article 261 bis of the Criminal Code (Combi report). It must therefore be recognised that the legislators did not simply have the genocide of the Jews in mind when they drew up Article 261 bis.

By referring explicitly to the genocide of the Armenians and the Kurds, Parliament also wished to show that it was not necessary for the genocide to be recognised by an international court of justice. As noted, there was an explicit reference to the Convention against Genocide of 9 December 1948. Legal theorists support this view. For example, according to Corboz (Bernard Corboz, Les infractions en droit Suisse, vol. II, p. 304), the genocide must be established. It can be inferred from this statement that it is necessary and sufficient for the genocide to be recognised, without necessarily having been granted recognition by an international court or any other supranational body likely to be binding on the courts (an example might be a commission of historians with internationally acknowledged expertise). According to Trechsel (Stefan Trechsel, Kurzkommentar, ad Article 261 bis no. 35), in the context of genocide denial, German legal theory openly acknowledges the ‘Auschwitz lie’, but the denial of another genocide is also covered by Article 261 bis of the Criminal Code.

In his thesis, Alexandre Guyaz reaches the same conclusion (Alexandre Guyaz, L’incrimination de la discrimination raciale, thesis, Lausanne, 1996 p. 300). The following extract may be cited:

‘Criminal law embodies here a broader approach to revisionism, since Article 261 bis § 4 is not confined to denial of crimes against humanity committed by the National Socialist regime. This wide scope has been confirmed unequivocally by the National Council, which, at second reading, amended the French text by replacing the term ‘the genocide’ with ‘a genocide’, thereby alluding to all genocides that might unfortunately take place’.

It is therefore both necessary and sufficient for a genocide to have taken place. But this genocide must be known and recognised: Corboz refers to an established genocide (Corboz, op. cit.).

What then of the situation in our country?

With regard to Switzerland, the Court notes that the National Council has approved a non-binding parliamentary motion (postulat) recognising the genocide (the Buman motion). The motion was approved on 16 December 2003. As noted earlier, the Armenian genocide served as a basis for the drafting of Article 261 bis of the Criminal Code (Combi report). The parliamentary motion was approved against the advice of the Federal Council, which apparently considered that the matter should be the preserve of historians. Yet it was this same Federal Council that expressly cited the Armenian genocide in its dispatch of 31 March 1999 on the Convention on the Prevention and Punishment of the Crime of Genocide, which was to serve as the basis of the current Article 264 of the Criminal Code criminalising genocide (Feuille fédérale [“FF” – Federal Gazette], 1999, pp. 4911 et seq.). The University of Lausanne has used the Armenian genocide as an example in a published work on humanitarian law. School history textbooks deal with the genocide of the Armenians. It may also be pointed out that the governments of Vaud and Geneva have recognised the Armenian genocide: on 5 July 2005 for the Canton of Vaud and on 25 June 1998 for the Republic and Canton of Geneva, whose President was Micheline Calmy-Rey, our current Minister for Foreign Affairs. This rapid overview enables the Court to conclude that the Armenian genocide is an established historical fact according to Swiss public opinion. The current position of the Federal Council, characterised by extreme caution when it is not inconsistent, changes absolutely nothing. It is easy to understand why a government prefers not to become involved in particularly sensitive issues. The international repercussions which this case has had are noteworthy.

Looking beyond our frontiers, several countries, including France, have recognised the Armenian genocide. To take just the example of France, according to Yves Ternon, the Act of 29 January 2001 was based on the opinion of a group of some hundred historians. In item 15 of the defence’s list no. 1, Jean-Baptiste Racine, in his book on the Armenian genocide, says that States’ recognition has often been in response to initiatives taken by the academic community. These decisions are not, therefore, taken lightly, particularly since recognition of the Armenian genocide can adversely affect an individual country’s relations with Turkey.

The Armenian genocide has also been recognised by international bodies. Admittedly, it has received very little prominence in the United Nations. The only really significant reference to the event is in the Whitaker report (Jean-Baptiste Racine, op cit., p. 73 item 96). The European Parliament, on the other hand, first started to consider the Armenian issue in 1981. The relevant committee rapporteur, whose report, according to Jean-Baptiste Racine, was meticulously argued and documented, said that:

‘The events of which the Armenians of Turkey were victims during the war years of 1915-17 must be considered a genocide according to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.’

On 18 June 1987, the European Parliament finally adopted a resolution recognising the Armenian genocide.

This genocide has also been recognised by the Council of Europe. For information, the Council of Europe has some fifty member States. It is dedicated to defending the values of democracy and human rights. Its headquarters in Strasbourg is also the seat of the European Court of Human Rights, which is responsible for applying the 1950 Convention of the same name (on all these matters, see Jean-Baptiste Racine, op. cit. pp. 66 et seq.).

It must therefore be acknowledged that the Armenian genocide is an established historical fact.

It then has to be asked whether Dogu Perinçek acted intentionally. This amounts to asking whether he could have believed, in good faith, that he was not acting wrongfully, in other words that he was not denying the obvious when stating, on no fewer than three occasions, that the Armenian genocide had not existed, and that it was an ‘international lie’.

Dogu Perinçek has acknowledged during the investigation and at the trial that he knew that Switzerland, like many other countries, recognised the Armenian genocide. Moreover, he would never have described it as an ‘international lie’ if he had not known that the international community did indeed consider these events to be a genocide. He even stated that he considered the Swiss law to be unconstitutional.

The defendant is a doctor of laws. He is a politician. He describes himself as a writer and historian. He is aware of the arguments of those who disagree with him. He has quite simply chosen to ignore them and proclaim that the Armenian genocide never took place. Dogu Perinçek cannot therefore claim, or believe, that the genocide did not exist. Moreover, as the Public Prosecutor stated in his address, Dogu Perinçek has formally stated that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place stance. It can be concluded, without question, that for the defendant genocide denial is, if not an article of faith, at least a political slogan with distinct nationalist overtones.

Legal theory is unanimous in considering that there has to be a racist motive. It is clear that Dogu Perinçek’s motives appear to be racist and nationalistic. This is a very long way from historical debate. As noted by the prosecution, Dogu Perinçek speaks of an imperialist plot to undermine Turkey’s greatness. To justify the massacres, he resorts to the laws of war. He has described the Armenians as being the aggressors of the Turkish people. He is a follower of Talaat Pasha – the defendant is a member of the eponymous committee – who, together with his two brothers, was historically the initiator, instigator and driving force of the Armenian genocide.

Dogu Perinçek meets all the subjective and objective conditions required by Article 261 bis of the Criminal Code.

He must be found guilty of racial discrimination.

III. The penalty

Dogu Perinçek appears to be an intelligent and cultivated person, which makes his stubbornness all the less understandable. He is a provocateur. He has displayed a certain arrogance towards the Court in particular, and towards Swiss laws in general. He is unable to adduce any attenuating circumstances. There are multiple offences because the defendant has discriminated against the Armenian people, by denying their tragic history, on three occasions in three different places. His mode of action amounts to that of an agitator. The terms used, such as international lie, are particularly virulent. Under these circumstances, the Court agrees with the prosecution that a sentence of ninety days is an appropriate penalty for the conduct of the defendant.

In his address, the Public Prosecutor proposed that the day-fine be set at CHF 100.00. It was noted in the section on personal information that Dogu Perinçek’s financial situation was healthy. CHF 3,000.00 is undoubtedly a good salary in Turkey. The defendant was able to entrust his defence to counsel of his choice. He travelled from Turkey to Switzerland and during the several days of the trial stayed in the Beau-Rivage Palace (p. 61). All this reveals a certain measure of affluence and the proposed sum of CHF 100.00 is far from excessive.

Under the law as it formerly stood, the Court would have been unable to make a favourable assessment of Dogu Perinçek’s future conduct. Nowadays, suspended terms of imprisonment are the norm, in the absence of any particularly unfavourable circumstances, which is not the case here. Dogu Perinçek is a foreigner in our country. He will return to his own land. He was formally warned by the Court that if he persisted in denying the Armenian genocide he could be liable to another criminal investigation and risk a further conviction with the possibility, crucially, of the suspension of his sentence being revoked. It considers that this threat should alone be sufficient to deter the defendant from reoffending, so the fine that it orders to be paid will be accompanied by a suspended term of imprisonment. He will be given a substitute fine of CHF 3,000.00 as a significant immediate penalty, the equivalent of 30 days’ imprisonment.

IV. Civil law claims and costs

The Switzerland-Armenia Association, through its counsel, seeks CHF 10,000.00 in compensation for non-pecuniary damage and the same sum for costs incurred in the criminal proceedings. In accordance with its articles of association and the law (Article 49 of the Code of Obligations) the Switzerland-Armenia Association is entitled to claim compensation for non-pecuniary damage. It is difficult to award an association compensation of this sort because, by definition, legal entities are devoid of feelings. The Court will therefore confine itself to awarding a token sum of CHF 1,000.00 as compensation.

The case was sufficiently complex to justify the involvement of counsel. In view of the amount of work performed by this professional officer, the Court will award a sum of CHF 10,000.00 to the civil party as a contribution to its counsel’s fees. It is not appropriate to award these sums personally to Sarkis Shahinian, who is the association’s representative.

Dogu Perinçek will meet all the costs of the case.”

The applicant appealed against that judgment, seeking to have it set aside and additional investigative measures taken to establish the state of research and the position of historians on the events of 1915 and the following years. The Switzerland-Armenia association also appealed, but later withdrew its appeal.

On 13 June 2007 the Criminal Cassation Division of the Vaud Cantonal Court dismissed the appeal in the following terms:

“... C. Dogu Perinçek has duly appealed against the original judgment. As his main submission, he has appealed on grounds of nullity and applied to have additional investigative measures taken with a view to establishing the current state of research and the position of historians on the Armenian question. In the alternative, he has lodged an ordinary appeal, seeking to have the judgment varied so as to clear him of the charge of racial discrimination under Article 261 bis § 4, second sentence, of the Criminal Code, exempt him from paying costs and discharge him of any obligation to pay the complainant and the civil party compensation or criminal costs.

The Switzerland-Armenia Association, which had also appealed, has withdrawn its appeal and has now filed a memorial.

The law

Since the appellant’s submissions include both an appeal on grounds of nullity and an ordinary appeal, the Court of Cassation must determine the order in which the grounds relied on should be examined, according to their particular nature and the issues raised (Bersier, Le recours à la Cour de cassation pénale du Tribunal cantonal en procédure vaudoise, in JT 1996 III 66 et seq., esp. pp. 106 et seq. and the references cited; Besse-Matile and Abravanel, Aperçu de jurisprudence sur les voies de recours à la Cour de cassation pénale du Tribunal cantonal vaudois, in JT 1989 III 98 et seq., esp. p. 99 and the references cited).

In support of his grounds of nullity, the appellant alleges a violation of Article 411, letters (f), (g), (h) and (i) of the Code of Criminal Procedure. These provisions concern grounds of nullity that justify setting the decision aside only if the irregularity found has influenced or could influence the judgment (Bersier, op. cit., p. 78). Normal practice is for the ordinary grounds of appeal to be examined before the related grounds of nullity (Bovay, Dupuis, Moreillon, Piguet, Procédure pénale vaudoise, Code annoté, Lausanne 2004, no. 1.4. ad Article 411).

The grounds of nullity raised by the appellant mainly concern factual matters that must only be considered if they are relevant to the legal outcome. In this particular case, the Court should first consider the ordinary grounds of appeal, namely the meaning and scope of Article 261 bis of the Criminal Code, and determine whether, in this particular context, the lower court may, exceptionally, make a historical judgment (see Chaix and Bertossa, La répression de la discrimination raciale: Loi d’exception? in SJ 2002 p. 177, esp. p. 184).

I Ordinary appeal

(a) The appellant objects to the first-instance court’s application of Article 261 bis of the Criminal Code. He submits, firstly, that it is for the courts to perform the task of a historian and as such to determine whether an Armenian genocide took place before applying Article 261 bis. In his view such a genocide has not been established. He therefore considers that the Court has misinterpreted the notion of genocide and the scope of Article 261 bis in this regard.

(b) According to Article 261 bis of the Criminal Code, an offence is committed by any person who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or other means, or any person who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity.

Article 261 bis of the Criminal Code enshrines in domestic law the undertakings entered into by Switzerland when it signed the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (‘the CERD’), which came into force on 29 December 1994 (RS [Recueil systématique – Compendium of Federal Law] 0.104; Favre, Pellet, Stoudmann, Code pénal annoté, 2nd edition, Lausanne 2004, no. 1.1. ad Article 261 bis of the Criminal Code). The fact that Article 261 bis of the Criminal Code is based on a convention reflects the current trend to incorporate the provisions of international treaties into domestic law. However, what sets the anti-racist legislation apart is the fact that the national parliament decided that, in the case of genocide and other crimes against humanity, the law should go beyond the minimum standards set by the CERD (Chaix and Bertossa, op. cit., esp. p. 179).

(c) The notion of genocide is now defined by Article 264 of the Criminal Code. Courts responsible for applying Article 261 bis of the Criminal Code must be guided by this definition, derived from the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948. However, their task is to punish not the genocide in question but persons who deny its existence (Chaix et Bertossa, op. cit., esp. p. 183).

In connection with the scope of the notion of genocide, several writers note that the Federal Council’s memorandum only refers to the genocide of the Jews during the Second World War (FF 1992 III 308; Chaix and Bertossa, op. cit., esp. p. 183). However, Parliament has clearly incorporated a broader concept of revisionism into Article 261 bis of the Criminal Code that is not confined to the denial of crimes against humanity committed by the National-Socialist regime. This extended scope was unequivocally confirmed by the National Council, which, on second reading, corrected the French text by replacing the words ‘the genocide’ with ‘a genocide’ (Guyaz, L’incrimination de la discrimination raciale, thesis 1996, p. 300). Parliament justified this change by arguing that the legislation must apply to all cases of genocide that might unfortunately take place, and citing as an example the massacre of the Armenians (BO/CN 1993, p. 1076).

Historically, therefore, Parliament did not intend to restrict the application of Article 261 bis of the Criminal Code to the genocide of the Jews. By accepting the change to the wording, it indicated that it should apply to all genocides, in particular that of the Armenians.

In the case of the Armenian genocide, therefore, the courts are not required to rely on the work of historians to acknowledge its existence, since this particular case is specifically covered by the legislation and the intentions of those who enacted it, on the same basis as the genocide of the Jews in the Second World War. It must therefore be recognised that the Armenian genocide is deemed to be an established fact.

(d) In this case, the lower court stated explicitly that it did not intend to act as a historian, even though it did wander into this territory by attempting to assess the general opinion of institutions in Switzerland and abroad on this subject. It was unnecessary for it to do so since all that counts is the will of Parliament, which stated clearly in the preparatory debates that the wording of Article 261 bis of the Criminal Code covered the Armenian genocide. It is therefore wrong for the appellant to state, with reference to the Federal Council’s memorandum (FF 1992 III 308), that it is not established that the wording of Article 261 bis of the Criminal Code was such as to include the Armenian genocide. Nor is the case-law of the Federal Court decisive since every case so far where the subject has arisen has concerned the Jews of the Second World War and associated revisionism.

In the final analysis, since the Armenian genocide is acknowledged by Parliament itself to be an established fact, there is nothing exceptional about this case that would call for additional investigative measures and a historical approach to assess whether a genocide had taken place.

The ground of appeal based on the meaning and scope of the notion of genocide must be dismissed as ill-founded.

(a) To be an offence, the conduct criminalised in Article 261 bis of the Criminal Code must be intentional and motivated by hatred or racial discrimination; it is sufficient to have behaved recklessly (ATF 124 IV 125 point 2b, 123 IV 210 point 4c). According to Corboz, the discrimination requirement has to be interpreted strictly: the act must mainly reflect the state of mind of the perpetrator, who hates or despises the members of another race, ethnic group or religion. Article 261 bis must not be applied in the case of objective academic research or serious political debates that are devoid of animosity or racial prejudice (Corboz, Les infractions de droit suisse, Volume II, Bern 2002, note 37 on Article 261 bis of the Criminal Code).

(b) In this case, the appellant tries to explain the positions he holds in terms of the debate between historians, which necessitates respect for freedom of expression. He also maintains that he has simply denied that the events in question constituted genocide, without ever disputing the existence of massacres and deportations of Armenians, which he justifies by the laws of war.

This argument relates to the subjective aspect of the offence, but is vitiated by the fact that he coupled the term genocide with that of ‘international lie’, which the lower court described as particularly virulent. It should be noted in this regard that the statements in question were made at public meetings with strong nationalist overtones that bore little relation to serious historical debates devoid of racist prejudices. On these occasions, the accused, who describes himself as a writer and historian, quite simply dismissed his opponents’ arguments and announced that the Armenian genocide had never existed. The appellant, who is aware of the widespread acceptance of this proposition, was merely seeking to make a political rather than a historical point, as he claimed, and it was not by chance that these statements were made at meetings to commemorate the 1923 Treaty of Lausanne. This Court must therefore agree with the lower court’s finding that the motives of the accused were racist and nationalistic.

In the final analysis, the objection is not just to his rejection of the use of the term genocide but also to the way it was expressed and the associated texts cited, all of which mean that Dogu Perinçek explicitly and intentionally denied a historical fact regarded as established, namely the Armenian genocide, and did so on several occasions without displaying any inclination to alter his point of view.

This ground must be dismissed as ill-founded.

(a) The appellant asks to be exempted from any obligations to pay compensation for non-pecuniary damage.

(b) Under Article 49 § 1 of the Code of Obligations, any person whose personality rights have been illegally violated can claim financial compensation for non-pecuniary damage, if this is justified by the severity of the violation and the perpetrator has not provided an alternative form of satisfaction. Pursuant to this Article, the violation must be in excess of what a person should normally bear, from the standpoint of the length or the intensity of the suffering caused (Bücher, Personnes physiques et protection de la personnalité, 4th edition, Basel, Geneva, Munich 1999, no. 603, p. 141; Tercier. op. cit., nos. 2047 et seq., pp. 270 et seq.; Deschenaux and Tercier, op. cit., no. 24 et seq., p. 93). The amount of the compensation depends mainly on the severity of the violation – or, more specifically, on the severity of the physical or psychological suffering caused by the violation – and the likelihood that the payment of a sum of money will significantly reduce the resulting non-pecuniary damage (ATF 125 III 269, point 2a: ATF 118 II 410, point 2a).

The courts have discretion to determine the level of compensation. By its very nature, compensation for non-pecuniary injury, to which a simple monetary value can only be ascribed with great difficulty, cannot be determined by reference to mathematical criteria, to ensure that the assessed amount does not exceed a certain level; however, the compensation awarded must be equitable. The relevant court will therefore ensure that the amount reflects the severity of the damage suffered and that the sum awarded does not appear derisory to the victim (ATF 125 III 269, previously cited; ATF [118] II 410, previously cited).

The level of compensation for non-pecuniary damage is a matter for federal law, and one which this Court is therefore free to examine (Article 415 §§ 1 and 3 and Article 447 § 1 of the Code of Criminal Procedure). Since the outcome is to a large extent dependent on an assessment of the circumstances, the appeal court must only intervene with restraint, in particular when the lower court has misused its discretion by basing its decision on considerations that are unrelated to the applicable provision, by failing to take account of relevant information or by setting a level of compensation that is inequitable because it is manifestly too low or too high (ATF 126 III 269, cited above; ATF 118 II [410], cited above). However, since this is a question of equity – and not one of exercise of discretion in the strict sense of the term, which would limit its power of review to abuse or excess of discretion – the appeal court is free to decide whether the sum awarded takes sufficient account of the severity of the violation or whether it is disproportionate to the intensity of the non-pecuniary damage suffered by the victim (ATF 125 III 269, cited above; ATF 123 III 10, point 4c/aa; ATF 118 II [410], cited above).

(c) In this case, the appellant was found guilty of racial discrimination, for which he therefore incurs civil liability.

The lower court considered that it was difficult to award an association compensation of the order of CHF 10,000 for non-pecuniary damage because, by definition, legal entities are devoid of feelings. It therefore reduced the complainant’s claim and awarded it a symbolic sum of CHF 1,000 in compensation. This assessment is not arbitrary and the sum awarded is appropriate.

This ground, and the entire ordinary appeal, must be dismissed as ill-founded.

(a) The appellant seeks to be exempted from any obligations to pay criminal costs.

(b) The complainant is a civil party as a matter of law (Article 94 of the Code of Criminal Procedure). The costs which civil parties may claim under Article 97 of the Code of Criminal Procedure are awarded according to the principle laid down in Article 163 § 2 of the [Code], which provides that the rules relating to expenses are applicable by analogy.

The right to costs is enshrined in the cantonal procedural legislation. According to the case-law, civil parties are, in principle, only eligible for costs if the accused has received a sentence or been ordered to pay damages (JT 1961 III 9). The lower court has discretion to set the level of the costs payable to the civil party, and the Court of Cassation only intervenes in this decision in the event of a manifestly incorrect application of the law or a misuse of discretion, particularly regarding the level of the costs awarded (JT 1965 III 81).

(c) In this particular case, an examination of the case file shows that all the necessary conditions were met for the award of costs for criminal expenses incurred. The lower court noted that the case was sufficiently complex to justify the presence of a lawyer and awarded the Switzerland-Armenia Association CHF 10,000 towards its criminal costs. In view of the amount of work performed by the lawyer, the court did not exceed its discretion.

This ground, and the entire appeal on points of law, must be dismissed as ill-founded.

II. Appeal on grounds of nullity

Alleging a violation of Article 411, letters (f), (g), (h) and (i) of the Code of Criminal Procedure, the appellant submits that the judgment has an inadequate factual basis because the court failed to take account of the documents produced and the evidence of certain historians. He also maintains that there were doubts about the facts of the case, or indeed an arbitrary assessment of the evidence in connection with the citing of certain historical works on the massacre of the Armenians. Finally, he bases his appeal on grounds of nullity on the fact that the court dismissed an interlocutory application for additional investigative measures to obtain documents and information aimed at clarifying the Armenian situation in 1915 and determining whether or not the term genocide could be used.

These grounds must be dismissed since they are solely concerned with questions of fact whose resolution would not be likely to influence the judgment (Bersier, op. cit., p. 78), It is not necessary for the courts to act as a historian on the question of the Armenian genocide, since the parliamentary debates show that its existence is considered to be established (see point 2 (c) above).

The appeal on grounds of nullity must be dismissed as ill-founded.

In the final analysis, the appeal is ill-founded, both on grounds of nullity and as an ordinary appeal. It must therefore be dismissed in its entirety.

Given the outcome of the appeal, the appellant shall pay the costs at second instance.”

The applicant appealed against that judgment to the Swiss Federal Court, seeking to have the judgment set aside so that he would be cleared of all criminal charges and civil liability. In substance, he argued that, for the purposes of applying Article 261 bis § 4 of the Swiss Criminal Code and examining the alleged violation of his fundamental rights, the cantonal courts had not carried out a sufficient examination of whether the factual circumstances had been such as to warrant classifying the events of 1915 and the following years as genocide.

In a judgment of 12 December 2007 (6B_398/2007), the Swiss Federal Court dismissed the appeal in the following terms:

“3.1. Article 261 bis § 4 of the Criminal Code punishes conduct on the part of anyone who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or any other means, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity. An initial literal and grammatical approach shows that the wording of the law (through the use of the indefinite article ‘a genocide’ [‘un génocide’]) makes no explicit reference to any specific historical event. The law therefore does not preclude punishment of denial of genocides other than that perpetrated by the Nazi regime; nor does it explicitly classify denial of the Armenian genocide as an act of racial discrimination under criminal law.

3.2. Article 261 bis § 4 of the Criminal Code was enacted when Switzerland acceded to the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (RS [Recueil systématique – Compendium of Federal Law] 0.104). The wording initially proposed in the Bill tabled by the Federal Council did not refer specifically to genocide denial (see FF 1992 III 326). The offence of revisionism, or Holocaust denial, was intended to be included within the constituent element of dishonouring the memory of a deceased person, appearing in the fourth paragraph of the draft Article 261 bis of the Criminal Code (Memorandum by the Federal Council of 2 March 1992 concerning Switzerland’s accession to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the corresponding revision of criminal law; FF 1992 III 265 et seq., specifically 308 et seq.). The memorandum does not contain any specific reference to the events of 1915.

During the parliamentary debates, the National Council’s Legal Affairs Committee proposed inserting the following wording in Article 261 bis § 4 of the Criminal Code: ‘... or who on the same grounds grossly trivialises or seeks to excuse genocide or other crimes against humanity’ ... The Committee’s French-language rapporteur, National Councillor Comby, explained that there was a discrepancy between the German and French versions, pointing out that the wording was obviously referring to any genocide and not only the Holocaust (BO/CN 1992 II 2675 et seq.). The National Council nevertheless adopted the Committee’s proposal as it stood (BO/CN 1992 II 2676). Before the Council of States, the proposal by the latter’s Legal Affairs Committee to maintain the wording of Article 261 bis § 4 of the Criminal Code approved by the National Council was set against a proposal by Mr Küchler, which did not, however, call into question the phrase ‘or who on the same grounds denies, grossly trivialises or seeks to justify genocide or other crimes against humanity’ (BO/CE [Official Gazette/Council of States] 1993 96; as to the scope of this proposal, see ATF [Judgments of the Swiss Federal Court] 123 IV 202, point 3c, p. 208, and Poncet, ibid.). That proposal was adopted without any more detailed reference being made to denial of the Armenian genocide during the debate. During the elimination of divergences, the National Council’s Legal Affairs Committee proposed, through Mr Comby, that the amendments inserted by the Council of States be adopted, with the exception of the fourth paragraph, where the Committee proposed the wording ‘a genocide’, by way of reference to any that might occur. The French-language rapporteur observed that some people had mentioned massacres of Kurds or other populations, for example Armenians, and that all these genocides should be covered (BO/CN 1993 I 1075 et seq.). Further brief comments were made in relation to the definition of genocide and how a Turkish citizen might refer to the Armenian tragedy, and it was also observed that the Committee did not intend the provision to apply to one particular genocide alone but to all genocides, for example in Bosnia and Herzegovina (BO/CN 1993 I 1077; statement by Ms Grendelmeier). The National Council ultimately adopted the following wording of paragraph 4: ‘... or any other means, violates the human dignity of a person or group of persons on the grounds of their race, ethnic origin or religion, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide...’ (BO/CN 1993 I 1080). In the subsequent parliamentary proceedings, the Council of States maintained its position, adopting the wording ‘a genocide’ (‘un génocide’) as a simple editorial amendment in the French version, and the National Council eventually endorsed the Council of States’ decision, without any further reference being made to denial of the Armenian genocide (BO/CN 1993 I 1300, 1451; BO/CE 1993 452, 579).

It is therefore clear from the above-mentioned parliamentary proceedings that Article 261 bis § 4 of the Criminal Code does not apply exclusively to denial of Nazi crimes but also to other genocides.

3.4. However, these parliamentary proceedings cannot be interpreted as meaning that the criminal-law provision in question applies to certain specific genocides which the legislature had in mind at the time of enacting it, as is suggested by the judgment appealed against.

3.4.1. The desire to combat negationist and revisionist opinions in relation to the Holocaust was, admittedly, a central factor in the drafting of Article 261 bis § 4 of the Criminal Code. In its case-law, however, the Federal Court has held that Holocaust denial objectively constitutes the factual element of the offence provided for in Article 261 bis § 4 of the Criminal Code since it concerns a historical fact that is generally acknowledged as established (ATF 129 IV 95, point 3.4.4, pp. 104 et seq.), although the judgment in question makes no reference to the historical intention of the legislature. Similarly, many authors have viewed the Holocaust as a matter of common knowledge for the criminal courts (Vest, Delikte gegen den öffentlichen Frieden, note 93, p. 157), as an indisputable historical fact (Rom, op. cit., p. 140), or as a classification (‘genocide’) that is beyond doubt (Niggli, Discrimination raciale, note 972, p. 259, who simply notes that this genocide was what prompted the introduction of the provision in question; to similar effect, see Guyaz, op. cit., p. 305). Only a few voices have referred to the intention of the legislature to recognise it as a historical fact (see, for example, Ulrich Weder, Schweizerisches Strafgesetzbuch, Kommentar (ed. Andreas Donatsch), Zürich 2006, Article 261 bis § 4, p. 327; Chaix/Bertossa, op. cit., p. 184).

3.4.2. The process of ascertaining what genocides the legislature had in mind when formulating the provision is, moreover, thwarted by a literal interpretation (see point 3.1 above), which clearly shows the legislature’s intention to favour an open-ended wording of the law in this regard, as opposed to the technique of ‘memorial’ laws such as those passed in France (Law no. 90-615 of 13 July 1990, known as the ‘Gayssot Act’; Law no. 2001-434 of 21 May 2001 on recognition of trafficking and slavery as a crime against humanity, known as the ‘Taubira Act’; Law no. 2001-70 of 29 January 2001 on recognition of the 1915 Armenian genocide). The fact that Holocaust denial constitutes a criminal offence under Article 261 bis § 4 of the Criminal Code therefore stems less from the legislature’s specific intention to outlaw negationism and revisionism when it formulated this rule of criminal law than from the observation that there is a very general consensus on this matter, to which the legislature undoubtedly had regard. Nor is there, accordingly, any reason to determine whether the legislature was guided by any such intention regarding the Armenian genocide (contrast Niggli, Rassendiskriminierung, 2nd ed., Zürich 2007, note 1445 et seq., pp. 447 et seq.). Indeed, it should be noted in this connection that while certain aspects of the wording prompted fierce discussion among the members of Parliament, the categorisation of the events of 1915 did not give rise to any debate in this context, and was ultimately mentioned by only two speakers in justifying the adoption of a French version of Article 261 bis § 4 of the Criminal Code that did not allow an excessively restrictive interpretation of the text, which did not follow from the German version.

3.4.3. Legal writers and the courts have, moreover, inferred from the well-known, undeniable or indisputable character of the Holocaust that proof of it is no longer required in criminal proceedings (Vest, ibid.; Schleiminger, op. cit., Article 261 bis § 4 of the Criminal Code, note 60). Hence there is no need for the courts to have recourse to the work of historians on this matter (Chaix/Bertossa, ibid.; unreported judgment 6S.698/2001, point 2.1). As a further consequence, the basis thus determined for the criminalisation of Holocaust denial dictates the method which the courts must adopt in considering the denial of other genocides. The first question arising is therefore whether there is a comparable consensus regarding the events denied by the appellant.

The question thus raised relates to findings of fact. It is less directly concerned with the assessment of whether the massacres and deportations attributed to the Ottoman Empire are to be characterised as genocide than with the general assessment of this characterisation, both among the public and within the community of historians. This is how we are to understand the approach adopted by the Police Court, which emphasised that its task was not to write history but to determine whether the genocide in question was ‘known and acknowledged’ or indeed ‘proven’ (see the judgment, point II, p. 14) before forming its opinion on this latter factual issue (judgment, point II, p. 17), which forms an integral part of the Cantonal Court’s judgment (Cantonal Court judgment, point B, p. 2).

4.1. A factual finding of this nature is binding on the Federal Court ...

4.2. As regards the decisive factual issue, the Police Court not only based its opinion on the existence of political declarations of recognition, but it also pointed out that the opinion of the authorities issuing such declarations had been formed on the basis of expert opinion (for example, a panel of approximately one hundred historians in the case of the French National Assembly when it passed the Law of 29 January 2001) or reports described as cogently argued and substantiated (European Parliament). Thus, as well as relying on the existence of political recognition, this line of argument notes the existence in practice of a broad consensus within the community, which is reflected in the political declarations and is itself based on a wide academic consensus as to the classification of the events of 1915 as genocide. It may also be noted, in the same vein, that during the debate leading to the official recognition of the Armenian genocide by the National Council, reference was made to the international research published under the title Der Völkermord an den Armeniern und die Shoah (BO/CN 2003 2017; statement by Mr Lang). Lastly, the Armenian genocide is portrayed as one of the ‘classic’ examples in general literature on international criminal law, or on genocide research (see Marcel Alexander Niggli, Rassendiskriminierung, note 1418 et seq., p. 440, and the numerous references cited therein; see also note 1441, p. 446, and references).

4.3. To the extent that the appellant’s submissions seek to deny the existence of a genocide or the legal characterisation of the events of 1915 as genocide – in particular by pointing to the lack of a judgment from an international court or specialist commission, or the lack of irrefutable evidence proving that the facts correspond to the objective and subjective requirements laid down in Article 264 of the Criminal Code or in the 1948 UN Convention, and by arguing that to date, there have been only three internationally recognised genocides – they are irrelevant to the determination of the case, seeing that it is necessary in the first place to establish whether there is enough of a general consensus, especially among historians, to exclude the underlying historical debate as to the classification of the events of 1915 as genocide from the criminal proceedings concerning the application of Article 261 bis § 4 of the Criminal Code. The same applies in so far as the appellant is accusing the Cantonal Court of having acted arbitrarily by not examining the pleas of nullity raised in the cantonal appeal in relation to the same facts and the investigative measures he had sought. It is therefore unnecessary to examine his submissions except to the extent that they relate specifically to the establishment of such a consensus.

4.4. The appellant observes that he has sought further investigative measures to ascertain the current state of research and the current position of historians worldwide on the Armenian question. His submissions also appear at times to suggest that he believes there to be no unanimity or consensus among either States or historians as to the classification of the events of 1915 as genocide. However, his arguments are limited to setting his own opinion against that of the cantonal authority. In particular, he does not cite any specific evidence showing that the consensus found by the Police Court does not exist, let alone that that court’s finding is arbitrary.

Admittedly, the appellant does mention that a number of States have refused to recognise the existence of an Armenian genocide. It should be pointed out in this connection, however, that even the UN’s Resolution 61/L.53 condemning Holocaust denial, adopted in January 2007, received only 103 votes from among the 192 member States. The mere observation that certain States refuse to declare in the international arena that they condemn Holocaust denial is manifestly insufficient to cast doubt on the existence of a very general consensus that the acts in question amount to genocide. Consensus does not mean unanimity. The choice of certain States to refrain from publicly condemning the existence of a genocide or from voting for a resolution condemning the denial of a genocide may be dictated by political considerations that are not directly linked to those States’ actual evaluation of the way in which historical events should be categorised, and in particular cannot cast doubt on the existence of a consensus on this matter, especially within the academic community.

4.5. The appellant also argues that it would be contradictory for Switzerland to acknowledge the existence of the Armenian genocide while supporting the establishment of a panel of historians in the context of its relations with Turkey. This, in his submission, shows that the existence of genocide is not established.

However, it cannot be inferred either from the Federal Council’s repeated refusal to acknowledge the existence of an Armenian genocide by means of an official declaration or from the approach chosen – namely recommending to the Turkish authorities that an international panel of experts be set up – that the conclusion that there is a general consensus as to the characterisation of the events in question as genocide is arbitrary. In accordance with the clearly expressed wish of the Federal Council, its approach is guided by the concern to prompt Turkey to engage in collective remembrance of its past (BO/CN 2001 168: response by Federal Councillor Deiss to the non-binding motion by Mr Zisyadis; BO/CN 2003 2021 et seq.: response by Federal Councillor Calmy-Rey to the non-binding motion by Mr Vaudroz on recognition of the 1915 Armenian genocide). This attitude of openness to dialogue cannot be construed as denial of the existence of a genocide and there is nothing to suggest that the support expressed by the Federal Council in 2001 for the setting up of an international commission of inquiry did not stem from the same approach. It cannot be inferred in general that there is sufficient doubt within the community, particularly among academics, as to the classification of the events of 1915 as genocide to render the finding of such a consensus arbitrary.

4.6. That being so, the appellant has not shown how the Police Court acted arbitrarily in finding that there was a general consensus, particularly among academics, as to the classification of the events of 1915 as genocide. It follows that the cantonal authorities were correct in refusing to allow the appellant’s attempt to open a historical and legal debate on this issue.

As to the subjective element, the offence provided for in Article 261 bis §§ 1 and 4 of the Criminal Code requires intentional conduct. In judgments ATF 123 IV 202, point 4c, p. 210, and 124 IV 121, point 2b, p. 125, the Federal Court held that such intentional conduct had to be guided by motives of racial discrimination. This question, which has prompted debate among legal writers, was subsequently left open in judgments ATF 126 IV 20, point 1d, in particular p. 26, and 127 IV 203, point 3, p. 206. It can likewise be left open in the instant case, as will be shown below.

5.1. With regard to intent, the Criminal Court found that [the applicant], a doctor of laws, politician and self-styled writer and historian, had acted in full knowledge of the consequences, stating that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place. These findings as to the appellant’s internal volition to deny a genocide relate to matters of fact (see ATF 110 IV 22, point 2, 77, point 1c, 109 IV 47, point 1, 104 IV 36, point 1 and citations), with the result that the Federal Court is bound by them (section 105(1) of the Federal Court Act). Moreover, the appellant has not submitted any complaints on that issue. He has not sought to demonstrate that these findings of fact are arbitrary or the result of a violation of his rights under the Constitution or the Convention, so there is no need to consider this question (section 106(2) of the Federal Court Act). It is unclear in any event how the cantonal authorities, which inferred the appellant’s intention from external considerations (cf. ATF 130 IV 58, point 8.4, p. 62), could have disregarded the very concept of intention under federal law in relation to this issue.

5.2. As to the appellant’s motives, the Criminal Court found that they appeared to be of a racist and nationalistic nature and did not contribute to the historical debate, noting in particular that he had described the Armenians as aggressors of the Turkish people and that he claimed to be a follower of [Talaat] Pasha, who together with his two brothers was historically the initiator, the instigator and the driving force of the Armenian genocide (Criminal Court judgment, point II, pp. 17 et seq.).

It has not been disputed in the instant case that the Armenian community constitutes a people, or at the very least an ethnic group (as to this concept, see Niggli, Rassendiskriminierung, 2nd ed., note 653, p. 208), which identifies itself in particular through its history, marked by the events of 1915. It follows that denial of the Armenian genocide – or the representation of the Armenian people as the aggressor, as put forward by the appellant – in itself constitutes a threat to the identity of the members of this community (Schleiminger, op. cit., Article 261 bis of the Criminal Code, note 65 and reference to Niggli). The Criminal Court, which found that there had been motives linked to racism, likewise ruled out that the approach pursued by the appellant pertained to historical debate. These findings of fact, about which the appellant raised no complaint (section 106(2) of the Federal Court Act), are binding on the Federal Court (section 105(1) of the Federal Court Act). They provide sufficient evidence of the existence of motives which, above and beyond nationalism, can only be viewed as racial, or ethnic, discrimination. It is consequently unnecessary in the present case to settle the debate among legal writers mentioned in point 6 above. In any event, the appellant has not raised any complaints concerning the application of federal law in relation to this matter.

The appellant further relies on the freedom of expression enshrined in Article 10 of the ECHR, in connection with the cantonal authorities’ interpretation of Article 261 bis § 4 of the Criminal Code.

However, it appears from the records of the questioning of the appellant by the Winterthur/Unterland public prosecutor’s office (23 July 2005) that in making public statements, particularly in Glattbrugg, the appellant was intending to ‘help the Swiss people and the National Council to rectify the error’ (that is to say, recognition of the Armenian genocide). Furthermore, he was aware that genocide denial was a criminal offence and stated that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place (Criminal Court judgment, point II, p. 17). It can be inferred from these aspects that the appellant was not unaware that by describing the Armenian genocide as an ‘international lie’ and by explicitly denying that the events of 1915 amounted to genocide, he was liable to face a criminal penalty in Switzerland. The appellant cannot therefore draw any favourable inferences from the lack of foreseeability of the law he cites. These considerations, moreover, support the conclusion that the appellant is in essence seeking, by means of provocation, to have his assertions confirmed by the Swiss judicial authorities, to the detriment of the members of the Armenian community, for whom this question plays a central role in their identity. The applicant’s conviction is thus intended to protect the human dignity of members of the Armenian community, who identify themselves through the memory of the 1915 genocide. Criminalisation of genocide denial is, lastly, a means of preventing genocides for the purposes of Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature in New York on 9 December 1948 and approved by the Federal Assembly on 9 March 2000 (RS [Recueil systématique – Compendium of Federal Law] 0.311.11).

It should be noted, moreover, that the appellant has not denied the existence either of massacres or of deportations (see point A above), which cannot be categorised, even if one exercises restraint, as anything other than crimes against humanity (Niggli, Discrimination raciale, note 976, p. 262). Justification of such crimes, even with reference to the law of war or alleged security considerations, will in itself fall foul of Article 261 bis § 4 of the Criminal Code, so that even from this perspective, regardless of whether these same acts are characterised as genocide, the appellant’s conviction on the basis of Article 261 bis § 4 of the Criminal Code does not appear arbitrary in its outcome, any more than it breaches federal law.”

In 2008 the applicant was arrested and charged in the context of the so-called Ergenekon proceedings (of which short descriptions may be found in Nedim Şener v. Turkey, no. 38270/11, § 6, 8 July 2014; Şık v. Turkey, no. 53413/11, § 10, 8 July 2014; Tekin v. Turkey (dec.), no. 3501/09, §§ 3-16, 18 November 2014; and Karadağ v. Turkey (dec.), no. 36588/09, §§ 3-16, 18 November 2014). On 5 August 2013 the Istanbul Assize Court convicted him, alongside many others, and sentenced him to life imprisonment. That judgment was appealed against, and the proceedings are now pending before the Turkish Court of Cassation (see Tekin, § 17, and Karadağ, § 17, both cited above, as well as Yıldırım v. Turkey (dec.), no. 50693/10, § 14, 17 March 2015). He was released from pre-trial detention in March 2014.

The third party the Turkish Human Rights Association, the Truth Justice Memory Centre and the International Institute for Genocide and Human Rights Studies referred to the web-versions of two articles in Turkish newspapers. The first, published in the daily Vatan on 26 July 2007, said that after the assassination of Hrant Dink the applicant had sent an open letter to the Armenian Patriarch of Istanbul. In that letter he had denounced the assassination as a provocation by the United States of America against Turkey, and had invited the Patriarch openly to say that it had been instigated by the United States of America and thus, as a leader of the Armenians in Turkey, set an example to those defending the unity of the Turkish nation. The second article, published in the daily Milliyet on 19 May 2007, did not mention the applicant. It described anonymous threats sent to Armenian schools in Istanbul in connection with the Armenian position in relation to the events of 1915 and the following years. It added that in reaction to those threats, the provincial director of education had sought to reassure the Armenians and asked the authorities to take precautionary measures.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants, Mr Georgi Vasilev Tonkev and Ms Viktoria Vasileva Tonkeva, are Bulgarian nationals. Mr Georgi Vasilev Tonkev was born in 1990 and lives in Varna, while Ms Viktoria Vasileva Tonkeva was born in 1996 and lives in Pazardzhik. The applicants were represented before the Court by Mr L. Takov and Mr H. Donchev, lawyers practising in Sofia.

The applicants are the children of Mr Vasil Tonkev, who was killed on 1 May 2011 during a police operation aimed at apprehending him.

About twenty luxury cars were stolen in the Plovdiv region in April 2011. Mr Tonkev was one of the suspected perpetrators of the thefts.

On 30 April 2011 the head of the Directorate of the Ministry of the Interior in Plovdiv ordered an operation aimed at apprehending the perpetrators. He selected twenty police officers to participate in the operation, scheduled for that evening. The officers were briefed in advance; they were advised, in particular, that the individuals they were seeking to apprehend were dangerous and armed and would be unlikely to obey police orders.

At about 8 p.m. on 30 April 2011 the officers, in two police cars and a minivan, left Plovdiv for the city of Veliko Tarnovo, where, according to operational intelligence data, a theft was planned for that evening. They arrived in the city at around 11 p.m. At about 1 a.m. on 1 May 2011 they were informed that a car, a BMW X5, had been stolen and was heading towards Plovdiv. It transpired subsequently that the car had been stolen and was being driven by Mr Tonkev. Once in Plovdiv, he stole another car together with an accomplice.

The police officers returned to Plovdiv, where they were informed that the two stolen cars were taking the motorway to Sofia. Four police cars and a minivan followed them. At about 5 a.m. the two stolen cars left the motorway and entered nearby fields. The police officers set up four roadblocks, obstructing roads in the area.

At about 7 a.m. the two cars left the fields and headed towards the first roadblock. Once the drivers had seen it, they made a U-turn. One of the cars, driven by Mr Tonkev’s accomplice, took a dirt road back towards the fields, followed by several officers. The car was subsequently found, but the driver managed to escape. Mr Tonkev remained on the road in the other stolen car, driving at high speed towards the second roadblock. The officers who were there tried to stop him, placing the police car in the middle of the road. However, Mr Tonkev did not stop but managed to drive round the car, hitting it. Then he continued towards the third roadblock.

Having been told on the radio by their colleagues that Mr Tonkev had driven past the second roadblock, had hit the police car and was driving towards them, the officers at the third roadblock made preparations to stop him. They parked their police minivan in the middle of the road and stood around it.

Mr Tonkev approached at high speed. With their hands raised, the officers signalled to him to stop. He did not do that, but instead directed the car at the officer who was standing to the left of the minivan and who had to jump hastily into the ditch to escape. The other officers from the group stated later that they had thought the car had knocked him down, as they had not been able to see him. Mr Tonkev then drove towards the other officers, who were standing in a group to the right of the minivan. The first two of them, after once again making gestures indicating that he should stop, jumped out of the way. This left the third officer, Mr K.A., alone in front of the speeding car. Mr K.A. was armed with an AK-47 assault rifle, set to semi-automatic fire. He fired two warning shots aimed to be into the air. However, at that very moment he had to jump hastily out of the way to avoid being hit by the car and fell to the ground. This changed the direction of the shots, which instead hit the front right-hand door of the car driven by Mr Tonkev. Already on the ground, Mr K.A. fired one more shot, which hit the car’s right rear tyre. One of the other officers attempted to deploy a spike strip to stop the car, but did not succeed. Mr Tonkev continued driving and headed towards the fourth roadblock.

Approaching the roadblock at high speed, he once again directed the car at the police officers trying to stop him and they had to jump to one side to escape. They managed to deploy a spike strip, but despite passing through it, Mr Tonkev continued driving and soon after that turned off onto a small dirt road. The police officers started searching the area. Sometime later they found the abandoned car. They heard Mr Tonkev cry for help and found him close by, wounded. They called an ambulance, but Mr Tonkev died before its arrival.

Criminal proceedings concerning a possible offence under Article 119 of the Criminal Code (see paragraph 25 below) were instigated on 1 May 2011. The investigation was conducted against an “unknown perpetrator” until its conclusion.

On 1 May 2011 the scene of the incident was visited by an investigator from the investigation service in Pazardzhik. He also inspected the car which had been driven by Mr Tonkev. Two bullet holes were found in its front right-hand door, but only one of the bullets had pierced the door and penetrated the interior. Stains of dry blood were found on the left-hand front seat. A bag of tools including pliers and screwdrivers was found on the back seat.

A post mortem of Mr Tonkev’s body was carried out on 3 May 2011. A gunshot wound measuring 2.5 to 3 cm was found in the right lower part of the thorax. The bullet, which had penetrated horizontally, had caused a laceration of the liver. This had resulted in a severe intra-abdominal haemorrhage, which had caused the death. The expert concluded that the lethal shot had not been fired at close range.

A ballistic expert report was drawn up on 11 May 2011. It established that the lethal shot had been fired from the AK-47 rifle used by Mr K.A.

Many of the officers who took part in the operation on 30 April and 1 May 2011, including all of those who had been stationed at the third roadblock, were interviewed on different dates. Mr K.A. was interviewed on 4 May 2011. He said that he had fired into the air and immediately after that had jumped back to escape the speeding car. He also stated that his aim had been to preserve the life and physical integrity of his colleagues and of Mr Tonkev.

A combined medico-ballistic expert report was drawn up on 26 June 2011. It established that the lethal shot which had killed Mr Tonkev had been fired from between 0.8 and 3.8 metres. Whoever fired the shot had been positioned to the right and slightly in front of the victim. The shot had been fired while he was falling, staggering or jumping backwards and the gun had been in a horizontal position. The victim had been sitting in the driver’s seat, leaning against the backrest in the normal way.

Another medico-ballistic expert report, drawn up on 6 April 2012, concluded that, while firing the first two shots, Mr K.A. had been moving to the right, attempting to escape the approaching car. It was possible that at the time the second of these shots was fired he was no longer supporting the rifle with his left hand, which was thus in a position close to horizontal. The experts were of the view that it was impossible for shots fired into the air to have the trajectory observed in the case.

On several occasions in the course of the investigation the applicants’ representatives requested the replacement of the investigator and the prosecutor in charge of the case, arguing that they were not carrying out a thorough and independent investigation. In particular, the applicant’s representatives considered that the investigator and the prosecutor, by commencing an investigation concerning a possible offence under Article 119 of the Criminal Code, had predetermined the course of the criminal proceedings and had allegedly unjustifiably sought to discontinue the proceedings (see below). On all occasions the requests for replacement of the investigator and the prosecutor were refused by their superiors, it being found that the investigation was being carried out in a thorough and vigorous manner and that the allegations made by the applicants could not justify the conclusion that the investigator and the prosecutor were not independent.

On 30 December 2011 the prosecutor in charge of the case decided to discontinue the criminal proceedings, finding, on the basis of Article 12 § 1 of the Criminal Code (see paragraph 24 below), that no offence had been committed in connection with Mr Tonkev’s death. The prosecutor considered that Mr Tonkev’s actions, namely his directing of the powerful car he had been driving at high speed towards the police officers, represented an unlawful direct attack that placed their health and lives at risk. It therefore justified self-defence on their part, in particular the firing of the two shots by Mr K.A.

Upon an appeal by the first applicant, on 24 January 2012 the Pazardzhik Regional Court quashed the prosecutor’s decision, considering that she had not examined in a thorough manner the particular circumstances in which Mr K.A. had fired the lethal shot, such as the position of his body and the possible trajectory of the bullet.

The prosecutor collected further evidence, in particular the expert report mentioned in paragraph 17 above, and on 27 June 2012 decided to discontinue the criminal proceedings, relying once again on the provision contained in Article 12 § 1 of the Criminal Code. She considered that Mr Tonkev had launched a “direct and unlawful attack” on the police officers at the second, third and fourth roadblocks, using the car he was driving “as a weapon” capable of injuring or killing any one of them. Thus, Mr K.A. had “no longer aimed at apprehending” Mr Tonkev, but had acted in self-defence, in order to protect his own life, and also the lives of his colleagues. Given Mr Tonkev’s aggressiveness, the action taken in selfdefence had not been disproportionate. Mr K.A. had used his firearm after all other attempts to halt the attack had proved futile.

Upon an appeal by the first applicant, on 3 August 2012 the Pazardzhik Regional Court upheld the prosecutor’s decision, confirming her conclusion that Mr K.A. had acted in self-defence, and finding that the investigation of Mr Tonkev’s death had been objective and thorough. The court dismissed the first applicant’s argument that it had been necessary to examine as witnesses all officers who had participated in the operation of 30 April-1 May 2011, pointing out that all the eye-witnesses to the relevant events had been interviewed. The domestic court dismissed a further argument put forward by the first applicant that Mr Tonkev had not been armed, that his actions had been predictable and that he had not posed a danger to the officers. The court pointed out that Mr Tonkev had used the car driven by him “as a weapon” and that he had aimed at injuring or even killing the police officers trying to stop him. Thus, it did not appear that the use of lethal force was unjustified. Lastly, the domestic court dismissed the argument that the police officers’ actions had been “inadequate” and that they could have halted the car’s movement by using spike strips at a point earlier than the fourth roadblock. It noted that the place where Mr Tonkev and his accomplice had been hiding and the route they were intending to take had been unclear and that, moreover, the situation had unfolded very quickly.

Upon a further appeal by the first applicant, in a final decision of 19 October 2012 the Plovdiv Court of Appeal upheld the discontinuation of the criminal proceedings. It noted that Mr Tonkev’s death had occurred within the framework of a police operation organised with the aim of apprehending him after he had stolen a car. It observed also that Mr Tonkev’s actions had created “a real and immediate danger” for the police officers at the third roadblock and that in firing the shot which had killed Mr Tonkev, Mr K.A. had acted in self-defence. The Court of Appeal noted further that at the moment when the shots were fired, the attack carried out by Mr Tonkev had not ceased and that the actions taken in defence had been aimed at repelling it. This was illustrated by the fact that the shots fired by Mr K.A. had been directed at the front right door of the car, and not at the side windows; thus, he had aimed to halt the car’s movement and prevent its running over him and his colleagues. Lastly, the Court of Appeal concluded that the self-defence manifested in the case had been within the necessary limits, seeing that the attack launched by Mr Tonkev had been strongly violent. For the self-defence to be considered disproportionate, it would have to have clearly exceeded what had been necessary to repel the attack, and this had not been the case.

Article 12 § 1 of the Criminal Code of 1968 provides that an act committed in self-defence and not causing disproportionate harm to the attacker is not criminal.

Under Article 119 of the Criminal Code, causing death by a disproportionate reaction to an attack is punishable by up to five years’ imprisonment.