Perinçek conviction violated ECHR

Press Release, FOJ, 15.10.2015

Bern. By convicting Turkish citizen Doğu Perinçek, Switzerland violated his right to freedom of expression (Art. 10 ECHR). So ruled the Grand Chamber of the European Court of Human Rights (ECtHR) with a majority of 10:7 in its judgment announced today in Strasbourg. The judgment is final and thus upholds the ECtHR Chamber judgment of 17 December 2013 in the same case. The Federal Office of Justice (FOJ), which represented the Swiss government before the ECtHR, has acknowledged with interest the judgment of the Grand Chamber.

On 9 March 2007, Turkish national Doğu Perinçek was sentenced in Canton Vaud to both a financial penalty and a criminal fine on the basis of a criminal anti-racism provision in the Swiss Criminal Code (Art. 261bis para. 4 CC) for denying the genocide of the Armenian people. The Cantonal Court of Canton Vaud and the Federal Supreme Court both rejected appeals against the judgment. In its Chamber judgment of 17 December 2013, the European Court of Human Rights determined that the Swiss courts' rulings violated the appellant's right to freedom of expression. On 17 March 2014, Switzerland requested that the case be reviewed by the Grand Chamber. The review was to clarify the degree of discretion available to the Swiss prosecuting authorities in applying criminal law to combat racism.

The judgment of the Grand Chamber confirms the great importance that the ECtHR attaches to freedom of expression. It is too soon to predict the legal consequences of this outcome. A thorough analysis of the comprehensive judgment will be required before it becomes clear whether its implementation will require the more restrained application of anti-racism law, or legislative reform.

In addition, the Grand Chamber decided by 12 votes to five that its determination of a breach of Art. 10 ECHR constituted sufficient compensation for the non-pecuniary loss that Perinçek had claimed. It unanimously rejected all other compensation claims.

Within six months at most, Switzerland will report on how it intends to proceed to the Committee of Ministers of the European Council, which is responsible for monitoring the execution by Member States of final judgments. The report must set out the action that Switzerland has taken to eliminate the consequences of the violation determined in this individual case, as well as to prevent such violations in the future. If Switzerland is not yet able to report fully on the execution of the judgment, it must at least present a binding schedule indicating when the intended implementation measures will be undertaken.

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