The 1915 Events in National and International Courts and Freedom of Expression

The crime of genocide is a legal concept and processes related to both its definition and the trial and punishment of its perpetrators have been determined by an international agreement (The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide) which is a legal text. Until now, there is no national or international court decision recognizing the events in 1915 as genocide. On the other hand, there are national and international court decisions which criticize the fact that evaluating the 1915 events as genocide is presented as the only accurate historical fact and alternative history readings are accused of denial.

The first of such decisions was taken by the European Societies Trial Court. In October of 2003, two French citizens, Armenians Gregoire and Suzanne Krikorian, applied to the trial court with the support of a diaspora organization called Euro-Armenie ABSL and stated that the European Union (EU) giving the status of candidacy to Turkey was against the decision of European Parliament in 1987. The Krikorians argued that Armenian genocide was clearly recognized in this decision and the denial of it would make an obstacle for Turkey’s full membership in the EU. Furthermore, they stated that they were offended by Turkey being given the status of candidacy, they demanded that the cost of the court is to be paid, and a spiritual and symbolic compensation of 1 Euro is to be given (IDM decision, 2003, parag. 1-2)

The trial court examined the application and dropped the case by not considering holding an appropriate oral hearing and decided that court expense of 30,000 Euros is to be paid by the Krikorians. The significant thing here is that the trial court clearly pointed out that the European Parliament decision in 1987 would not give legal results with this statement in the decision text:

It is enough to state this much that the 1987 decision is a document of complete political explanations. This decision can be anytime changed by the Parliament. For this reason, it can have an obligatory legal result neither for the writers of it nor for other defendant institutions with a stronger reason.

(Trial Court decision, 2003, parag. 19)

It can be understood from these statements that the decisions which were accepted by legislative branches of various countries after 1965 and defined the 1915 events as genocide were actually prepared with political considerations and that they cannot give legal results. In other words, this decision of the trial court emphasized on the fact that the genocide can be recognized only by authorized courts, not by political decisions which can easily be changed or removed.

Another court decision, which questioned the fact that recognizing the 1915 events as genocide was projected as the “only historical fact,” was taken by Constitutional Court of France (CCF) in 2012. The legal process behind this decision started with the approval of a law of one single sentence by France’s National Assembly and Senate in 2001; France “officially recognized the 1915 Armenian genocide” with this law. Then, the Socialist Party prepared a draft law, which demanded the denial of Armenian genocide, just like the Holocaust, to be punished by imprisonment up to one year and fine of 45,000 Euros. This draft was accepted with 106 positive and 19 negative votes in a voting where 452 members of the French National Assembly, which consisted of 577 parliament members, were not present; however, the French Senate rejected this draft and removed it from the agenda (Laçiner, 2008: 320). A draft with similar content was again presented to the National Assembly and it was accepted in the Senate as well after being accepted here. However, this time the Constitutional Court of France, which is the highest judicial body in France, evaluated it as violation of freedom of expression and rejected with the reason that it was against the constitution (FAK decision, 2012, parag. 4 and article 1). Furthermore, the Constitutional Court of France stated that the law dated 2001 which constituted the foundation for this draft was in lack of “normative element” and revealed that the qualification of this law as a law could even be questioned (FAK decision, 2012, parag. 6). In other words, this decision, which recognized the Armenian genocide, was evaluated as a law deprived of normative quality which could give legal results.

Apart from the trial court decision which revealed that parliamentary decisions could not give legal result because of their political quality and CCF decision which argued that the denial of the Armenian genocide should be included in the scope of freedom of expression, the decision of European Court of Human Rights on Perinçek Case is also quite significant though it is still in the phase of appeal. ECHR decision of which core was constituted of freedom of expression has a great significance as it clearly questions the claim that the Armenian genocide is “a historical fact accepted by the whole world.”

The legal process behind the case where this decision was taken started when Switzerland-Armenia, which was an Armenian diaspora organization in Switzerland, sued Doğu Perinçek on 15 July 2005 after he defined the Armenian genocide as “an international lie” in a series of conferences he arranged in Switzerland where the denial of the Armenian genocide was regarded a crime. On 9 March 2007, the Lausanne court convicted Perinçek and after the Vaud Canton Court where Perinçek applied for appeal and then an upper court Federal Court approved the decision of Lausanne Court, Perinçek applied to the ECHR by arguing that these courts violated his freedom of expression through these decisions. The ECHR decided that Switzerland violated Perinçek’s freedom of expression on 17 December 2013 (ECHR Press Meeting, 2013, p. 1-2).

No matter if the decision was taken to the Great Office, which can be defined as the appeal organ of ECHR, to be reviewed after the application of Switzerland government, it is seen that three important points were underlined in the decision text. Firstly, the decision evaluated the discussion of controversial and sensitive issues without the element of provoking grudge and hatred and racism as freedom of expression and the punishment and prevention of this discussion as an apparent violation of freedom of expression. In other words, the 1915 events were defined as a “controversial and sensitive issue” rather than genocide on which a compromise was reached (ECHR Press Meeting, 2013, p. 1). Secondly, the decision underlined that the whole of international community did not recognize the 1915 events as genocide, only about 20 of 190 countries in the world openly recognized Armenian genocide and that this issue was a controversial and sensitive issue (ECHR Press Meeting, 2013, p. 3). Lastly, the decision completely separates the Holocaust and the 1915 events from each other. In the decision, it was stated that the Holocaust was accepted as a genocide which could never legally be rejected and this situation was irremovable with the decision of an authorized international court (Nuremberg Courts) and it was also indirectly emphasized that the 1915 events could not be defined as genocide unless such a court decision was taken (ECHR Press Meeting, 2013, p. 3).

In conclusion, the decisions taken by these three courts directly or indirectly criticize the claim that Armenian genocide is an only and undeniable historical fact. Whether to call the 1915 events genocide or not is another topic of discussion; however, it is not legally possible to talk about a crime of genocide as long as it is not decided by the authorized courts specified in the articles of Genocide Convention. Also, the point underlined by the court decisions is that there should be regulations allowing the discussion of historical events freely and that prevention of this violates fundamental rights and freedoms.