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28.1.15

European Court of Human Rights Hears Genocide Denial Case Perinçek vs. Switzerland

The European Court of Human Rights (ECHR) held a Grand Chamber hearing on January 28, 2015 in Strasbourg (France) in the case of Dogu Perincek v. Switzerland. The case stems from a Swiss court verdict that in 2007 fined Perincek, a Turkish ultranationalist activist and chairman of Turkey’s Workers’ Party, over his 2005 statement calling the Armenian Genocide an “international lie.” In appealing to the ECHR, Perincek’s defense argued that the Swiss court violated Perincek’s right to freedom of expression; the court ruled in their favor in December 2013. On March 7, 2014, Switzerland filed an appeal, which led to today’s hearing.
A first-rate legal team, which included renowned human rights lawyers Geoffrey Robertson and Amal Alamuddin Clooney, as well as Armenia’s Prosecutor General Gevorg Kostanyan, represented Armenia at the ECHR.The government of Switzerland has also joined the appeals process, as have two Turkish human rights organizations that have submitted legal briefs in favor of Armenia.

Representatives of Armenian organizations from Switzerland, France, and Belgium were present, and a handful of them have provided the Court with written notes, alongside the Human Rights Association and the Center for Truth Justice Memory from Turkey, which focused on the personality of Perincek, his nationalist, anti-Semitic, anti-minority and anti-Armenian rhetoric, for the Court to fully understand the entire context, something that Geoffrey Robertson stressed: “Perincek is a denialist window shopper, going from one European country to another.”

Armenia’s Case
In her arguments, Clooney highlighted Turkey’s hypocrisy for defending the right to freedom of speech in Europe, while at the same time Hrant Dink is murdered in Istanbul, and the same anti-Armenian sentiments of a 100 years ago are still alive in the country.
Clooney went on to accuse the court of being “simply wrong. It [the court] casts doubt on the reality of genocide that Armenian people suffered a century ago.”
“Armenia must have its day in court,” she added. “The stakes could not be higher for the Armenian people.”
In her presentation, Clooney pointed out Turkey’s double standards on freedom of expression, when the country has been notorious in suppressing speech and jailing journalists, as well as going as far as to ban social media platforms such as YouTube and Twitter.
“Armenia is not here to argue against freedom of expression any more than Turkey is here to defend it. This court knows very well how disgraceful Turkey’s record on freedom of expression is,” she said. “You have found against the Turkish government in 224 separate cases on freedom of expression grounds.”
Clooney also made reference to Hrant Dink, who was prosecuted in Turkey for expressing his view about the Armenian Genocide and subsequently was gunned down by Turkish nationalists in 2007. For eight years the Dink case has been lingering in Turkish courts.
“Armenia has every interest in ensuring that its own citizens do not get caught in a net that criminalizes speech too broadly. As the family of Hrant Dink know about all too well,” said Clooney.
Switzerland has laws against the denial of all genocides as part of its anti-racism laws, but the ECHR ruled that Perinçek's right to freedom of speech was violated when he was convicted as a criminal by a Swiss court in 2007 for his claims.
Clooney concluded her remarks by pointing out that Perincek and his colleges on the Talaat Pasha Committee, a committee named after the principle perpetrator of the Armenian Genocide and deemed to be xenophobic by the European Parliament, “celebrated the judgement in its current terms, and triumphantly complained that it has solved the Armenian question once and for all.” According to Clooney, the comments on the lower court judgement, “dishonor the memory of the Armenians who perished under the Ottoman Empire a century ago and assist those who will deny the genocide and incite racial hatred and violence,” expressing hope that the chamber would, “set the record straight.”
Perincek, whose conviction stemmed from statements made in 2005 in Lausanne, where he said the Armenian genocide was an “international lie,” spoke in his own defense saying he never incited hatred toward Armenians. He claimed that his comments at the time were in reference to the Kurds (*).
“We are here for the liberty of Europeans,” said Perincek. "Liberty for those who criticize the established status quo.
“I share the pain of Armenian citizens; you cannot find a word of mine that expresses antagonism against them. I hold the great powers responsible for what happened in 1915. There should be no taboos for the right to speak.”
Robertson fired back by saying that Perincek specifically went to Europe to deny the Genocide, adding that the Turkish politician was an admirer of Talaat Pasha, whom Robertson called the “Ottoman Empire’s Hitler.”
“It [the statement] was made by a man who only came to Switzerland in order to be convicted. That was his purpose. He went to Germany, France, at the end of the day he tried to go Greece to expostulate, but was turned away. He is a genocide denier forum shopper. He is an incurable genocide denier, a criminal, and a vexatious litigant,” said Robertson.
According to Robertson, the denial of the Armenian Genocide is inherently insulting to all Armenians. While he called the Holocaust an “appalling example of the worst of crimes against humanity,” he stated that it is wrong to excuse or to minimize other mass murders on the grounds of race and religion because they have fewer victims or different methods of killing. “What matters to Armenians, and Jews, and Bosnians, and Bengalis to Rwandan Tutsis and today, Yezidis, is not the manner of their death or whether an international court has convicted the perpetrators, but the fact that they were targeted as unfit to live because they were Jews or Armenians or Yezidis,” he explained.
“The Armenian nation survived and overcame. It has never asked this Court to pronounce on the sufferings it has witnessed. But nor did it expect this Court to allow the deniers to find a safe haven in its pronouncements, which are already used for propaganda purposes of falsifying the history,” Armenia’s Prosecutor General said in his remarks.
Kostanyan said that Armenia’s role is to point to the principles, under which this case should be decided and to indicate the errors that affected the lower court judgment.
“We are here to ensure that such errors are never repeated by a Court that speaks in the name of human rights,” Kostanyan concluded.

Perincek’s Argument
Mehmet Cengiz, representing Dogu Perincek, presented before the court first, and argued that Perincek’s motives were not of a racist nature, but that his statements were in essence a legal assessment of the “1915 events.”
“Dr. Perincek made a legal assessment. He did not ignore the massacres and the deportations; he did not deny the actus reus of the 1915 events. The dispute between the parties concerns the legal definition of the tragic events that took place a hundred years ago in the Ottoman Empire. Mr. Perincek defends that these events cannot be defined as a crime of genocide. Perincek rejects the judicial qualifications of the events as genocide and bases his opinions on the 1948 UN genocide convention,” said Cengiz, who also claimed that there is no consensus on the genocide. “Mr. Perincek made similar statements in both Germany and France and did not face similar charges,” he said.
Cengiz argued that Perincek had no racial motives, having spent his life countering racism. “You can seek many motivations, many intents… but even if you sought for 1,000 years, you won’t find a racist intent because Dr. Perincek has spent his lifetime fighting against racism, this is why he has served 14 years in prison… (**) Take a look at his files: in every case he fought against racism.”
Perincek, on the other hand, spoke about “Europe’s tradition and heritage of liberty.” “Freedom of expression means liberty for different, even deviating opinions, and freedom is needed for those who oppose the status quo. If circulating opinions and prejudices cannot be discussed then there is no freedom,” said Perincek, adding, “We need to make sure we rid ourselves from the negative effects of judgements, opinions, which dates back to the First World War. The consciousness, the thinking of the Europeans about the event of 1915 should not be surrounded and besieged by prohibitions. Let us secure the freedom to access the truth.”
Perincek also spoke about “90 kilos” of documents that his team submitted to the court as evidence in an attempt to prove why the Armenian Genocide should not be labeled as such.
Perincek spoke about “the pain” he “shares” with the Armenian people, while claiming that massacres and forced deportations were “mutual” in the Ottoman Empire.
“Let us protect peace and brotherhood in Europe, in Turkey. The accusation of the Armenian genocide has turned into a taboo, it’s turned into a tool to discriminate against Turkish people, to humiliate Turks,” said Perincek, adding, “Today Turks and Muslims are the black people of Europe. Let also the oppressed ones defend themselves.”
Until two days before the hearing, Perincek was under a travel ban due to an ongoing Ergenekon related case against him. The Istanbul 4th High Criminal Court lifted the travel ban on Jan. 26. “Now, the [next step] is [for] the historical case in Strasbourg to finalize the lie of Armenian genocide,” read a statement released by the socialist Workers’ Party, which Perincek chairs, reported Turkish sources.
Christian Laurent Pech, also representing Perincek, said the trial was not about whether the proper characterization of what happened to the Armenians in 1915 is genocide. “In these troubled times, we find it important to recall that one of the main purposes of freedom of expression is to protect opinions that might not be popular whether in Switzerland, Turkey, or elsewhere,” he said.
Stefan Talmon, representing the government of Turkey, argued that Perincek was merely sharing an opinion, which is not the same as targeting a certain group of people. “Calling something an ‘international lie’ is not the same as calling a certain group of persons ‘liars,’ as such, it has no racial connotation,” said Talmon.

Switzerland Argues for ‘Well-Reasoned’ Judgment
Representing the government of Switzerland, Frank Schurmann laid out reasons why his government believes that the Swiss court handed down “well-reasoned judgments reaching a perfectly justifiable result.” He argued that the lower court in reaching its verdict ignored the context in which Perincek’s statements were uttered. He forcefully argued that victims of genocidal crimes, as well as their descendants, deserve to have their rights legally protected from statements that were an assault on their human dignity.
“It is not denial per se which warrants punishment, but the hate and discriminatory intent that must also be present,” argued Schurmann. “Let us also recall the applicant’s identification with Talaat Pasha, one of the instigators of the fact in issue, found guilty by the court martial of the Ottoman Empire,” he said, and cited the intervention offered to the court in favor of Armenia by Turkish human rights organizations, which helped further place Perincek’s statements into a larger context.
Professor Daniel Thurer also spoke on behalf of the Swiss government, providing further arguments and in support of the Swiss court’s position.
According to police, hundreds of Turkish protestors gathered outside the courthouse, carrying Turkish and Azeri flags, portraits of Ataturk, and banners. Some began cheering as Perincek emerged from the court.

Armenian organizational representatives from across Europe as well as dozens of Armenians also gathered in front of the Human Rights Court building, calling for an end to genocide denial.
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(*) It remains unclear what is the relation of the "international lie" of the Armenian genocide with the Kurds ("Armeniaca"). 
(*) "However, with the 1980 military coup, Perincek was distanced from politics. In 1990, with the issue of the Law of Censorship and Exile, Perincek was arrested and put in Diyarbakir Prison.
In 1991, Perincek became the leader of the Socialist Party which he founded. Upon the closure of the Socialist Party in 1992, Perincek founded the Workers' Party (IP)" (Zeki Ayik, "Perincek: 'I am the architect of the struggle against the Mafia-Gladio dictatorship,'" Hurriyet Daily News, November 26, 1996). The news piece does not mention whether Perincek founded those two parties when in prison. In any case, if he stayed in prison from 1990-1991 and from 2013-2014 (or even from 2008, when he was arrested in connection with the case Ergenekon), that does not make 14 years ("Armeniaca").

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