Spelmann joint dissenting opinion of Judges Casadevall, Berro, De Gaetano, Sicilianos Sivil and Kuris
1. We are not able to agree with the conclusion that in this case there has been a violation of Article 10 of the Convention.
2. We note at the outset that the Court has shown a certain timidity reaffirming the position of the chamber in the sense that it is not required to say whether the massacres and deportations suffered by the Armenian people at the hands of the Ottoman Empire can be qualified as genocide within the meaning assumed by the term in international law, but also that it has no jurisdiction to decide, one way or the other, a binding legal conclusion on this point (paragraph 102). The massacres and deportations suffered by the Armenian people were constitutive of genocide falls under “obvious”. The Armenian Genocide is a historical fact clearly établi.1 To deny is to deny the obvious. But that is not the issue. The case is not about historical truth, nor the legal qualification of the events of 1915. The real challenge of the case concerns the question whether it is possible for a State to criminalize the insult to the memory a people victim of a genocide without exceeding its discretion. We believe this is the case.
1. See for details, both on the facts and the intentional element of those who committed the crimes, Hans-Lukas Kieser and Donald Bloxham, in The Cambridge History of the First World War, Cambridge, Cambridge University Press, 2015, Vol. I, “Global War”, Ch. 22 (Genocide), pp. 585-614.
3. In these conditions, we can not follow the approach of the majority as to the assessment of what the applicant (I). The same applies to the assessment of the impact of geographical and historical factors (II), the implications of the time factor (III) and the lack of consensus (IV) of the lack of an obligation to criminalize (V), as well as the weighing performed by the national authorities (VI).
The assessment of the applicant’s comments
4. Our disagreement mainly concerns how the majority has understood the complainant’s statements (paragraphs 229-241). This speech, especially pernicious, and its consequences have been minimized throughout the stop. Although they do not necessarily form a discourse falling under Article 17 of the Convention – although for some of us this is indeed the case – the impugned constitute, in our view, a distortion of historical events that goes far beyond a simple denial of the Armenian genocide as a legal qualification. They contain the animus to insult people. Ils’agit a real diversion aimed Armenians as a group, trying to justify the actions of the Ottoman authorities by presenting almost as defensive and is of racist denigrating the memory of the victims, as has been judged rightly by the Federal Court. To the extent that it attempts to discredit the “evidence”, the speech in question – also confirmed by the applicant at the hearing very clearly – can even be considered a call if not hatred and violence, at least in intolerance against Armenians. Far from being liable to the historical, legal and political, it presents the Armenians as aggressors of the Turkish people. He calls “international lie” using the term “genocide” to describe the atrocities against Armenians. The applicant claims, moreover, Talaat Pasha, one of the events of the protagonists, presented at the hearing as a “Friend of the Armenians” (sic). This is in excess of place, in our view, which could be acceptable under Article 10 of the Convention.
5. Thus, the case concerns simply the limits of freedom of expression. By applying the sequential reading grid of Article 10 of the Convention, we have no difficulty concluding that the interference and the legality of it. The police court in Lausanne, in its decision of 9 March 2007, held that the applicant had denied the Armenian Genocide, justifying the massacres. The Federal Court, in its judgment of 12 December 2007, has length on the mental element of the offense (mobile racial discrimination, 5.1 and 5.2) arriving at the conclusion that the findings of fact “démontr [ed] the existence of sufficient motives in addition to nationalism, not p [ouvaie] be noted that the racial, ethnic, respectively. “ The applicant was prosecuted for violating Article 261 bis of the Penal Code, which does not, as such, no problem about its content and its legitimacy in the light of the values protected by the Convention. The courts have considered the facts and assessed the impugned. The applicant knew that taking these he exposed himself to the application of Article 261 bis of the code. This provision also pursues the legitimate aims of protecting the rights of others and prevention of disorder.
The impact of geographical and historical factors
6. Beyond this aspect, it seems to us that the methodology used by the majority, here and there, problematic. This applies in particular “geographic and historical factors,” further developed in paragraphs 242-248 of the judgment. Downplay about the applicant by attempting to confine geographically leads to seriously relativize universal and erga omnes of human rights, which is the quintessence of their contemporary meaning. Indeed, as has been strongly affirmed by the Institute of International Law, the obligation for States to ensure respect for human rights is an obligation erga omnes; “It is incumbent upon every State vis-à-vis the international community as a whole, and every State has a legal interest in the protection of human rights” (Resolution on “the protection of human rights and principle of non-intervention in internal affairs of states “, Yearbook of the Institute of International Law, 1989, vol. II, p. 341, Article 1). In the same vein, the Declaration and Programme of Action of the Vienna World Conference on Human Rights states that “the promotion and protection of all human rights are a legitimate concern of the international community “(UN official documents A / CONF / 123, para. 4, 1993). 7. It is obvious that this universalist approach contrasts with that of the majority in this judgment. If one wanted to draw all the logical consequences of the geographically restricted approach appears to be that of the majority, one would think that the denial of genocides in Europe committed in other continents, such as the Rwandan genocide or that perpetrated by the Khmer Rouge in Cambodia would be protected by freedom of expression without limits or almost. It does not seem that such a view reflects the universal values that are enshrined in the Convention.
The impact of the time factor
8. The emphasis on the time factor (paragraphs 249-254 of the judgment) seems to pose similar problems. Should we conclude that within 20 or 30 years, Holocaust denial itself would be acceptable under the freedom of expression? What about the compatibility of that factor with the principle of limitation for war crimes and crimes against humanity?
The lack of consensus
9. The lack of consensus on which is based the majority in paragraphs 258-268, could at most be seen also as a factor specific to widen the margin of appreciation of the Swiss authorities. At the risk of repeating ourselves, we believe that Parliament has every right to blame remarks like those uttered by the applicant. The issue of consensus as limit the discretion of national authorities would only arise in the event that there would be consensus on the explicit prohibition of such criminality. But this is not the case here.
The absence of an obligation to criminalize
10. As for the lack of an obligation for Switzerland to criminalize remarks in question (see paragraphs 258-268), we confess to have the greatest doubts about the relevance of the argument. Can we not say, instead, that a custom (regional) gradually emerges through the practice of States, the European Union (Framework Decision 2008/913 / JHA) and ECRI (Recommendation policy # 7)? Note also that beyond Europe, the United Nations Committee on the Elimination of Racial Discrimination has repeatedly recommended the criminalization of Holocaust denial discourse. Can we ignore these developments relate to a hand by standing on the ground of an alleged conflict of obligations? 11. Apart from these developments point in the opposite direction to that taken by the majority, it should be pointed out that the Supreme Court of the Canton of Vaud, in its decision of 13 June 2007, recalled that the particularity of the standard Swiss anti-racism was the fact that the national legislature had decided, acting is including genocide or other crimes against humanity, to go beyond the minimum requirements set by the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. In our opinion, a legislature has every right to blame remarks like those uttered by the applicant. The Swiss national legislature, following lengthy parliamentary debates, said that speeches such as those made by the applicant deserved to be. We believe that the need for the criminalization falls in a democratic society, in this case, the state’s margin of appreciation.
The balancing of the rights in question
12. Finally, concerning the balancing of the rights in question (see paragraphs 274-280 of the judgment), it seems that the Federal Court has done an excellent job, measured, detailed and motivated. He dedicated point 6 to freedom of expression guaranteed by Article 10 of the Convention by speaking as follows:
“(…) The applicant essentially seeks, by a provocative approach to obtain Swiss judicial authorities for confirmation of his theses to the detriment of members of the Armenian community, for whom this issue plays a central role identity. The conviction of the appellant thus tends to protect the human dignity of the members of the Armenian community, who recognize themselves in 1915. The memory of the genocide repression of genocide denial finally constitutes a genocide prevention measure within the meaning of art. I of the Genocide Convention concluded at New York December 9, 1948, approved by the Federal Assembly March 9, 2000) (…) “
13. Balancing, there was in this case. Therefore, the conclusion in paragraph 280 is not justified.
14. In a word, we are convinced that there has been no violation of Article 10 of the Convention in this case.
