paras [115]-[117]

(Application no. 27510/08 , European Court of Human Rights)

115. The Federal Court has itself admitted that there is no unanimity in the community as a whole concerning the legal characterisation in issue. Both the applicant and the Turkish Government cited numerous sources – which have not been contested by the respondent Government – attesting to diverging views, and argued that it would be very difficult to speak of a “general consensus”. The Court agrees, and would point out that there are differing views even among the various political bodies in Switzerland: whereas the National Council – the lower house of the Federal Parliament – has officially recognised the Armenian genocide, the Federal Council has repeatedly refused to do so (see points 4.2 and 4.5 of the Federal Court judgment in paragraph 13 above). In addition, it appears that to date, only about twenty States (out of more than 190 in the world) have officially recognised the Armenian genocide. In some countries, as in Switzerland, recognition has not come from the Government but only from Parliament or one of its chambers (see in this connection the declaration of 24 April 2013 by certain members of the Parliamentary Assembly of the Council of Europe, paragraph 29 above).

116. The Court also agrees with the applicant that “genocide” is a clearly defined legal concept. It denotes an aggravated internationally wrongful act for which responsibility may nowadays be attributed either to a State, in accordance with Article 2 of the 1948 Convention (see paragraph 18 above), or to an individual, notably on the basis of Article 5 of the Rome Statute (see paragraph 20 above). According to the case-law of the ICJ and the International Criminal Tribunal for Rwanda (see paragraphs 21-23 above), for the crime of genocide to be made out, it is not sufficient for the members of a particular group to be targeted because they belong to that group, but the acts in question must at the same time be perpetrated with intent to destroy the group as such in whole or in part (dolus specialis). Genocide is therefore a very narrow legal concept which, moreover, is difficult to prove. The Court is not satisfied that the “general consensus” to which the Swiss courts referred as a basis for the applicant’s conviction can be relied on in relation to these very specific points of law.

117. In any event, it is even doubtful that there can be a “general consensus”, particularly among academics, about events such as those in issue in the present case, given that historical research is by definition subject to controversy and dispute and does not really lend itself to definitive conclusions or the assertion of objective and absolute truths (see, to similar effect, the Spanish Constitutional Court’s judgment no. 235/2007, referred to in paragraphs 38-40 above). In this connection, a clear distinction can be made between the present case and cases concerning denial of crimes relating to the Holocaust (see, for example, the case of Robert Faurisson v. France, determined by the UN Human Rights Committee on 8 November 1996, Communication no. 550/1993, doc. CCPR/C/58/D/550/1993 (1996)). Firstly, the applicants in those cases had not disputed the mere legal characterisation of a crime but had denied historical facts, sometimes very concrete ones, such as the existence of gas chambers. Secondly, their denial concerned crimes perpetrated by the Nazi regime that had resulted in convictions with a clear legal basis, namely Article 6, sub-paragraph (c), of the Charter of the (Nuremberg) International Military Tribunal, annexed to the London Agreement of 8 August 1945 (see paragraph 19 above). Thirdly, the historical facts challenged by the applicants in those cases had been found by an international court to be clearly established.  

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