International lawyer says “to some extent” Armenians secured victory with European Court’s final judgment on Perinçek case

“I think we pay too much attention to Perincek case (Perinçek v. Switzerland, ECtHR GC judgment delivered on October 15, 2015 – Panorama.am), because the European Court of Human Rights (ECtHR) did not make a decision on principles [of Swiss law criminalising the denial of Armenian Genocide as incitement to hatred or violence] but Armenians should look at the judgment with a broader view, that of the Armenian Cause’s perspective. The Court have just made a decision about this specific sanction. First of all, as they have stated in the Grand Chamber judgment, they did not take the role of assessing or qualifying the events [of genocide]. They just withdrew from this debate”, - Philippe Raffi Kalfayan, Legal Counsel and Associate Researcher in International Public Law at Paris 2 University, told Panorama.am in an exclusive interview.

On the eve of third anniversary of the initial judgment delivered by the European Court of Human Rights on December 17, 2013 in the case of Perinçek v. Switzerland, Panorama.am sat down with a prominent legal counsel and human rights advocate Philippe Raffi Kalfayan to ask him few questions about the legacy of this judgment and future strategies of tackling the campaign of anti-Armenian hate speech perpetuated by Turkey and Azerbaijan internationally.

“In the lower chamber decision of December 17, 2013, there was reconsideration by the Court of the historical and political reality of the Armenian Genocide. This was absolutely unacceptable. The ECtHR went much beyond its mission, based on very ridiculous arguments”, - Kalfayan recalls, adding that it then triggered the Government of Armenia to intervene in the Grand Chamber and correct the record of the Court.

Asked to elaborate about the legacy of ECtHR Grand Chamber judgment on Perinçek v. Switzerland, Kalfayan said the case was often badly misinterpreted in the media and by general public.

According to Kalfayan, who previously served as Secretary General of the International Federation for Human Rights (FIDH) in 2001-2007, all the state parties involved in the ECtHR Grand Chamber deliberations -- France, Switzerland, Turkey, Armenia – demonstrated that they were not willing to bring the genocide debate to the Court.

“Because this is not within the scope of the European Convention [on Human Rights and Fundamental Freedoms], this is not a criminal court. They have nothing to do with this”, - he says.
“The Grand Chamber judgment is correction of this record. They recognized it was not their role to enter this debate and acknowledged it was in the power of Swiss Court to consider those historical facts as genocide”.

Kalfayan adds that it is very important for Armenians to understand that the European Court did not overrule the Swiss assessment of historical facts, which according to the Swiss Courts, are constitutive of the crime of genocide.

“The ECtHR did not challenge this decision by the Swiss Courts. The only thing the ECtHR challenged was the disproportionate sanctions adopted by the Swiss Court in relation with the nature of violation in question”, - he adds. 

“To some extent, Perincek judgment [as delivered by the ECtHR Grand Chamber] is a victory for the Armenians”, - Kalfayan concludes, adding that neither European judges, nor Turkey and nor Perincek denied the reality of massacres and deportations of Armenians.

“There is one very interesting paragraph in the Grand Chamber judgment, where the Court recognize that the genocide is a constitutive element of the identity of Armenians, and this confers the right to respect for dignity to the Armenians. “The Court accepts that the interference with the applicant’s statements, in which he denied that the Armenians had suffered genocide, was intended to protect that identity, and thus the dignity of present-day Armenians” (Paragraph 156). This formulation presupposes the reality of the genocide, because they said quite clearly this was a component of the identity of the Armenians, without entering this debate on the legal qualifications. They consider those facts as reality. The dissenting opinion of seven judges is stronger. They clearly said that for them the historical facts of massacres and deportations of Armenians in the Ottoman Empire were obvious and undeniable genocide, something that is “self-evident”, as phrased by the dissenting judges”, - Kalfayan reasoned.
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On December 17, 2013 the lower chamber of the European Court of Human Rights delivered a judgment on Perinçek v. Switzerland and pronounced a number of allegations with regards to Swiss Courts’ sanctions against Dogu Perincek, a former chairman of left-wing ultranationalist Patriotic Party in Turkey, who made racist and xenophobic statements against Armenians while in Switzerland in 2007.

The Swiss courts ordered this controversial Turkish politician to pay a fine after finding him guilty of racial discrimination for his remarks alleging that “Armenian genocide is a great imperialist lie”, which he repeated on several occasions. The case was lodged with the ECtHR following the upper Swiss court's 2007 conviction.

Next year after his radical appearances in Switzerland, Perincek was detained and then arrested in Turkey for alleged coup attempt and spent time in prison from March 2008 (in August 2013 he was again sentenced to aggravated life imprisonment)  till March 2014, when he was released with other members of Ergenekon network.