Short comment and information regarding referral to Grand Chamber of two cases the ECtHR decided on earlie

Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2014-7/2European Court of Human Rights: Perinçek v. Switzerland and Pentikäinen v. FinlandTwo cases that have been previously reported in IRIS, Perinçek v. Switzerland (see IRIS 2014-2/1) and Pentikäinenv. Finland (see IRIS 2014-4/2), were referred to the Grand Chamber on 2 June 2014. The consequence of thereferrals is that neither the judgment of 17 December 2013 in Perinçek v. Switzerland, nor the judgment of 4February 2014 in Pentikäinen v. Finland have become final. In its application of Article 43 of the Convention thepanel of the Grand Chamber was of the opinion that both cases raise serious questions affecting the interpretationor application of the Convention, or concern serious issues of general importance, in which the Grand Chamber of17 judges is now to deliver a final judgment, most likely in 2015.In Perinçek v. Switzerland, the Second section of the Court ruled by five votes to two, that Switzerland had violatedthe right to freedom of expression by convicting Dog˘u Perinçek, chairman of the Turkish Workers’ Party, of publiclychallenging the existence of genocide against the Armenian people. The Swiss Courts found Perinçek guilty ofracial discrimination within the meaning of Article 261bis of the Swiss Criminal Code. According to the SwissCourts, the Armenian genocide, like the Jewish genocide, was a proven historical fact, recognised by the SwissParliament, while Perinçek’s motives in denying this historical fact were of a racist tendency and did not contributeto the historical debate. The Second section of the European Court however clearly distinguished the discussionson the legal qualification of the atrocities perpetrated against the Armenian people in the first decades of the 20thcentury from those concerning the negation of the crimes of the Holocaust, committed by the Nazi-regime shortlybefore and during World War II. The Court took the view that Switzerland had failed to show how there was a socialneed in that country to punish an individual for racial discrimination on the basis of declarations challenging thelegal characterisation as “genocide” of acts perpetrated on the territory of the former Ottoman Empire in 1915 andthe following years. The Swiss Government requested the referral to the Grand Chamber in order to reconsiderthe approach and reasoning of the majority of the Second section, finding that there has been a violation of Article10.In Pentikäinen v. Finland the Fourth section of the European Court found that a Finnish press photographer’sconviction for disobeying a police order while covering a demonstration did not breach his freedom of expressionas guaranteed by Article 10 of the Convention. Pentikäinen had not been prevented from taking photos of thedemonstration and no equipment or photos had been confiscated. His arrest was a consequence of his decision toignore the police orders to leave the area, while there was also a separate secure area which had been reservedfor the press. The Court considered that the fact that the applicant was a journalist did not give him a greater rightto stay at the scene than the other people and that the conduct sanctioned by the criminal conviction was not hisjournalistic activity as such, but his refusal to comply with a police order at the very end of the demonstration,when the latter was judged by the police to have become a riot. The European Court concluded, by five votesto two, that the Finnish courts had struck a fair balance between the competing interests at stake. Pentikäinenrequested a referral to the Grand Chamber. His claim was supported by the Finnish Union of Journalists, theInternational Federation of Journalists and the European Federation of Journalists, arguing that the Court’s findingrisked undermining press freedom and the rights of journalists covering issues of importance for society.• Decision by the Panel of 2 June 2014 to refer the case of Perinçek v. Switzerland, Appl. No. 27510/08 of 17 December 2013, to the GrandChamber NN• Decision by the Panel of 2 June 2014 to refer the case of Pentikäinen v. Finland, Appl. No. 11882/10 of 4 February 2014, to the Grand Chamber.NNDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedIRIS 1in the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Perinçek v. Switzerland and Pentikäinen v. Finland

https://biblio.ugent.be/publication/5660775/file/5660776

European Court of Human Rights: Perinçek v. Switzerland and Pentikäinen v. Finland

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Ghent University Academic Bibliography