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Criminalizing the Denial of the So-Called Armenian

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CRIMINALIZING THE DENIAL OF THE SO-CALLED ARMENIAN GENOCIDE AND ITS EXAMINATION UNDER FREEDOM OF EXPRESSION Ceren Sedef Eren Student No: 15908463 A Dissertation Submitted to the Brussels School of International Studies Department of Law at the University of Kent In Partial Fulfilment of the Requirements for the Award of the Degree of Master of Laws (L.L.M.) in Human Rights Law Brussels, 31/7/2016 Word Count: 17.000 Bursiyer ve Programa Ait Bilgi Formu Adı-Soyadı Ceren Sedef EREN Referans No. JM- 235 Sözleşme No. TR2012/0136.08-01/235 Başvuru Yaptığı Sektör Kamu (Kamu-Üniversite-Özel Sektör) Başvuru esnasında Bursiyerin Bağlı Olduğu Anayasa Mahkemesi Kurum Bursiyerin Bağlı Olduğu Kurumun İli ANKARA Başvuru esnasında Bursiyerin Bağlı Olduğu Raportör Yardımcısı Kurumdaki Unvanı Çalıştığı AB Müktesebat Başlığı Yargı ve Temel Haklar Öğrenim Gördüğü Ülke Belçika Şehir Brüksel Yabancı Dil İngilizce Üniversite University of Kent- Brussels School of International Studies Fakülte Hukuk Bölüm İnsan Hakları Hukuku Program Adı İnsan Hakları Hukuku (LLM) Programın Başlangıç/Bitiş Tarihleri (örn. Ekim 19/Eylül/2015-18/Eylül/2016 20…./Eylül 20….) Öğrenim Süresi (ay) 12 Tez/Araştırma Çalışmasının Başlığı Sözde Ermeni Soykırımı İddiası İnkârının Cezalandırılmasının İfade Özgürlüğü Bağlamında Değerlendirilmesi Danışmanının Adı/Soyadı Yutaka ARAI Danışmanının E-posta Adresi [email protected] I Scholar and Programme Information Form Name/Surname Ceren Sedef EREN Reference No. JM -235 Contract No. TR2012/0136.08-01/235 Applied From Public Public Sector/University/Private Sector Institution on the date of application Constitutional Court of Turkey City of the Institution on the date of application ANKARA Title Deputy Rapporteur Related EU Acquis Chapter Judiciary and Fundamental Rights Country of Host Institution Belgium City of Host Institution Brussels Language of the Programme English Name of the Host Institution University of Kent- Brussels School of International Studies Faculty Law Department Human Rights Law Name of the Programme Human Rights Law (LLM) Start/End Dates of the Programme (i.e.September 19/September/2015-18/September/2016 20…./October 20….) Duration of the Programme (Months) 12 Title of the Dissertation/ Research Study Criminalizing the Denial of the So-Called Armenian Genocide and Its Examination Under Freedom of Expression Name of the Advisor Yutaka ARAI E-mail of the Advisor [email protected] II III IV TABLE OF CONTENT LIST OF ABBREVIATIONS .................................................................................................... ii ÖZET ......................................................................................................................................... iii ABSTRACT .............................................................................................................................. iv I. Introduction ............................................................................................................................. 1 II. Genocide Denial Laws in Europe .......................................................................................... 2 a. Federal Republic of Germany ............................................................................................ 7 b. Republic of Austria .......................................................................................................... 13 c. French Republic ................................................................................................................ 14 d. ECtHR’s Case Law on Holocaust Denial ........................................................................ 18 III. Outlawing the Denial of the So-called Armenian Genocide in Europe ............................. 20 a. Hidden Racist Intent ......................................................................................................... 21 b. Danger to Democracy ....................................................................................................... 24 c. Clearly Established Fact ................................................................................................... 26 d. Criminalizing Denial with Discriminative Motive ........................................................... 33 e. Political Repercussions ..................................................................................................... 43 IV. Article 261 (4) of the Switzerland Criminal Code to create Potential Victimization ........ 45 a. Potential Victimization under the Case Law of ECtHR ................................................... 45 b. Article 261 (4) of the Switzerland Criminal Code on the so-called Armenian genocide 49 V. Conclusion ........................................................................................................................... 50 BIBLIOGRAPHY .................................................................................................................... 52 i LIST OF ABBREVIATIONS Commission European Commission of Human Rights ECHR European Convention on Human Rights ECtHR European Court of Human Rights EU European Union FCC French Constitutional Council FD Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law GCC Federal Constitutional Court of Germany HRC United Nations Human Rights Committee NDP National Democratic Party of Germany SCC Spanish Constitutional Court ii ÖZET Avrupa ülkeleri ulusal hukuklarında, nefret söylemiyle savaşma amacı doğrultusunda birkaç ülkede Yahudi soykırımı inkârının cezalandırılmasıyla başlayan ve genelde tüm soykırım ya da insanlığa karşı suçların inkârının cezalandırılmasıyla devam eden yeni bir soykırım ya da insanlığa karşı suç inkârı cezalandırma akımı ortaya çıkmış bulunmaktadır. Bununla birlikte, anılan durumun ceza hukukuna konu edilmesi, Avrupa demokrasilerinin başka bir temel değeri olan ifade özgürlüğünün kapsamında olduğundan bazı sorunları da beraberinde getirmektedir. Bu çalışmanın amacı, sözde Ermeni soykırımı iddiası inkârını cezalandırmanın Avrupa demokrasileri açısından teşkil ettiği tehlikeyi ortaya koymaktır. Bu amaç doğrultusunda, Avrupa İnsan Hakları Mahkemesi’nin de açıkça kanıtlanmış bir gerçek olarak kabul ettiği Yahudi soykırımı inkârının cezalandırılması gerekçesinin, sözde Ermeni soykırımı inkârının cezalandırılması açısından geçerli olamayacağı sonucuna, soykırım inkârını suç olarak kabul eden uygulamalar incelenerek varılmaya çalışılmıştır. Anılan önerme, sözde Ermeni soykırımı inkârını cezalandırmanın, Avrupa’da ifade özgürlüğü kullanımını ciddi şekilde tehlikeye düşüreceği genel sonucuna ulaşmak amacıyla, soykırım inkârını cezalandıran İsviçre Ceza Kanunu’nun sözde Ermeni soykırımı iddiasıyla ilgili olarak uygulandığında potansiyel mağduriyet (Avrupa İnsan Hakları Mahkemesi’nin potansiyel mağdur içtihadı bağlamında) yaratma olasılığına dair tartışmayla da desteklenmiştir. iii ABSTRACT There is a new trend in European domestic legislations to criminalize the denial of genocides and crimes against humanity which started with specifically the criminalization of the denial of the Holocaust in several European countries, and continued with the expansion of criminalization by the inclusion of genocides and/or crimes against humanity in general, in the efforts to fight against hate speech across Europe. However, making speech a subject of the criminal law as an offence brings some problems as it also falls within the area of another fundamental value of European democracies which is the freedom of expression. The purpose of this study is to demonstrate the danger that criminalization of the denial of the so-called Armenian genocide poses to European democracies. In order to achieve that purpose, the analyse of genocide denial laws is made with the inference that the main reasons behind the criminalization of the Holocaust denial in Europe which the European Court of Human Rights also described as a “clearly established fact”, is incapable of justifying the criminalization of the denial of the so-called Armenian genocide. This discussion is followed by the assessment of the possibility of the Switzerland Criminal Code which criminalizes the denial of genocides, to cause potential violence (under the potential victim case law of the European Court of Human Rights) in the case of the denial of the so-called Armenian genocide, to reach the conclusion that criminalizing the denial of the so-called Armenian genocide seriously endangers the enjoyment of freedom of expression in Europe. iv I. Introduction The European Court of Human Rights (ECtHR) released its Perinçek v. Switzerland (Perinçek) decision on 15 October 2015 which it found that there has been a violation of freedom of expression due to the prosecution and punishment of the applicant because of his statements about denying the so-called Armenian genocide1. The Court, apart from its case law about the denial of Holocaust falling out of the protection of freedom of expression, decided that the punishment of the applicant was not necessary in a democratic society in the mentioned case.2 However, the Court has not actually made a detailed assessment about the lawfulness of the interference and decided that the interference with the applicant’s freedom of expression was sufficiently foreseeable, and therefore, “prescribed by law” within the meaning of article 10 (2) of the European Convention on Human Rights (ECHR).3 In its case law about potential victimization, ECtHR examined the quality of the law in question even if it
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