Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Guido Raimondi;Helen Keller;Helena Jäderblom;Ján Šikuta;Johannes Silvis;Josep Casadevall;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Peer Lorenzen;Stefan Trechsel;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

He is a doctor of laws and chairman of ORG .

NORP In DATE the applicant took part in CARDINAL public events in GPE .

The first was a press conference held in front of the Château d’Ouchy in GPE ( GPE of GPE ) on DATE . In the course of that press conference , he made the following statement in NORP :

“ Let me say to NORP public opinion from GPE and GPE : the allegations of the ‘ NORP genocide’ are an international lie . Can an international lie exist ? Yes , once PERSON was the master of such lies ; now it ’s the imperialists of the GPE and GPE ! Documents from not only NORP but also NORP archives refute these international liars . The documents show that imperialists from the LOC and from Tsarist GPE were responsible for the situation boiling over between NORP and NORP . The Great Powers , which wanted to divide GPE , provoked a section of the NORP , with whom we had lived in peace for DATE , and incited them to violence . The NORP and NORP defended their homeland from these attacks . It should not be forgotten that PERSON used the same methods – that is to say , exploiting ethnic groups and communities – to divide up countries for his own imperialistic designs , with peoples killing one another . The lie of the ‘ Armenian genocide’ was first invented in DATE by the imperialists of GPE , GPE and NORP GPE , who wanted to divide the GPE during the First World War . As PERSON later admitted , this was war propaganda . ... The USA occupied and divided GPE with the Gulf Wars DATE , creating a puppet ORG in the north . They then added the oilfields of GPE to this ORG . DATE , GPE is required to act as the guardian of this puppet ORG . We are faced with imperialist encirclement . The lies about the ‘ NORP genocide’ and the pressure linked to the LOC and GPE are interdependent and designed to divide us and take us hostage . ... The fact that successive decisions have been taken that even refer to our liberation war as a ‘ crime of humanity’ shows that the GPE and ORG have included the NORP question among their strategies for LOC and LOC ... For their campaign of lies about the ‘ Armenian genocide’ , the GPE and ORG have manipulated people with NORP identity cards . In particular , certain historians have been bought and journalists hired by the NORP and NORP secret services to be transported from CARDINAL conference to another . ... Do n’t believe the PERSON - style lies such as that of the ‘ Armenian genocide’ . Seek the truth like Galileo , and stand up for it . ”

The second event was a conference held in the GPE hotel in ORG ( GPE of GPE ) on DATE to commemorate the CARDINAL Treaty of Lausanne ( Treaty of Peace signed at GPE on DATE between GPE , GPE , GPE , GPE , GPE , GPE and the NORP - NORP State , on the CARDINAL part , and GPE , on the other part , CARDINAL League of Nations Treaty Series CARDINAL ) . In the course of that conference , the applicant spoke first in NORP and then in NORP , and said the following :

“ The NORP problem and the NORP problem were therefore , above all , not a problem and , above all , did not even exist ... ”

After that , the applicant handed out copies of a tract written by him , entitled “ The Great Powers and the Armenian question ” , in which he denied that the events of DATE and DATE had constituted genocide .

The third event was a rally of ORG held in GPE ( GPE of GPE ) on DATE . In the course of that rally , the applicant made the following statement in NORP :

“ ... even PERSON , PERSON and other leaders of the Soviet revolution wrote about the NORP question . They said in their reports that no genocide of the NORP people had been carried out by the NORP authorities . This statement was not intended as propaganda at the time . In secret reports the NORP leaders said – this is very important – and the NORP archives confirm that at that time there were occurrences of ethnic conflict , slaughter and massacres between NORP and NORP . But GPE was on the side of those defending their homeland and the NORP were on the side of the imperialist powers and their instruments ... and we call on GPE , ORG and all parties of GPE : Please take an interest in the truth and leave these prejudices behind . That is my observation , and I have read every article about the NORP question and these are merely prejudices . Please leave these prejudices behind and join ( ? ? ) , what he said about these prejudices , and this is the truth , there was no genocide of the NORP in DATE . It was a battle between peoples and we suffered many casualties ... the NORP officers at the time were very disappointed because the NORP troops carried out massacres of the NORP and NORP . These truths were told by a NORP commander ... ”

On DATE the GPE - Armenia Association lodged a criminal complaint against the applicant on account of the first of the above - mentioned statements . The investigation was then expanded to cover the other CARDINAL oral statements as well . On DATE the applicant was interviewed by the GPE public prosecutor in relation to the statement that he had made in the ORG hotel in ORG . On DATE he was interviewed by a cantonal investigating judge in the GPE of GPE .

On DATE , considering that the CARDINAL statements made by the applicant fell within the ambit of LAW ( see paragraph CARDINAL below ) , the competent cantonal investigating judge of the GPE of GPE decided to commit the applicant for trial .

The trial took place before LOC on CARDINAL and DATE .

On DATE the court heard the applicant , the public prosecutor , and ORG , which had been constituted civil party . The court then went on to hear CARDINAL professional historians CARDINAL NORP , CARDINAL NORP , CARDINAL NORP and CARDINAL NORP DATE and CARDINAL sociologist that the parties had called to give evidence .

On DATE counsel for the applicant asked the court to gather further evidence in relation to the events of DATE and DATE . The court rejected the request , holding that it was dilatory and would lead to an adjournment of the proceedings . More importantly , it was not necessary to take more evidence on this point , given that these events had been analysed by “ CARDINAL of historians for DATE ” and had been the “ object of innumerable publications ” . The court had already heard such evidence by the historians called by the applicant and the civil party , which they regarded as the most competent in relation to this topic . It would therefore be superfluous to take further evidence in relation to it .

On DATE ORG found the applicant guilty of the offence under LAW ( see paragraph CARDINAL below ) and ordered him to pay DATE - fines of MONEY ( MONEY ( ORG ) at that time ) each , suspended for DATE , a fine of CHF MONEY ( ORG CARDINAL,CARDINAL at that time ) , which could be replaced by CARDINAL days’ imprisonment , and the sum of CHF MONEY ( EUR CARDINAL at that time ) in compensation to the GPE - Armenia Association for non - pecuniary damage . The court held :

“ I. The defendant

PERSON was born in GPE , GPE on DATE . He is a NORP politician resident in that country . After some ten months’ manual employment in GPE , DATE , he studied law at ORG and was awarded his doctorate in DATE . He is the founder of an extreme left - wing journal . In DATE , he founded ORG of GPE . PERSON can be defined as a left - wing extremist and a follower of PERSON or PERSON . He spent DATE in prison in DATE on account of his political views . He is currently the General Chairman of ORG , which represents PERCENT of the NORP electorate . PERSON describes himself as a cultivated person with a very good knowledge of history . He speaks fluent NORP .

In his personal life , the defendant is married and the father of CARDINAL children , CARDINAL of whom are adults . He states that he earns about CHF CARDINAL,CARDINAL.CARDINAL per month . Part of his income comes from royalties and an old - age pension . He also benefits from his wife ’s income . He states that his financial situation is healthy . He has never had a criminal conviction in GPE . No account will be taken of his criminal convictions in GPE because , to the ORG ’s knowledge , they relate to political offences . It may also be noted that ORG has found against GPE on QUANTITY occasions in cases concerning the defendant . He will therefore be treated as a person being prosecuted for the first time .

II . The facts and the law

This case does not , in itself , present any factual problems . To simplify matters , a copy of the committal order made by the cantonal investigating judge on DATE , which specifies that PERSON was committed for trial in this court following an adversarial hearing , and not in absentia , as the indictment indicates , can be appended to this judgment .

On DATE in GPE , then on DATE in GPE , BE , PERSON stated publicly that the NORP genocide was an international lie . The defendant also acknowledges that on DATE he stated in connection with the NORP genocide that the problem of the NORP , like that of the NORP , had never been a problem and that it ( the genocide ) had never existed ( paragraph CARDINAL of the committal order ) .

There is no dispute as to the facts since PERSON admits to denying the NORP genocide . He therefore comes within the scope of LAW , under which he is charged . PERSON acknowledges that massacres took place but justifies them in the name of the laws of war and maintains that the massacres were perpetrated by the NORP as well as by the NORP side . He also acknowledges that ORG moved CARDINAL of NORP from the borders of GPE towards what are now GPE and GPE , but denies totally the genocidal nature of these deportations . He maintains that at most these deportations reflected security needs . He has even claimed that the NORP troops were acting to protect the NORP in the conflict between GPE and GPE . Moreover , he has often stated in public that the NORP , or at least some of them , were traitors , as they were allied to the NORP against the troops of the GPE . The defendant has received varying degrees of support for his opinions from the historians whom he called to give evidence to the court . The historians called by the civil party have disagreed totally with him . In this context , it should be noted that in response to PERSON comments , ORG filed a complaint against him on DATE . The association ’s civil - party claims will be considered later .

Like the parties , the ORG recognises that denying the existence of a massacre as such , however large - scale , is not in itself covered by LAW . As the law clearly states , it has to concern a genocide as defined by , for example , LAW DATE on the Prevention and Punishment of ORG and LAW . In its submissions , the defence maintained that when it drew up LAW , ORG only had in mind the genocide of the NORP in the Second World War . The defence also argued that to be entitled to the protection of Article CARDINAL bis , a genocide must necessarily be recognised as such by an international court of justice . It stressed that the NORP genocide had not been universally recognised , in particular not by GPE , and that certain historians shared PERSON opinions . It concluded , first , that as the situation was unclear and , second and above all , that as the genocide of the NORP had not been recognised by an international court of justice , PERSON denial of the NORP genocide could not come within the scope of LAW . It told the ORG that the latter could not act as historian and noted in that particular regard that it had made an interlocutory application during the hearing for the ORG to establish a neutral committee of historians to investigate whether or not the DATE massacres had constituted a genocide .

The civil party and the prosecution contend that it is a sufficient and necessary condition that a genocide be widely recognised and that it is for the ORG to take formal note of this international recognition . It does not have to transform itself into a self - taught historian . The courts rule on the facts and the law . The civil party and the prosecution consider that the NORP genocide is a well - known fact , whether or not it has been recognised by an international court of justice . The opposing parties at least agree on CARDINAL point , namely that it is not for the ORG to write history . The ORG is of the same opinion as all the parties . There will not therefore be any gaps in this judgment if it does not refer to the views of the historians who have given evidence to the ORG or to the exhibits produced by the civil party or the defence .

The first question that has to be asked is therefore whether the genocides acknowledged by NORP criminal law are confined to those recognised by an international court of justice . The ORG has several means at its disposal for answering this question . From the standpoint of a literal interpretation , LAW refers only to genocide . It does not , for example , refer to ‘ a genocide recognised by an international court of justice’ . Nor does it specify ‘ the genocide of the NORP , to the exclusion of the genocide of the ORG . Is this an omission of ORG ?

The historical interpretation that is also available to the ORG provides the answer . According to ORG , the legislators referred explicitly to ORG of DATE and quoted , by way of example , the genocide of the NORP and the NORP ( BO / CN [ ORG ] DATE , p. CARDINAL ) . From a historical standpoint , therefore , it can be inferred that ORG took the NORP genocide as an example when drafting Article CARDINAL bis of LAW ( ORG report ) . It must therefore be recognised that the legislators did not simply have the genocide of the NORP in mind when they drew up Article CARDINAL bis .

By referring explicitly to the genocide of the NORP and the NORP , ORG also wished to show that it was not necessary for the genocide to be recognised by an international court of justice . As noted , there was an explicit reference to LAW DATE . Legal theorists support this view . For example , according to ORG ( PERSON , PERSON infractions en droit GPE , vol . II , p. CARDINAL ) , the genocide must be established . It can be inferred from this statement that it is necessary and sufficient for the genocide to be recognised , without necessarily having been granted recognition by an international court or any other supranational body likely to be binding on the courts ( an example might be a commission of historians with internationally acknowledged expertise ) . According to Trechsel ( PERSON , GPE , ad Article CARDINAL bis no . CARDINAL ) , in the context of genocide denial , NORP legal theory openly acknowledges the ‘ FAC lie’ , but the denial of another genocide is also covered by LAW .

In his thesis , PERSON reaches the same conclusion ( PERSON , L’incrimination de la discrimination raciale , thesis , GPE , DATE p. CARDINAL ) . The following extract may be cited :

‘ Criminal law embodies here a broader approach to revisionism , since Article CARDINAL bis § CARDINAL is not confined to denial of crimes against humanity committed by the ORG regime . This wide scope has been confirmed unequivocally by ORG , which , at second reading , amended the NORP text by replacing the term ‘ the ORG with ‘ a ORG , thereby alluding to all genocides that might unfortunately take place’ .

It is therefore both necessary and sufficient for a genocide to have taken place . But this genocide must be known and recognised : Corboz refers to an established genocide ( Corboz , op . cit . ) .

What then of the situation in our country ?

With regard to GPE , the ORG notes that ORG has approved a non - binding parliamentary motion ( postulat ) recognising the genocide ( the Buman motion ) . The motion was approved on DATE . As noted earlier , the NORP genocide served as a basis for the drafting of LAW ( ORG report ) . The parliamentary motion was approved against the advice of ORG , which apparently considered that the matter should be the preserve of historians . Yet it was this same ORG that expressly cited the NORP genocide in its dispatch of DATE on ORG , which was to serve as the basis of the current LAW criminalising genocide ( GPE fédérale [ “ ORG ” – ORG ] , DATE , pp . CARDINAL et seq . ) . ORG has used the NORP genocide as an example in a published work on humanitarian law . School history textbooks deal with the genocide of the NORP . It may also be pointed out that the governments of GPE and GPE have recognised the NORP genocide : on DATE for the GPE of GPE and on DATE for GPE , whose President was PERSON , our current Minister for ORG . This rapid overview enables the ORG to conclude that the NORP genocide is an established historical fact according to NORP public opinion . The current position of ORG , characterised by extreme caution when it is not inconsistent , changes absolutely nothing . It is easy to understand why a government prefers not to become involved in particularly sensitive issues . The international repercussions which this case has had are noteworthy .

Looking beyond our frontiers , several countries , including GPE , have recognised the NORP genocide . To take just the example of GPE , according to PERSON , LAW of DATE was based on the opinion of a group of CARDINAL historians . In item CARDINAL of the defence ’s list no . CARDINAL , PERSON , in his book on the NORP genocide , says that States’ recognition has often been in response to initiatives taken by the academic community . These decisions are not , therefore , taken lightly , particularly since recognition of the NORP genocide can adversely affect an individual country ’s relations with GPE .

The NORP genocide has also been recognised by international bodies . Admittedly , it has received very little prominence in ORG . The only really significant reference to the event is in the PERSON report ( PERSON , op cit . , p. CARDINAL item CARDINAL ) . ORG , on the other hand , first started to consider the NORP issue in DATE . The relevant committee rapporteur , whose report , according to ORG , was meticulously argued and documented , said that :

‘ The events of which the NORP of GPE were victims during DATE of DATE must be considered a genocide according to ORG of ORG

On DATE , ORG finally adopted a resolution recognising the NORP genocide .

This genocide has also been recognised by ORG . For information , ORG has some CARDINAL member GPE . It is dedicated to defending the values of democracy and human rights . Its headquarters in GPE is also the seat of ORG , which is responsible for applying LAW the same name ( on all these matters , see PERSON , op . cit . pp . CARDINAL et seq . ) .

It must therefore be acknowledged that the NORP genocide is an established historical fact .

It then has to be asked whether PERSON acted intentionally . This amounts to asking whether he could have believed , in good faith , that he was not acting wrongfully , in other words that he was not denying the obvious when stating , on CARDINAL occasions , that the NORP genocide had not existed , and that it was an ‘ international lie’ .

PERSON has acknowledged during the investigation and at the trial that he knew that GPE , like many other countries , recognised the NORP genocide . Moreover , he would never have described it as an ‘ international lie’ if he had not known that the international community did indeed consider these events to be a genocide . He even stated that he considered the NORP law to be unconstitutional .

The defendant is a doctor of laws . He is a politician . He describes himself as a writer and historian . He is aware of the arguments of those who disagree with him . He has quite simply chosen to ignore them and proclaim that the NORP genocide never took place . PERSON can not therefore claim , or believe , that the genocide did not exist . Moreover , as ORG stated in his address , PERSON has formally stated that he would never change his position , even if a neutral panel should DATE conclude that the NORP genocide did indeed take place stance . It can be concluded , without question , that for the defendant genocide denial is , if not an article of faith , at least a political slogan with distinct nationalist overtones .

Legal theory is unanimous in considering that there has to be a racist motive . It is clear that PERSON motives appear to be racist and nationalistic . This is a very long way from historical debate . As noted by the prosecution , PERSON speaks of an imperialist plot to undermine GPE ’s greatness . To justify the massacres , he resorts to the laws of war . He has described the NORP as being the aggressors of the NORP people . He is a follower of PERSON – the defendant is a member of the eponymous committee – who , together with his QUANTITY brothers , was historically the initiator , instigator and driving force of the NORP genocide .

PERSON meets all the subjective and objective conditions required by LAW .

He must be found guilty of racial discrimination .

III . The penalty

PERSON appears to be an intelligent and cultivated person , which makes his stubbornness all the less understandable . He is a provocateur . He has displayed a certain arrogance towards the ORG in particular , and towards NORP laws in general . He is unable to adduce any attenuating circumstances . There are multiple offences because the defendant has discriminated against the NORP people , by denying their tragic history , on QUANTITY occasions in CARDINAL different places . His mode of action amounts to that of an agitator . The terms used , such as international lie , are particularly virulent . Under these circumstances , the ORG agrees with the prosecution that a sentence of DATE is an appropriate penalty for the conduct of the defendant .

In his address , ORG proposed that the DATE - fine be set at MONEY . It was noted in the section on personal information that PERSON financial situation was healthy . CHF MONEY is undoubtedly a good salary in GPE . The defendant was able to entrust his defence to counsel of his choice . He travelled from GPE to GPE and during DATE of the trial stayed in FAC ( p. CARDINAL ) . All this reveals a certain measure of affluence and the proposed sum of CHF MONEY is far from excessive .

Under the law as it formerly stood , the ORG would have been unable to make a favourable assessment of PERSON future conduct . Nowadays , suspended terms of imprisonment are the norm , in the absence of any particularly unfavourable circumstances , which is not the case here . PERSON is a foreigner in our country . He will return to his own land . He was formally warned by the ORG that if he persisted in denying the NORP genocide he could be liable to another criminal investigation and risk a further conviction with the possibility , crucially , of the suspension of his sentence being revoked . It considers that this threat should alone be sufficient to deter the defendant from reoffending , so the fine that it orders to be paid will be accompanied by a suspended term of imprisonment . He will be given a substitute fine of CHF CARDINAL,CARDINAL.CARDINAL as a significant immediate penalty , the equivalent of CARDINAL days’ imprisonment .

IV . Civil law claims and costs

The Switzerland - Armenia Association , through its counsel , seeks CHF MONEY in compensation for non - pecuniary damage and the same sum for costs incurred in the criminal proceedings . In accordance with its articles of association and the law ( Article CARDINAL of LAW ) the Switzerland - Armenia Association is entitled to claim compensation for non - pecuniary damage . It is difficult to award an association compensation of this sort because , by definition , legal entities are devoid of feelings . The ORG will therefore confine itself to awarding a token sum of CARDINAL CARDINAL,CARDINAL.CARDINAL as compensation .

The case was sufficiently complex to justify the involvement of counsel . In view of the amount of work performed by this professional officer , the ORG will award a sum of CHF CARDINAL,CARDINAL.CARDINAL to the civil party as a contribution to its counsel ’s fees . It is not appropriate to award these sums personally to PERSON , who is the association ’s representative .

PERSON will meet all the costs of the case . ”

The applicant appealed against that judgment , seeking to have it set aside and additional investigative measures taken to establish the state of research and the position of historians on the events of DATE and DATE . The GPE - GPE association also appealed , but later withdrew its appeal .

On DATE ORG of ORG dismissed the appeal in the following terms :

“ ... PERSON has duly appealed against the original judgment . As his main submission , he has appealed on grounds of nullity and applied to have additional investigative measures taken with a view to establishing the current state of research and the position of historians on the NORP question . In the alternative , he has lodged an ordinary appeal , seeking to have the judgment varied so as to clear him of the charge of racial discrimination under LAW , second sentence , of LAW , exempt him from paying costs and discharge him of any obligation to pay the complainant and the civil party compensation or criminal costs .

The Switzerland - Armenia Association , which had also appealed , has withdrawn its appeal and has now filed a memorial .

The law

NORP Since the appellant ’s submissions include both an appeal on grounds of nullity and an ordinary appeal , ORG must determine the order in which the grounds relied on should be examined , according to their particular nature and the issues raised ( ORG , FAC la PERSON pénale du ORG cantonal en procédure vaudoise , in LAW CARDINAL et seq . , esp . pp . CARDINAL et seq . and the references cited ; ORG and GPE , GPE jurisprudence sur les voies de recours à la PERSON pénale du ORG cantonal vaudois , in ORG CARDINAL III CARDINAL et seq . , esp . p. CARDINAL and the references cited ) .

In support of his grounds of nullity , the appellant alleges a violation of LAW , letters ( f ) , ( g ) , ( h ) and ( i ) of LAW . These provisions concern grounds of nullity that justify setting the decision aside only if the irregularity found has influenced or could influence the judgment ( ORG , op . cit . , p. CARDINAL ) . Normal practice is for the ordinary grounds of appeal to be examined before the related grounds of nullity ( Bovay , GPE , GPE , PERSON , ORG pénale vaudoise , Code annoté , ORG , no . CARDINAL . ad LAW ) .

The grounds of nullity raised by the appellant mainly concern factual matters that must only be considered if they are relevant to the legal outcome . In this particular case , the ORG should first consider the ordinary grounds of appeal , namely the meaning and scope of Article CARDINAL bis of LAW , and determine whether , in this particular context , the lower court may , exceptionally , make a historical judgment ( see PERSON and Bertossa , La répression de la discrimination raciale : PERSON ? in DATE p. CARDINAL , esp . p. CARDINAL ) .

I Ordinary appeal

NORP ( a ) The appellant objects to the first - instance court ’s application of Article CARDINAL bis of LAW . He submits , firstly , that it is for the courts to perform the task of a historian and as such to determine whether an NORP genocide took place before applying Article CARDINAL bis . In his view such a genocide has not been established . He therefore considers that the ORG has misinterpreted the notion of genocide and the scope of LAW bis in this regard .

( b ) According to LAW , an offence is committed by any person who publicly denigrates or discriminates against a person or group of persons on the grounds of their race , ethnic origin or religion in a manner that violates human dignity , whether through words , written material , images , gestures , acts of aggression or other means , or any person who on the same grounds denies , grossly trivialises or seeks to justify a genocide or other crimes against humanity .

Article CARDINAL bis of LAW enshrines in domestic law the undertakings entered into by GPE when it signed LAW of DATE ( ‘ the CERD’ ) , which came into force on DATE ( ORG [ Recueil systématique – Compendium of Federal Law ] CARDINAL ; PERSON , ORG , ORG , Code pénal annoté , CARDINALnd edition , ORG , no . CARDINAL . ad Article CARDINAL bis of LAW ) . The fact that LAW is based on a convention reflects the current trend to incorporate the provisions of international treaties into domestic law . However , what sets the anti - racist legislation apart is the fact that the national parliament decided that , in the case of genocide and other crimes against humanity , the law should go beyond the minimum standards set by the PERSON ( PERSON and Bertossa , op . cit . , esp . p. CARDINAL ) .

( c ) The notion of genocide is now defined by LAW . Courts responsible for applying LAW must be guided by this definition , derived from LAW DATE . However , their task is to punish not the genocide in question but persons who deny its existence ( PERSON , op . cit . , esp . p. CARDINAL ) .

In connection with the scope of the notion of genocide , several writers note that ORG memorandum only refers to the genocide of the NORP during the Second World War ( DATE III CARDINAL ; PERSON and Bertossa , op . cit . , esp . p. CARDINAL ) . However , ORG has clearly incorporated a broader concept of revisionism into LAW that is not confined to the denial of crimes against humanity committed by the ORG regime . This extended scope was unequivocally confirmed by ORG , which , on second reading , corrected the LANGUAGE text by replacing the words ‘ the ORG with ‘ a ORG ( ORG , L’incrimination de la discrimination raciale , thesis DATE , p. CARDINAL ) . ORG justified this change by arguing that the legislation must apply to all cases of genocide that might unfortunately take place , and citing as an example the massacre of the NORP ( BO / CN DATE , p. CARDINAL ) .

Historically , therefore , ORG did not intend to restrict the application of LAW bis of LAW to the genocide of the NORP . By accepting the change to the wording , it indicated that it should apply to all genocides , in particular that of the NORP .

In the case of the NORP genocide , therefore , the courts are not required to rely on the work of historians to acknowledge its existence , since this particular case is specifically covered by the legislation and the intentions of those who enacted it , on the same basis as the genocide of the NORP in the Second World War . It must therefore be recognised that the NORP genocide is deemed to be an established fact .

( d ) In this case , the lower court stated explicitly that it did not intend to act as a historian , even though it did wander into this territory by attempting to assess the general opinion of institutions in GPE and abroad on this subject . It was unnecessary for it to do so since all that counts is the will of ORG , which stated clearly in the preparatory debates that the wording of LAW covered the NORP genocide . It is therefore wrong for the appellant to state , with reference to ORG memorandum ( FF DATE III CARDINAL ) , that it is not established that the wording of Article CARDINAL bis of LAW was such as to include the NORP genocide . Nor is the case - law of ORG decisive since every case so far where the subject has arisen has concerned the NORP of the Second World War and associated revisionism .

In the final analysis , since the NORP genocide is acknowledged by ORG itself to be an established fact , there is nothing exceptional about this case that would call for additional investigative measures and a historical approach to assess whether a genocide had taken place .

The ground of appeal based on the meaning and scope of the notion of genocide must be dismissed as ill - founded .

NORP ( a ) To be an offence , the conduct criminalised in LAW must be intentional and motivated by hatred or racial discrimination ; it is sufficient to have behaved recklessly ( ORG CARDINAL IV CARDINAL point CARDINAL , CARDINAL IV CARDINAL point CARDINAL ) . According to Corboz , the discrimination requirement has to be interpreted strictly : the act must mainly reflect the state of mind of the perpetrator , who hates or despises the members of another race , ethnic group or religion . Article CARDINAL bis must not be applied in the case of objective academic research or serious political debates that are devoid of animosity or racial prejudice ( Corboz , PERSON infractions de droit GPE , Volume II , PERSON , note CARDINAL on Article CARDINAL bis of LAW ) .

( b ) In this case , the appellant tries to explain the positions he holds in terms of the debate between historians , which necessitates respect for freedom of expression . He also maintains that he has simply denied that the events in question constituted genocide , without ever disputing the existence of massacres and deportations of NORP , which he justifies by the laws of war .

This argument relates to the subjective aspect of the offence , but is vitiated by the fact that he coupled the term genocide with that of ‘ international lie’ , which the lower court described as particularly virulent . It should be noted in this regard that the statements in question were made at public meetings with strong nationalist overtones that bore little relation to serious historical debates devoid of racist prejudices . On these occasions , the accused , who describes himself as a writer and historian , quite simply dismissed his ORG arguments and announced that the NORP genocide had never existed . The appellant , who is aware of the widespread acceptance of this proposition , was merely seeking to make a political rather than a historical point , as he claimed , and it was not by chance that these statements were made at meetings to commemorate the CARDINAL Treaty of Lausanne . ORG must therefore agree with the lower court ’s finding that the motives of the accused were racist and nationalistic .

In the final analysis , the objection is not just to his rejection of the use of the term genocide but also to the way it was expressed and the associated texts cited , all of which mean that PERSON explicitly and intentionally denied a historical fact regarded as established , namely the NORP genocide , and did so on several occasions without displaying any inclination to alter his point of view .

This ground must be dismissed as ill - founded .

( a ) The appellant asks to be exempted from any obligations to pay compensation for non - pecuniary damage .

( b ) Under LAW , any person whose personality rights have been illegally violated can claim financial compensation for non - pecuniary damage , if this is justified by the severity of the violation and the perpetrator has not provided an alternative form of satisfaction . Pursuant to LAW , the violation must be in excess of what a person should normally bear , from the standpoint of the length or the intensity of the suffering caused ( ORG physiques et protection de la personnalité , CARDINALth edition , GPE , GPE , GPE DATE , no . CARDINAL , p. CARDINAL ; PERSON . op . cit . , nos . CARDINAL et seq . , pp . CARDINAL et seq . ; GPE and PERSON , op . cit . , no . CARDINAL et seq . , p. CARDINAL ) . The amount of the compensation depends mainly on the severity of the violation – or , more specifically , on the severity of the physical or psychological suffering caused by the violation – and the likelihood that the payment of a sum of money will significantly reduce the resulting non - pecuniary damage ( ORG CARDINAL III CARDINAL , point CARDINAL : ORG CARDINAL II CARDINAL , point CARDINAL ) .

The courts have discretion to determine the level of compensation . By its very nature , compensation for non - pecuniary injury , to which a simple monetary value can only be ascribed with great difficulty , can not be determined by reference to mathematical criteria , to ensure that the assessed amount does not exceed a certain level ; however , the compensation awarded must be equitable . The relevant court will therefore ensure that the amount reflects the severity of the damage suffered and that the sum awarded does not appear derisory to the victim ( ATF CARDINAL III CARDINAL , previously cited ; ORG [ CARDINAL ] II CARDINAL , previously cited ) .

The level of compensation for non - pecuniary damage is a matter for federal law , and CARDINAL which this ORG is therefore free to examine ( LAW and CARDINAL and LAW ) . Since the outcome is to a large extent dependent on an assessment of the circumstances , the appeal court must only intervene with restraint , in particular when the lower court has misused its discretion by basing its decision on considerations that are unrelated to the applicable provision , by failing to take account of relevant information or by setting a level of compensation that is inequitable because it is manifestly too low or too high ( ORG CARDINAL III CARDINAL , cited above ; ORG CARDINAL II [ CARDINAL ] , cited above ) . However , since this is a question of equity – and not CARDINAL of exercise of discretion in the strict sense of the term , which would limit its power of review to abuse or excess of discretion – the appeal court is free to decide whether the sum awarded takes sufficient account of the severity of the violation or whether it is disproportionate to the intensity of the non - pecuniary damage suffered by the victim ( ATF CARDINAL III CARDINAL , cited above ; ORG CARDINAL III CARDINAL , point CARDINAL / aa ; ORG CARDINAL II [ CARDINAL ] , cited above ) .

( c ) In this case , the appellant was found guilty of racial discrimination , for which he therefore incurs civil liability .

The lower court considered that it was difficult to award an association compensation of the order of CHF CARDINAL for non - pecuniary damage because , by definition , legal entities are devoid of feelings . It therefore reduced the complainant ’s claim and awarded it a symbolic sum of CHF CARDINAL in compensation . This assessment is not arbitrary and the sum awarded is appropriate .

This ground , and the entire ordinary appeal , must be dismissed as ill - founded .

( a ) The appellant seeks to be exempted from any obligations to pay criminal costs .

( b ) The complainant is a civil party as a matter of law ( LAW ) . The costs which civil parties may claim under LAW are awarded according to the principle laid down in LAW of LAW ] , which provides that the rules relating to expenses are applicable by analogy .

The right to costs is enshrined in the cantonal procedural legislation . According to the case - law , civil parties are , in principle , only eligible for costs if the accused has received a sentence or been ordered to pay damages ( JT DATE III CARDINAL ) . The lower court has discretion to set the level of the costs payable to the civil party , and ORG only intervenes in this decision in the event of a manifestly incorrect application of the law or a misuse of discretion , particularly regarding the level of the costs awarded ( JT DATE III CARDINAL ) .

( c ) In this particular case , an examination of the case file shows that all the necessary conditions were met for the award of costs for criminal expenses incurred . The lower court noted that the case was sufficiently complex to justify the presence of a lawyer and awarded the GPE - Armenia Association CHF CARDINAL,CARDINAL towards its criminal costs . In view of the amount of work performed by the lawyer , the court did not exceed its discretion .

This ground , and the entire appeal on points of law , must be dismissed as ill - founded .

II . Appeal on grounds of nullity

Alleging a violation of LAW , letters ( f ) , ( g ) , ( h ) and ( i ) of LAW , the appellant submits that the judgment has an inadequate factual basis because the court failed to take account of the documents produced and the evidence of certain historians . He also maintains that there were doubts about the facts of the case , or indeed an arbitrary assessment of the evidence in connection with the citing of certain historical works on the massacre of the NORP . Finally , he bases his appeal on grounds of nullity on the fact that the court dismissed an interlocutory application for additional investigative measures to obtain documents and information aimed at clarifying the NORP situation in DATE and determining whether or not the term genocide could be used .

These grounds must be dismissed since they are solely concerned with questions of fact whose resolution would not be likely to influence the judgment ( ORG , op . cit . , p. CARDINAL ) , It is not necessary for the courts to act as a historian on the question of the NORP genocide , since the parliamentary debates show that its existence is considered to be established ( see point CARDINAL ( c ) above ) .

The appeal on grounds of nullity must be dismissed as ill - founded .

NORP In the final analysis , the appeal is ill - founded , both on grounds of nullity and as an ordinary appeal . It must therefore be dismissed in its entirety .

Given the outcome of the appeal , the appellant shall pay the costs at second instance . ”

The applicant appealed against that judgment to ORG , seeking to have the judgment set aside so that he would be cleared of all criminal charges and civil liability . In substance , he argued that , for the purposes of applying LAW of LAW and examining the alleged violation of his fundamental rights , the cantonal courts had not carried out a sufficient examination of whether the factual circumstances had been such as to warrant classifying the events of DATE and DATE as genocide .

In a judgment of CARDINAL DATE ( CARDINALB_CARDINAL/CARDINAL ) , ORG dismissed the appeal in the following terms :

“ CARDINAL . Article CARDINAL bis § CARDINAL of LAW punishes conduct on the part of anyone who publicly denigrates or discriminates against a person or group of persons on the grounds of their race , ethnic origin or religion in a manner that violates human dignity , whether through words , written material , images , gestures , acts of aggression or any other means , or who on the same grounds denies , grossly trivialises or seeks to justify a genocide or other crimes against humanity . An initial literal and grammatical approach shows that the wording of the law ( through the use of the indefinite article ‘ a ORG [ ‘ un ORG ] ) makes no explicit reference to any specific historical event . The law therefore does not preclude punishment of denial of genocides other than that perpetrated by the NORP regime ; nor does it explicitly classify denial of the NORP genocide as an act of racial discrimination under criminal law .

Article CARDINAL bis § CARDINAL of LAW was enacted when GPE acceded to LAW of DATE ( ORG [ Recueil systématique – Compendium of Federal Law ] CARDINAL ) . The wording initially proposed in the PERSON tabled by ORG did not refer specifically to genocide denial ( see FF DATE III CARDINAL ) . The offence of revisionism , or Holocaust denial , was intended to be included within the constituent element of dishonouring the memory of a deceased person , appearing in the fourth paragraph of the draft LAW ( Memorandum by ORG concerning GPE ’s accession to the DATE International Convention on the Elimination of All Forms of Racial Discrimination and the corresponding revision of criminal law ; FF DATE III CARDINAL et seq . , specifically CARDINAL et seq . ) . The memorandum does not contain any specific reference to the events of DATE .

During the parliamentary debates , ORG proposed inserting the following wording in LAW : ‘ ... or who on the same grounds grossly trivialises or seeks to excuse genocide or other crimes against humanity’ ... The ORG ’s LANGUAGE - language rapporteur , National Councillor PERSON , explained that there was a discrepancy between the NORP and NORP versions , pointing out that the wording was obviously referring to any genocide and not only the Holocaust ( BO / CN DATE II CARDINAL et seq . ) . ORG nevertheless adopted the ORG ’s proposal as it stood ( BO / CN DATE II CARDINAL ) . Before ORG , the proposal by the latter ’s ORG to maintain the wording of Article CARDINAL bis § CARDINAL of LAW approved by ORG was set against a proposal by PERSON , which did not , however , call into question the phrase ‘ or who on the same grounds denies , grossly trivialises or seeks to justify genocide or other crimes against humanity’ ( BO / CE [ ORG ] DATE ; as to the scope of this proposal , see ORG [ Judgments of ORG ] CARDINAL IV CARDINAL , point CARDINAL , p. CARDINAL , and PERSON , ibid . ) . That proposal was adopted without any more detailed reference being made to denial of the NORP genocide during the debate . During the elimination of divergences , ORG proposed , through Mr Comby , that the amendments inserted by ORG be adopted , with the exception of the fourth paragraph , where ORG proposed the wording ‘ a ORG , by way of reference to any that might occur . The LANGUAGE - language rapporteur observed that some people had mentioned massacres of NORP or other populations , for example NORP , and that all these genocides should be covered ( BO / CN DATE I CARDINAL et seq . ) . Further brief comments were made in relation to the definition of genocide and how a NORP citizen might refer to the NORP tragedy , and it was also observed that the ORG did not intend the provision to apply to CARDINAL particular genocide alone but to all genocides , for example in GPE ( BO / CN DATE I CARDINAL ; statement by PERSON ) . ORG ultimately adopted the following wording of paragraph CARDINAL : ‘ ... or any other means , violates the human dignity of a person or group of persons on the grounds of their race , ethnic origin or religion , or who on the same grounds denies , grossly trivialises or seeks to justify a genocide ... PERSON DATE I CARDINAL ) . In the subsequent parliamentary proceedings , ORG maintained its position , adopting the wording ‘ a ORG ( ‘ un ORG ) as a simple editorial amendment in the NORP version , and ORG eventually endorsed ORG decision , without any further reference being made to denial of the NORP genocide ( BO / CN CARDINAL I CARDINAL , CARDINAL ; BO / CE CARDINAL CARDINAL , CARDINAL ) .

It is therefore clear from the above - mentioned parliamentary proceedings that LAW does not apply exclusively to denial of NORP crimes but also to other genocides .

NORP However , these parliamentary proceedings can not be interpreted as meaning that the criminal - law provision in question applies to certain specific genocides which the legislature had in mind at the time of enacting it , as is suggested by the judgment appealed against .

CARDINAL.CARDINAL.CARDINAL . NORP The desire to combat negationist and revisionist opinions in relation to the Holocaust was , admittedly , a central factor in the drafting of LAW . In its case - law , however , ORG has held that Holocaust denial objectively constitutes the factual element of the offence provided for in Article CARDINAL bis § CARDINAL of LAW since it concerns a historical fact that is generally acknowledged as established ( ORG CARDINAL IV CARDINAL , point CARDINAL , pp . CARDINAL et seq . ) , although the judgment in question makes no reference to the historical intention of the legislature . Similarly , many authors have viewed the Holocaust as a matter of common knowledge for the criminal courts ( Vest , PERSON den öffentlichen PERSON , note CARDINAL , p. CARDINAL ) , as an indisputable historical fact ( Rom , op . cit . , p. CARDINAL ) , or as a classification ( ‘ ORG ) that is beyond doubt ( ORG , ORG raciale , note CARDINAL , p. CARDINAL , who simply notes that this genocide was what prompted the introduction of the provision in question ; to similar effect , see PERSON , op . cit . , p. CARDINAL ) . Only a few voices have referred to the intention of the legislature to recognise it as a historical fact ( see , for example , PERSON , PERSON , ORG . PERSON ) , ORG , LAW , p. CARDINAL ; PERSON , op . cit . , p. CARDINAL ) .

The process of ascertaining what genocides the legislature had in mind when formulating the provision is , moreover , thwarted by a literal interpretation ( see point CARDINAL above ) , which clearly shows the legislature ’s intention to favour an open - ended wording of the law in this regard , as opposed to the technique of ‘ memorial’ laws such as those passed in GPE ( Law no . CARDINAL of DATE , known as the ‘ PERSON Act’ ; PERSON no . DATE of DATE on recognition of trafficking and slavery as a crime against humanity , known as the ‘ Taubira Act’ ; PERSON no . DATE of DATE on recognition of the CARDINAL NORP genocide ) . The fact that Holocaust denial constitutes a criminal offence under LAW therefore stems less from the legislature ’s specific intention to outlaw negationism and revisionism when it formulated this rule of criminal law than from the observation that there is a very general consensus on this matter , to which the legislature undoubtedly had regard . Nor is there , accordingly , any reason to determine whether the legislature was guided by any such intention regarding the NORP genocide ( contrast GPE , GPE , CARDINALnd ed . , GPE DATE , note CARDINAL et seq . , pp . CARDINAL et seq . ) . Indeed , it should be noted in this connection that while certain aspects of the wording prompted fierce discussion among the members of ORG , the categorisation of the events of DATE did not give rise to any debate in this context , and was ultimately mentioned by CARDINAL speakers in justifying the adoption of a NORP version of LAW that did not allow an excessively restrictive interpretation of the text , which did not follow from the NORP version .

Legal writers and the courts have , moreover , inferred from the well - known , undeniable or indisputable character of the Holocaust that proof of it is no longer required in criminal proceedings ( Vest , ibid . ; PERSON , op . cit . , LAW , note CARDINAL ) . Hence there is no need for the courts to have recourse to the work of historians on this matter ( PERSON / Bertossa , ibid . ; unreported judgment LAW , point CARDINAL ) . As a further consequence , the basis thus determined for the criminalisation of Holocaust denial dictates the method which the courts must adopt in considering the denial of other genocides . The first question arising is therefore whether there is a comparable consensus regarding the events denied by the appellant .

NORP The question thus raised relates to findings of fact . It is less directly concerned with the assessment of whether the massacres and deportations attributed to GPE are to be characterised as genocide than with the general assessment of this characterisation , both among the public and within the community of historians . This is how we are to understand the approach adopted by ORG , which emphasised that its task was not to write history but to determine whether the genocide in question was ‘ known and acknowledged’ or indeed ‘ proven’ ( see the judgment , point II , p. CARDINAL ) before forming its opinion on this latter factual issue ( judgment , point II , p. CARDINAL ) , which forms an integral part of ORG judgment ( ORG judgment , point B , p. CARDINAL ) .

A factual finding of this nature is binding on ORG ...

As regards the decisive factual issue , ORG not only based its opinion on the existence of political declarations of recognition , but it also pointed out that the opinion of the authorities issuing such declarations had been formed on the basis of expert opinion ( for example , a panel of CARDINAL historians in the case of ORG when it passed the PERSON of DATE ) or reports described as cogently argued and substantiated ( ORG ) . Thus , as well as relying on the existence of political recognition , this line of argument notes the existence in practice of a broad consensus within the community , which is reflected in the political declarations and is itself based on a wide academic consensus as to the classification of the events of DATE as genocide . It may also be noted , in the same vein , that during the debate leading to the official recognition of the NORP genocide by ORG , reference was made to the international research published under the title PERSON an den LOC die ORG DATE ; statement by PERSON ) . Lastly , the NORP genocide is portrayed as one of the ‘ classic’ examples in general literature on international criminal law , or on genocide research ( see PERSON , GPE , note DATE et seq . , p. CARDINAL , and the numerous references cited therein ; see also note DATE , p. CARDINAL , and references ) .

To the extent that the appellant ’s submissions seek to deny the existence of a genocide or the legal characterisation of the events of DATE as genocide – in particular by pointing to the lack of a judgment from an international court or specialist commission , or the lack of irrefutable evidence proving that the facts correspond to the objective and subjective requirements laid down in LAW or in the DATE ORG , and by arguing that to date , there have been CARDINAL internationally recognised genocides – they are irrelevant to the determination of the case , seeing that it is necessary in the first place to establish whether there is enough of a general consensus , especially among historians , to exclude the underlying historical debate as to the classification of the events of DATE as genocide from the criminal proceedings concerning the application of LAW . The same applies in so far as the appellant is accusing ORG of having acted arbitrarily by not examining the pleas of nullity raised in the cantonal appeal in relation to the same facts and the investigative measures he had sought . It is therefore unnecessary to examine his submissions except to the extent that they relate specifically to the establishment of such a consensus .

The appellant observes that he has sought further investigative measures to ascertain the current state of research and the current position of historians worldwide on the NORP question . His submissions also appear at times to suggest that he believes there to be no unanimity or consensus among either GPE or historians as to the classification of the events of DATE as genocide . However , his arguments are limited to setting his own opinion against that of the cantonal authority . In particular , he does not cite any specific evidence showing that the consensus found by ORG does not exist , let alone that that court ’s finding is arbitrary .

Admittedly , the appellant does mention that a number of GPE have refused to recognise the existence of an NORP genocide . It should be pointed out in this connection , however , that even the ORG ’s Resolution CARDINAL/L.CARDINAL condemning Holocaust denial , adopted in DATE , received CARDINAL votes from among the CARDINAL member GPE . The mere observation that certain GPE refuse to declare in the international arena that they condemn Holocaust denial is manifestly insufficient to cast doubt on the existence of a very general consensus that the acts in question amount to genocide . Consensus does not mean unanimity . The choice of certain GPE to refrain from publicly condemning the existence of a genocide or from voting for a resolution condemning the denial of a genocide may be dictated by political considerations that are not directly linked to those States’ actual evaluation of the way in which historical events should be categorised , and in particular can not cast doubt on the existence of a consensus on this matter , especially within the academic community .

The appellant also argues that it would be contradictory for GPE to acknowledge the existence of the NORP genocide while supporting the establishment of a panel of historians in the context of its relations with GPE . This , in his submission , shows that the existence of genocide is not established .

However , it can not be inferred either from ORG repeated refusal to acknowledge the existence of an NORP genocide by means of an official declaration or from the approach chosen – namely recommending to the NORP authorities that an international panel of experts be set up – that the conclusion that there is a general consensus as to the characterisation of the events in question as genocide is arbitrary . In accordance with the clearly expressed wish of ORG , its approach is guided by the concern to prompt GPE to engage in collective remembrance of its past ( BO / CN DATE : response by ORG to the non - binding motion by PERSON ; BO / CN DATE et seq . : response by Federal Councillor PERSON to the non - binding motion by Mr PERSON on recognition of the DATE NORP genocide ) . This attitude of openness to dialogue can not be construed as denial of the existence of a genocide and there is nothing to suggest that the support expressed by ORG in DATE for the setting up of an international commission of inquiry did not stem from the same approach . It can not be inferred in general that there is sufficient doubt within the community , particularly among academics , as to the classification of the events of DATE as genocide to render the finding of such a consensus arbitrary .

That being so , the appellant has not shown how ORG acted arbitrarily in finding that there was a general consensus , particularly among academics , as to the classification of the events of DATE as genocide . It follows that the cantonal authorities were correct in refusing to allow the appellant ’s attempt to open a historical and legal debate on this issue .

As to the subjective element , the offence provided for in LAW requires intentional conduct . In judgments ORG CARDINAL IV CARDINAL , point CARDINAL , p. CARDINAL , and CARDINAL PERSON , point CARDINAL , p. CARDINAL , ORG held that such intentional conduct had to be guided by motives of racial discrimination . This question , which has prompted debate among legal writers , was subsequently left open in judgments ORG CARDINAL LAW , point CARDINAL , in particular p. CARDINAL , and CARDINAL PERSON , point CARDINAL , p. CARDINAL . It can likewise be left open in the instant case , as will be shown below .

With regard to intent , ORG found that [ the applicant ] , a doctor of laws , politician and self - styled writer and historian , had acted in full knowledge of the consequences , stating that he would never change his position , even if a neutral panel should DATE conclude that the NORP genocide did indeed take place . These findings as to the appellant ’s internal volition to deny a genocide relate to matters of fact ( see ORG CARDINAL IV CARDINAL , point CARDINAL , DATE , point CARDINAL , CARDINAL IV CARDINAL , point CARDINAL , CARDINAL IV CARDINAL , point CARDINAL and citations ) , with the result that ORG is bound by them ( section CARDINAL ) of LAW ) . Moreover , the appellant has not submitted any complaints on that issue . He has not sought to demonstrate that these findings of fact are arbitrary or the result of a violation of his rights under LAW or the Convention , so there is no need to consider this question ( section CARDINAL(CARDINAL ) of LAW ) . It is unclear in any event how the cantonal authorities , which inferred the appellant ’s intention from external considerations ( cf . ORG CARDINAL IV CARDINAL , point CARDINAL , p. CARDINAL ) , could have disregarded the very concept of intention under federal law in relation to this issue .

As to the appellant ’s motives , ORG found that they appeared to be of a racist and nationalistic nature and did not contribute to the historical debate , noting in particular that he had described the NORP as aggressors of the NORP people and that he claimed to be a follower of [ Talaat ] Pasha , who together with his QUANTITY brothers was historically the initiator , the instigator and the driving force of the NORP genocide ( ORG judgment , point II , pp . CARDINAL et seq . ) .

It has not been disputed in the instant case that the NORP community constitutes a people , or at the very least an ethnic group ( as to this concept , see PERSON , GPE , CARDINALnd ed . , note CARDINAL , p. CARDINAL ) , which identifies itself in particular through its history , marked by the events of DATE . It follows that denial of the NORP genocide – or the representation of the NORP people as the aggressor , as put forward by the appellant – in itself constitutes a threat to the identity of the members of this community ( ORG , op . cit . , LAW , note CARDINAL and reference to ORG ) . ORG , which found that there had been motives linked to racism , likewise ruled out that the approach pursued by the appellant pertained to historical debate . These findings of fact , about which the appellant raised no complaint ( section CARDINAL(CARDINAL ) of LAW ) , are binding on ORG ( section CARDINAL ) of LAW ) . They provide sufficient evidence of the existence of motives which , above and beyond nationalism , can only be viewed as racial , or ethnic , discrimination . It is consequently unnecessary in the present case to settle the debate among legal writers mentioned in point CARDINAL above . In any event , the appellant has not raised any complaints concerning the application of federal law in relation to this matter .

The appellant further relies on the freedom of expression enshrined in LAW ORG , in connection with the cantonal authorities’ interpretation of Article CARDINAL bis § CARDINAL of LAW .

However , it appears from the records of the questioning of the appellant by the GPE / Unterland public prosecutor ’s office ( DATE ) that in making public statements , particularly in PERSON , the appellant was intending to ‘ help the NORP people and ORG to rectify the error’ ( that is to say , recognition of the NORP genocide ) . Furthermore , he was aware that genocide denial was a criminal offence and stated that he would never change his position , even if a neutral panel should one day conclude that the NORP genocide did indeed take place ( ORG judgment , point II , p. CARDINAL ) . It can be inferred from these aspects that the appellant was not unaware that by describing the NORP genocide as an ‘ international lie’ and by explicitly denying that the events of DATE amounted to genocide , he was liable to face a criminal penalty in GPE . The appellant can not therefore draw any favourable inferences from the lack of foreseeability of the law he cites . These considerations , moreover , support the conclusion that the appellant is in essence seeking , by means of provocation , to have his assertions confirmed by the NORP judicial authorities , to the detriment of the members of the NORP community , for whom this question plays a central role in their identity . The applicant ’s conviction is thus intended to protect the human dignity of members of the NORP community , who identify themselves through the memory of the DATE genocide . Criminalisation of genocide denial is , lastly , a means of preventing genocides for the purposes of LAW , opened for signature in GPE on CARDINAL DATE and approved by ORG on DATE ( RS [ GPE systématique – Compendium of Federal Law ] CARDINAL.CARDINAL.CARDINAL ) .

It should be noted , moreover , that the appellant has not denied the existence either of massacres or of deportations ( see point A above ) , which can not be categorised , even if one exercises restraint , as anything other than crimes against humanity ( Niggli , ORG raciale , note CARDINAL , p. CARDINAL ) . Justification of such crimes , even with reference to the law of war or alleged security considerations , will in itself fall foul of Article CARDINAL bis § CARDINAL of LAW , so that even from this perspective , regardless of whether these same acts are characterised as genocide , the appellant ’s conviction on the basis of LAW does not appear arbitrary in its outcome , any more than it breaches federal law . ”

In DATE the applicant was arrested and charged in the context of the so - called LOC proceedings ( of which short descriptions may be found in PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ; PERSON v. GPE , no . MONEY , § DATE ; PERSON v. GPE DATE . ) , no . GPE , § § DATE , DATE ; and GPE v. GPE ( dec . ) , no . GPE , § § DATE , DATE ) . On CARDINAL DATE ORG convicted him , alongside many others , and sentenced him to life imprisonment . That judgment was appealed against , and the proceedings are now pending before ORG ( see PERSON , § DATE , and GPE , § CARDINAL , both cited above , as well as Yıldırım v. GPE ( dec . ) , no . GPE , § DATE ) . He was released from pre - trial detention in DATE .

The third party ORG , ORG and ORG referred to the web - versions of CARDINAL articles in NORP newspapers . The first , published in the DATE GPE on DATE , said that after the assassination of PERSON the applicant had sent an open letter to ORG of GPE . In that letter he had denounced the assassination as a provocation by GPE against GPE , and had invited the ORG openly to say that it had been instigated by GPE and thus , as a leader of the NORP in GPE , set an example to those defending the unity of the NORP nation . The second article , published in the daily PERSON on CARDINAL DATE , did not mention the applicant . It described anonymous threats sent to NORP schools in GPE in connection with the NORP position in relation to the events of DATE and DATE . It added that in reaction to those threats , the provincial director of education had sought to reassure the NORP and asked the authorities to take precautionary measures .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants , Mr PERSON and PERSON , are NORP nationals . Mr PERSON was born in DATE and lives in GPE , while PERSON was born in DATE and lives in GPE . The applicants were represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .

The applicants are the children of Mr Vasil Tonkev , who was killed on CARDINAL DATE during a police operation aimed at apprehending him .

CARDINAL luxury cars were stolen in the GPE region in DATE . Mr PERSON was one of the suspected perpetrators of the thefts .

On DATE the head of ORG in GPE ordered an operation aimed at apprehending the perpetrators . He selected CARDINAL police officers to participate in the operation , scheduled for TIME . The officers were briefed in advance ; they were advised , in particular , that the individuals they were seeking to apprehend were dangerous and armed and would be unlikely to obey police orders .

At TIME on DATE the officers , in CARDINAL police cars and a minivan , left GPE for the city of PERSON , where , according to operational intelligence data , a theft was planned for TIME . They arrived in the city at TIME At TIME on CARDINAL DATE they were informed that a car , a ORG XCARDINAL , had been stolen and was heading towards GPE . It transpired subsequently that the car had been stolen and was being driven by Mr Tonkev . Once in GPE , he stole another car together with an accomplice .

NORP The police officers returned to GPE , where they were informed that the CARDINAL stolen cars were taking the motorway to GPE . QUANTITY police cars and a minivan followed them . At TIME the CARDINAL stolen cars left the motorway and entered nearby fields . The police officers set up CARDINAL roadblocks , obstructing roads in the area .

At TIME the CARDINAL cars left the fields and headed towards the first roadblock . Once the drivers had seen it , they made a U - turn . CARDINAL of the cars , driven by Mr Tonkev ’s accomplice , took a dirt road back towards the fields , followed by several officers . The car was subsequently found , but the driver managed to escape . Mr Tonkev remained on the road in the other stolen car , driving at high speed towards the second roadblock . The officers who were there tried to stop him , placing the police car in the middle of the road . However , PERSON did not stop but managed to drive round the car , hitting it . Then he continued towards the third roadblock .

Having been told on the radio by their colleagues that Mr Tonkev had driven past the second roadblock , had hit the police car and was driving towards them , the officers at the third roadblock made preparations to stop him . They parked their police minivan in the middle of the road and stood around it .

Mr Tonkev approached at high speed . With their hands raised , the officers signalled to him to stop . He did not do that , but instead directed the car at the officer who was standing to the left of the minivan and who had to jump hastily into the ditch to escape . The other officers from the group stated later that they had thought the car had knocked him down , as they had not been able to see him . Mr Tonkev then drove towards the other officers , who were standing in a group to the right of the minivan . The first CARDINAL of them , after once again making gestures indicating that he should stop , jumped out of the way . This left the third officer , PERSON , alone in front of the speeding car . Mr PERSON was armed with an AK-CARDINAL assault rifle , set to semi - automatic fire . He fired CARDINAL warning shots aimed to be into the air . However , at that very moment he had to jump hastily out of the way to avoid being hit by the car and fell to the ground . This changed the direction of the shots , which instead hit the front right - hand door of the car driven by Mr Tonkev . Already on the ground , Mr K.A. fired CARDINAL more shot , which hit the car ’s right rear tyre . CARDINAL of the other officers attempted to deploy a spike strip to stop the car , but did not succeed . Mr Tonkev continued driving and headed towards the fourth roadblock .

Approaching the roadblock at high speed , he once again directed the car at the police officers trying to stop him and they had to jump to CARDINAL side to escape . They managed to deploy a spike strip , but despite passing through it , Mr Tonkev continued driving and soon after that turned off onto a small dirt road . The police officers started searching the area . DATE they found the abandoned car . They heard Mr Tonkev cry for help and found him close by , wounded . They called an ambulance , but Mr Tonkev died before its arrival .

Criminal proceedings concerning a possible offence under LAW of LAW ( see paragraph CARDINAL below ) were instigated on DATE . The investigation was conducted against an “ unknown perpetrator ” until its conclusion .

On CARDINAL DATE the scene of the incident was visited by an investigator from the investigation service in GPE . He also inspected the car which had been driven by Mr Tonkev . CARDINAL bullet holes were found in its front right - hand door , but CARDINAL of the bullets had pierced the door and penetrated the interior . Stains of dry blood were found on the left - hand front seat . A bag of tools including pliers and screwdrivers was found on the back seat .

A post mortem of Mr Tonkev ’s body was carried out on CARDINAL DATE . A gunshot wound measuring QUANTITY was found in the right lower part of the thorax . The bullet , which had penetrated horizontally , had caused a laceration of the liver . This had resulted in a severe intra - abdominal haemorrhage , which had caused the death . The expert concluded that the lethal shot had not been fired at close range .

A ballistic expert report was drawn up on CARDINAL DATE . It established that the lethal shot had been fired from the ORG rifle used by Mr K.A.

Many of the officers who took part in the operation on DATE and CARDINAL DATE , including all of those who had been stationed at the third roadblock , were interviewed on different dates . PERSON was interviewed on CARDINAL DATE . He said that he had fired into the air and immediately after that had jumped back to escape the speeding car . He also stated that his aim had been to preserve the life and physical integrity of his colleagues and of Mr Tonkev .

A combined medico - ballistic expert report was drawn up on DATE . It established that the lethal shot which had killed ORG had been fired from QUANTITY . Whoever fired the shot had been positioned to the right and slightly in front of the victim . The shot had been fired while he was falling , staggering or jumping backwards and the gun had been in a horizontal position . The victim had been sitting in the driver ’s seat , leaning against the backrest in the normal way .

Another medico - ballistic expert report , drawn up on DATE , concluded that , while firing the first CARDINAL shots , Mr K.A. had been moving to the right , attempting to escape the approaching car . It was possible that at the time the second of these shots was fired he was no longer supporting the rifle with his left hand , which was thus in a position close to horizontal . The experts were of the view that it was impossible for shots fired into the air to have the trajectory observed in the case .

On several occasions in the course of the investigation the ORG representatives requested the replacement of the investigator and the prosecutor in charge of the case , arguing that they were not carrying out a thorough and independent investigation . In particular , the applicant ’s representatives considered that the investigator and the prosecutor , by commencing an investigation concerning a possible offence under LAW of LAW , had predetermined the course of the criminal proceedings and had allegedly unjustifiably sought to discontinue the proceedings ( see below ) . On all occasions the requests for replacement of the investigator and the prosecutor were refused by their superiors , it being found that the investigation was being carried out in a thorough and vigorous manner and that the allegations made by the applicants could not justify the conclusion that the investigator and the prosecutor were not independent .

On DATE the prosecutor in charge of the case decided to discontinue the criminal proceedings , finding , on the basis of LAW ( see paragraph CARDINAL below ) , that no offence had been committed in connection with Mr Tonkev ’s death . The prosecutor considered that Mr Tonkev ’s actions , namely his directing of the powerful car he had been driving at high speed towards the police officers , represented an unlawful direct attack that placed their health and lives at risk . It therefore justified self - defence on their part , in particular the firing of the QUANTITY shots by Mr K.A.

Upon an appeal by the first applicant , on DATE the ORG quashed the prosecutor ’s decision , considering that she had not examined in a thorough manner the particular circumstances in which Mr K.A. had fired the lethal shot , such as the position of his body and the possible trajectory of the bullet .

NORP The prosecutor collected further evidence , in particular the expert report mentioned in paragraph CARDINAL above , and on DATE decided to discontinue the criminal proceedings , relying once again on the provision contained in LAW . She considered that Mr Tonkev had launched a “ direct and unlawful attack ” on the police officers at the second , third and fourth roadblocks , using the car he was driving “ as a weapon ” capable of injuring or killing any CARDINAL of them . Thus , Mr K.A. had “ no longer aimed at apprehending ” Mr Tonkev , but had acted in self - defence , in order to protect his own life , and also the lives of his colleagues . Given Mr Tonkev ’s aggressiveness , the action taken in selfdefence had not been disproportionate . Mr K.A. had used his firearm after all other attempts to halt the attack had proved futile .

Upon an appeal by the first applicant , on DATE ORG upheld the prosecutor ’s decision , confirming her conclusion that PERSON had acted in self - defence , and finding that the investigation of Mr PERSON ’s death had been objective and thorough . The court dismissed the first applicant ’s argument that it had been necessary to examine as witnesses all officers who had participated in the operation of CARDINAL April-CARDINAL DATE , pointing out that all the eye - witnesses to the relevant events had been interviewed . The domestic court dismissed a further argument put forward by the first applicant that Mr Tonkev had not been armed , that his actions had been predictable and that he had not posed a danger to the officers . The court pointed out that Mr Tonkev had used the car driven by him “ as a weapon ” and that he had aimed at injuring or even killing the police officers trying to stop him . Thus , it did not appear that the use of lethal force was unjustified . Lastly , the domestic court dismissed the argument that the police ORG actions had been “ inadequate ” and that they could have halted the car ’s movement by using spike strips at TIME than the fourth roadblock . It noted that the place where Mr Tonkev and his accomplice had been hiding and the route they were intending to take had been unclear and that , moreover , the situation had unfolded very quickly .

Upon a further appeal by the first applicant , in a final decision of DATE ORG upheld the discontinuation of the criminal proceedings . It noted that Mr Tonkev ’s death had occurred within the framework of a police operation organised with the aim of apprehending him after he had stolen a car . It observed also that Mr Tonkev ’s actions had created “ a real and immediate danger ” for the police officers at the third roadblock and that in firing the shot which had killed PERSON , PERSON had acted in self - defence . ORG noted further that at the moment when the shots were fired , the attack carried out by Mr Tonkev had not ceased and that the actions taken in defence had been aimed at repelling it . This was illustrated by the fact that the shots fired by PERSON had been directed at the front right door of the car , and not at the side windows ; thus , he had aimed to halt the car ’s movement and prevent its running over him and his colleagues . Lastly , ORG concluded that the self - defence manifested in the case had been within the necessary limits , seeing that the attack launched by ORG had been strongly violent . For the self - defence to be considered disproportionate , it would have to have clearly exceeded what had been necessary to repel the attack , and this had not been the case .

Article CARDINAL § CARDINAL of LAW of DATE provides that an act committed in self - defence and not causing disproportionate harm to the attacker is not criminal .

Under LAW , causing death by a disproportionate reaction to an attack is punishable by up to MONEY imprisonment .