ISSN 2039-1676

ISSN 2039-1676

2 novembre 2016 |

Testing the “Uniqueness”: Denial of the Holocaust vs Denial of Other Crimes before the European Court of Human Rights

The present chapter will be published in U. Belavusau, A. Gliszczynska-Grabias (eds.), Law and Memory. Addressing Historical Injustice by Law, Cambridge University Press, 2017. The author wishes to express his gratitude to the editors and the publisher for having permitted the advance publication of this chapter on Diritto Penale Contemporaneo.


Abstract. Litigation concerning domestic restrictions on Holocaust denial has produced a 30-year long jurisprudence of the European Court and European Commission of Human Rights. In spite of solemnly-declared principles on free speech, the Strasbourg organs have progressively developed in this regard an exceptional regime based on the ‘abuse clause’ envisaged under Article 17 ECHR. This detrimental treatment has been extended to encompass a growing class of utterances, including the denial of historical facts other than the Nazi genocide. This concerning tendency appears to have reversed course in the recent case of Perinçek v. Switzerland, in which the Court adopted a more prudent approach.

This chapter begins by examining the Strasbourg case law on Holocaust denial in its three stages of evolution. The aforesaid restrictive trend based on Article 17 is then tested against the principles established in Perinçek, in order to assess whether this recent case may truly be considered as a turning point in the European Court’s position on historical revisionism. In particular, the chapter attempts to evaluate if the denial of the Holocaust still deserves a unique judicial treatment. That is, whether Holocaust denial may in and of itself justify harsher limits to free speech than those allowed in respect of other disdainful attacks against a wider class of heinous crimes, such as the Armenian massacre, the Holodomor and the genocides in Rwanda and Srebrenica.

SOMMARIO: 1. Introduction. – 2. Setting the Scene: The Interplay Between Article 10 and Article 17. – 3. The Evolution of the Exceptional Regime Applied to Holocaust Denial. – 3.1. First Stage: Application of General Principles on Freedom of Expression. – 3.2. Second Stage: Application of Article 17 as Principle of Interpretation. – 3.3. Third Stage: Article 17 as the Categorical Exclusion of Holocaust Denial from the Protection of Article 10. – 4. The Perınçek Case as the Litmus Test for the Court’s Case Law on Denialism. – 4.1. Background to the Case and Criminal Proceedings in Switzerland. – 4.2. The Judgment of the Grand Chamber. – 4.2.1. Preliminary Issue: The Applicability of Article 17. – 4.2.2. The Merits of the Application. – 4.2.3. Conclusion. – 5. Another Episode in the On-going Saga on the Role of Article 17. – 5.1. The Scope of Applicability of the Abuse Clause. – 5.2. The Modus Operandi of the Abuse Clause. – 6. Denial of the Holocaust: Special or Unique? – 7. Conclusion.