Communicated on 12 October 2015
SECOND SECTION
Application no. 18597/13
GRA STIFTUNG GEGEN RASSISMUS UND ANTISEMITISMUS
against Switzerland
lodged on 13 March 2013
STATEMENT OF FACTS
1. The applicant, GRA Stiftung gegen Rassismus und Antisemitismus (“GRA Foundation against Racism and Anti-Semitism”), is a non‑governmental organisation registered in Zürich. It is represented before the Court by Mr A. Joset, a lawyer practising in Liestal.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 5 September 2009 the youth wing of the Swiss People’s Party (“Junge Schweizerische Volkspartei”) held a demonstration in the train station square in Frauenfeld concerning the public initiative to support the prohibition of the building of minarets in Switzerland. After the event, it published a report on its webpage, including the following excerpts:
“In his speech in front of the Thurgau government building [“Thurgauer Regierungsgebäude”], B.K., the president of the Young Swiss People’s Party [“JSVP”], emphasized that it was time to stop the expansion of Islam. With the demonstration, the Young Swiss People’s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture, based on Christianity, cannot allow for it to be replaced by other cultures, B.K. added. A symbolic sign such as the minaret prohibition would therefore be an expression of the preservation of their own identity.”
4. In response to this article, the applicant published on its webpage under a section “Chronology – Verbal racism”, an entry entitled “Frauenfeld TG, 5 November 2009”, including the following extract:
“According to the report of the event, B.K., president of the Young Swiss People’s Party, emphasized that it was time to stop the expansion of Islam. He added further: ‘The Swiss guiding culture, based on Christianity, cannot allow for it to be replaced by other cultures. A symbolic sign such as the prohibition of minarets would therefore be the expression of the preservation of their own identity.’ The counsellor of the canton of the Christian Democratic People’s Party of Switzerland, H.L., also spoke to the few attendees; nevertheless, the Young Swiss People’s Party speaks of a great success. (Verbal racism)”
5. On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court (“Bezirksgericht Kreuzlingen”) requesting, firstly, that the applicant be prohibited from publishing the concerned entry on its homepage and, secondly, that the impugned entry be replaced with the court judgment. The applicant replied that the title it had given to its internet entry had to be considered a value judgment which could only lead to an infringement of personality rights if it entailed an unnecessarily hurtful and insulting attack on the person concerned.
6. On 15 March 2011 the Kreuzlingen District Court rejected B.K.’s action. It held that the publication of the impugned article on the applicant’s webpage was justified since it related to a political discussion on a matter of public interest.
7. On appeal, on 17 November 2011 the Thurgau Cantonal High Court (“Obergericht des Kantons Thurgau”) reversed the first-instance judgment. It held that classifying B.K.’s speech as “verbally racist” had been a mixed value judgment which could lead to the infringement of his personality rights if it was based on untrue facts. The High Court concluded that B.K.’s speech itself had not been racist. Therefore, it ordered that the impugned article be removed from the applicant’s webpage and replaced with its judgment.
8. The applicant appealed, relying on its freedom of expression and reiterating that any interference with B.K.’s personality rights had been justified. It was part of the applicant’s main aim to fight racism and to inform the public about hidden and open racist behaviour. Its webpage stated that public comments would be documented even if they did not fall within the scope of the prohibition of racial discrimination as enshrined in Article 261bis of the Swiss Penal Code. To fulfil its role of a watchdog in this sense, the applicant published articles and interviews concerning current situations relating to racism and anti-Semitism.
9. On 29 August 2012 the Federal Tribunal (“Bundesgericht”) dismissed the applicant’s appeal. It held that classifying B.K.’s speech as verbally racist had to be considered a mixed value judgement which had no factual basis because his speech had not been racist.
B. Relevant domestic law
10. The relevant part of Part One, Chapter One of the Swiss Civil Code as in force at the material time reads as follows:
Article 28
“Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement.
An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.”
Article 28a
“The applicant may ask the court:
1. to prohibit a threatened infringement;
2. to order that an existing infringement cease;
3. to make a declaration that an infringement is unlawful if it continues to have an offensive effect.
In particular the applicant may request that the rectification or the judgment be notified to third parties or published.
Claims for damages and satisfaction or for the handing over of profits are reserved, in accordance with in accordance with the provisions governing agency without authority.”
11. The relevant part of the Swiss Criminal Code as in force at the material time reads as follows:
Article 261bis
Racial discrimination
“Any person who publicly incites hatred or discrimination against a person or a group of persons on the grounds of their race, ethnic origin or religion, any person who publicly disseminates ideologies that have as their object the systematic denigration or defamation of the members of a race, ethnic group or religion,
any person who with the same objective organises, encourages or participates in propaganda campaigns,
any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity,
any person who refuses to provide a service to another on the grounds of that person’s race, ethnic origin or religion when that service is intended to be provided to the general public,
is liable to a custodial sentence not exceeding three years or to a monetary penalty.”
COMPLAINT
The applicant complains under Article 10 of the Convention about the violation of its right to freedom of expression.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention?
Full & Egal Universal Law Academy