CASE OF GRA STIFTUNG GEGEN RASSISMUS UND ANTISEMITISMUS v. SWITZERLAND
Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant is a non-governmental organisation which promotes tolerance and condemns all types of racially motivated discrimination. It was established under Swiss law and registered in Zürich. 6. On 5 November 2009 the youth wing of the Swiss People’s Party (Junge Schweizerische Volkspartei) held a demonstration in the train station square in the town of Frauenfeld concerning a public initiative to support the prohibition of the building of minarets in Switzerland. After the event the party published a report on its website, including the following excerpts: “In his speech in front of the Thurgau government building [Thurgauer Regierungsgebäude], B.K., the president of the local branch of the Young Swiss People’s Party [“the JSVP”], emphasised that it was time to stop the expansion of Islam. With this demonstration, the Young Swiss People’s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot allow itself to be replaced by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.” 7. In response, the applicant posted an entry on its website in the section called “Chronology – Verbal racism”, entitled “Frauenfeld TG, 5 November 2009”, including the following extract: “According to the report of the event, B.K., the president of the local branch of the Young Swiss People’s Party, emphasised that it was time to stop the expansion of Islam. He added further: ‘The Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.’ Swiss People’s Party of Switzerland canton representative H.L. also spoke to the few people who attended; nevertheless, the Young Swiss People’s Party speaks of a great success. (Verbal racism)” 8. On 29 November 2009 the popular initiative against the construction of minarets was accepted in a referendum and a constitutional amendment banning the construction of new minarets was introduced. 9. On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court (Bezirksgericht Kreuzlingen). He applied, firstly, to have the applicant organisation withdraw the entry in question from its homepage and, secondly, for it to be replaced with the court’s judgment. The applicant organisation replied that the title of the Internet entry had to be considered as 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. 10. On 15 March 2011 the Kreuzlingen District Court dismissed B.K.’s action. It held that the publication of the impugned article on the applicant’s website had been justified since it had related to a political discussion on a matter of public interest. 11. 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 an infringement of personality rights if it was based on untruths. The High Court concluded that B.K.’s speech itself had not been racist. It therefore ordered that the impugned article be removed from the applicant’s website and replaced with the court’s judgment. 12. On 25 January 2012 the applicant organisation filed an appeal with the Federal Supreme Court (Bundesgericht), reiterating its argument that any interference with B.K.’s personality rights had been justified. One of the applicant’s main aims was to fight racism and to inform the public about hidden and open racist behaviour. Its website stated that public comments would be documented, even if they did not fall within the scope of the prohibition of racial discrimination enshrined in Article 261bis of the Swiss Criminal Code. To fulfil its role of watchdog in that sense, it published articles and interviews concerning current events relating to racism and antiSemitism. 13. On 29 August 2012 the Federal Supreme Court dismissed the applicant organisation’s appeal, finding as follows (unofficial translation): “3. The classification of and commenting on a person’s statements as ‘verbal racism’ violate that person’s honour. Not only in the context of the criminal offence of racial discrimination (Article 261bis of the Criminal Code) but more generally, the term in question is, in the eyes of the average reader, capable of deliberately debasing the person whose comments have been classified as ‘verbally racist’, accusing him or her of behaviour which is frowned upon by society in the form of an act which is, at the very least, questionable in constitutional terms (cf. BGE 127 III 481 E. 2b / aa p. 487, 129 III 49 E. 2.2 p. 51 and 715 E. 4.1 p. 722). The appellant referred to the respondent’s speech at the public demonstration of 5 November 2009 on its website ... freely accessible on the Internet, commenting on the term ‘verbal racism’. It thereby violated the respondent’s honour as part of his personality within the meaning of Article 28 § 1 of the Civil Code. The infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Article 28 § 2 ZGB). 4. The main point in dispute is whether the appellant can rely on an overriding interest in classifying the respondent’s comments as ‘verbal racism’. 4.1. The case-law on press statements, on which the appellant relies, distinguishes between statements of facts on the one hand and value judgments on the other, and can be summarised as follows: ... 4.2. The appellant assigned the respondent’s statements to the section entitled ‘verbal racism’ ... That was a mixed value judgment. It contains a substantive core and, at the same time, a value judgment. In order to justify the substantive core, it is necessary to examine whether the respondent’s comments were indeed racist. 4.3. The term ‘racism’ is understood as ‘a doctrine’ which states that ‘certain races or nations are superior to others in terms of their cultural capacity’, and, on the other hand, a ‘certain attitude, manner of thinking and acting towards people of (certain) other races or nations’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 5, 1980, p. 2099). The adjective ‘verbal’ describes racism as ‘[occurring] with words, with the help of language’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 6, 1981, p. 2730). Verbal racism is, therefore, no longer merely a certain attitude, but an attitude in the instant case which was expressed publicly through language (as opposed to, for example, through deeds). ‘Verbal racism’ could therefore mean racial discrimination in the criminal sense, as the respondent claims. What is decisive, however, as the second-instance court correctly stated, is that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity. 4.4. The statements that led the appellant to conclude that there had been ‘verbal racism’ are the core phrases ‘it is time to stop the spread of Islam ... The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot let itself be repressed by other cultures ... A symbolic sign, such as the prohibition of minarets, is therefore an expression of the preservation of one’s own identity’. 4.4.1. In his public speech, the respondent expressed his opinion on the prohibition of minarets, which, in the opinion of the High Court, would not be compatible with freedom of religion and non-discrimination. He has, in that connection, compared his own beliefs (‘Christianity’) with foreign beliefs (‘Islam’), delimited them (‘to halt’, ‘preserving one’s own identity’) and described his own as worthy of protection and defence (‘Swiss leading culture’, ‘not to be repressed’). For the average listener, that does not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims. 4.4.2. On the whole, it cannot be said that the comments made by the respondent, as understood by the average listener, could be described as ‘verbally racist’. Therefore, the substantive core does not apply and the assessment is not acceptable. It shows the respondent in the wrong light. Therefore, the mixed value judgment, which infringed personality rights, cannot be justified by any overriding interest within the meaning of Article 28 § 2 of the Civil Code. 4.4.3. That assessment cannot be altered by the fact that in the general interest of informing the public, there is an increased degree of publicity and a reduced level of protection for personality rights for people who engage in a political debate, such as the respondent in the campaign for the minaret initiative (see BGE 105 II 161 E. 3b p. 165, 107 II 1 E. 3b p. 5). That special framework allows for the assessment of breaches of honour on a somewhat different scale, but it can neither justify the dissemination of untruths nor the publication of value judgments that do not appear to be justified with regard to the underlying facts.”