Background

GRA Stiftung gegen Rassismus und Antisemitismus (the GRA Foundation against Racism and Anti-Semitism), is a Swiss NGO that promotes tolerance and condemns racially-motivated discrimination.

In November 2009, the youth wing of the Swiss People’s Party held a meeting in Frauenfeld during the run-up to the referendum on banning the building of minarets. After the meeting, GRA posted an entry on its website citing the People’s Party’s own report of a speech by BK, the head of the party’s local youth branch, which quoted him as saying that it was time to stop the expansion of Islam, that “the Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures” and that banning minarets would be an expression of the preservation of national identity. The minaret ban was approved in the referendum and the Constitution was amended to implement the result.

In August 2010 BK took GRA to court over the report on its website, filing a claim for protection of his personality rights. He applied for an order that the organisation withdraw the entry and that it be replaced with the court’s judgment. GRA argued that the entry was a value judgment that could only infringe personality rights if it was unnecessarily hurtful and insulting.

In March 2011, the district court dismissed BK’s claim on the grounds that the Internet article had been justified because it had related to a political discussion about a matter of public interest; however, that judgment was reversed on appeal in November 2011. The appellate court held that the words “verbal racism” were a mixed value judgment that could infringe personality rights if based on untruths. It found that BK’s speech had not been racist and ordered GRA to remove the article and replace it with the court’s judgment. GRA appealed to the Federal Supreme Court arguing justification: one of GRA’s main aims was to inform the public about racist behaviour and, in pursuit of that, it published articles and interviews on current events relating to racism and anti-Semitism.

The Federal Supreme Court dismissed the appeal in August 2012. It held that BK’s comments could not be described as verbally racist and that the mixed-value judgment which had infringed his personality rights had not been justified by any overriding public interest. Though BK had been involved in a political debate – which meant that he had to accept a reduced level of protection for his personal rights – that did not, of itself, justify disseminating untruths or publishing value judgments that were not based on facts.

Before the ECtHR, GRA Stiftung argued inter alia that the Federal Supreme Court had been wrong to find that the expression “verbal racism” was a mixed value judgment which required proof and that its rights under Article 10 ECHR (freedom of expression) had been violated.

The judgment

In GRA Stiftung gegen Rassismus und Antisemitismus v Switzerland [2018] ECHR 15, the Third Section ECtHR began from the position that the complaint was not manifestly ill-founded within the meaning of Article 35 §3(a) ECHR nor inadmissible on any other grounds. The Federal Supreme Court had found that because BK’s statements were labelled as “verbal racism” he had been accused, implicitly, of a criminal offence under Article 261bis of the Swiss Criminal Code. GRA had responded that the criminal offence of “racial discrimination” could not be equated with the term “racism”; moreover,

“The concept of racism was highly complex and often disputed and a brief reference by the Federal Supreme Court to a dictionary entry could not sufficiently explain its complexity” [31].

The crux of the Swiss Government’s response had been that to describing someone’s words as “verbal racism” could decrease respect for that person generally; the average reader would associate it with an accusation of an offence punishable under the criminal law. Given that the words used in the report had equated to liability for criminal conduct, there had been a “pressing social need” to prevent people gaining the impression of such serious charges [41] and the sanctions against GRA had been of a civil nature and limited in scope [42]. Therefore, the impugned measure had not exceeded Switzerland’s margin of appreciation [43].

It was not disputed that the domestic courts’ finding against GRA had interfered with its right to freedom of expression [44] and the Court concluded that the interference had been “prescribed by law” [49]. However, a distinction had to be made between private individuals and persons acting as political or public figures: for them, the limits of critical comment were wider because they were “inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance” [62].

The fact that BK was only 21 when he made the speech, at the beginning of his political career and unknown at the national level was not a mitigating factor: “BK had been elected president of a local branch of the youth wing of a major political party in Switzerland” and the speech “was clearly political and was made in the framework of support for his party’s political goals, which at that time were to promote the popular initiative against the construction of minarets” [63 & 64]. He had willingly exposed himself to public scrutiny “and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views” [65].

As to its content, BK’s speech had implied that the “Swiss guiding culture” was “worthy of protection and defence” against the expansion of Islam. In the Court’s view, that in itself would suggest that “the expansion of Islam” was something negative from which the “Swiss guiding culture” needed protection [72]. It could not, therefore, be said that classifying the speech as “verbal racism”, when it supported an initiative that had already been described by various organisations as discriminatory, xenophobic or racist, could be regarded as devoid of any factual basis [73]. Further, GRA Stiftung had never suggested that BK’s statements fell within the scope of the criminal offence of racial discrimination under Article 261bis of the Swiss Criminal Code [74], nor could the impugned description be understood as a gratuitous personal attack on or insult to BK, who “must have known that his speech might cause a critical reaction among his political opponents” [75].

Moreover, the sanction imposed – however mild – may have had a “chilling effect” on the exercise of GRA’s freedom of expression because it may have discouraged it from pursuing its statutory aims and criticising political statements and policies in the future [78].

In conclusion, the Swiss Government had not justified the interference at issue and had exceeded the margin of appreciation afforded it [79]. There had accordingly been a violation of Article 10 [80]. The Court awarded GRA €5,000 in non-pecuniary damage and €30,000 costs and expenses.