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13.02.2018

Website was right to call Swiss politician’s speech “verbal racism” 

By Emil Weber

A Swiss non-governmental organisation which promotes tolerance and anti-discrimination was right to call a politician’s statements “verbal racism” in its website, the top European human rights court ruled on 9 January 2018.

Top Euro court rules on journalists' sources Adrian Grycuk Courtroom European Court of Human Rights 05 https://creativecommons.org/licenses/by-sa/3.0/pl/deed.en

The GRA (Stiftung gegen Rassismus und Antisemitismus) was referring to statements made by the local Young Swiss People’s Party (JSVP) leader at a demonstration in Frauenfeld in November 2009. The youth wing politician had said “it was time to stop the expansion of Islam” and that 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”.

His first application at the Kreuzlingen District Court for the protection of his personal rights was dismissed in 2011, but was then reversed from the Thurgau Cantonal High Court and upheld from the Federal Supreme Court in 2012. Eventually, according to domestic justice the phrase “verbal racism” violated the politician’s honour since it was “a mixed value judgement” consisting of “a substantive core and, at the same time, a value judgement”. The organisation was ordered to remove the article from the website, to publish the court’s decision and to cover the costs of the proceedings including those of the politician.

Violation of free speech according to Article 10 

The ECtHR said that the case was of public interest in the context of the debate about banning minarets in Switzerland which was the subject of a referendum. The politician, it added, “had to show a higher degree of tolerance towards potential criticism of his statements” after he exposed his political views.

According to the ECtHR, the reference was a value judgement and there was a factual basis for it, since the initiative on minarets “had already been described by various organisations as discriminatory, xenophobic or racist”. The judgement pointed to statements made by the European Commission against Racism and Intolerance (ECRI), the Swiss Federal Commission against Racism and the UN Committee on the Elimination of Racial Discrimination

“[The politician’s] speech implied that the ‘Swiss guiding culture’ was “worthy of protection and defence” against the expansion of Islam […]. In the Court’s view, this in itself would suggest that the latter was something negative from which the former needed protection and that [the politician’s] speech was thus not merely limited to the ‘demonstration of a difference’”, the court said.

“The disputed description cannot be understood as a gratuitous personal attack on or insult to [the politician]. The applicant’s organisation did not refer to his private or family life, but to the manner in which his political speech had been perceived”.

The ECtHR also said that the disproportionate domestic sanction constituted a chilling effect on the organisation for “criticising political statements and policies in the future”.

Case of GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland, application no. 13003/04. 9 January 2018

 


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