GRA STIFTUNG GEGEN RASSISMUS UND
ANTISEMITISMUS v. SWITZERLAND JUDGMENT
19
which in the first place falls within the margin of appreciation of the
national authorities, in particular the domestic courts (see Prager and
Oberschlick, cited above, § 36). However, where a statement amounts to a
value judgment, the proportionality of an interference may depend on
whether there existed a sufficient “factual basis” for the impugned
statement: if there was not, that value judgment may prove excessive
(see Morice v. France [GC], no. 29369/10, § 126, 23 April 2015). In order
to distinguish between a factual allegation and a value judgment it is
necessary to take account of the circumstances of the case and the general
tone of the remarks, bearing in mind that assertions about matters of public
interest may, on that basis, constitute value judgments rather than
statements of fact (see Paturel v. France, no. 54968/00, § 37,
22 December 2005).
69. Turning to the present case, the Court considers that the applicant’s
classification of B.K.’s speech as “verbal racism” constituted a value
judgment as it contained the applicant’s organisation’s own comment on
B.K.’s statements. What the Court has to establish is whether such a
comment could be said to have had a sufficient factual basis, bearing in
mind the general background of the ongoing political debate in which the
statement was made (see paragraph 61 above).
70. In the present case, it is not the Court’s task to settle the question of
the definition of racism, which seems to have been in dispute between the
applicant and the respondent in the domestic proceedings. The Court takes
note of the Federal Supreme Court’s conclusion, which was that merely
pointing out a difference between two individuals or groups could not be
interpreted as racism (see paragraph 13 above). At the same time, it is
mindful of the definitions of racism by ECRI and the Swiss Federal
Commission against Racism (see paragraphs 18 and 17 above).
71. The Court also attaches importance to the documents from various
specialised national and international bodies on the matter. The tone taken
in the political discourse of the supporters of the initiative in question was
described in ECRI’s 2009 report on Switzerland as one that “largely
contributes to the stigmatisation [of Muslims] and to the reinforcement of
racist prejudice and discrimination against them by members of the majority
community” (see paragraph 19 above). Likewise, the Swiss Federal
Commission Against Racism noted in its recommendations that the
initiative defamed and discriminated against Muslim men and women
(see paragraph 16 above). Furthermore, in 2014 the UN Committee on the
Elimination of Racial Discrimination reported on the initiative in its
concluding observations under the title “Racism and xenophobia in politics
and the media” (see paragraph 20 above).
72. Moreover, as observed by the Federal Supreme Court, B.K’s speech
implied that the “Swiss guiding culture” was “worthy of protection and
defence” against the expansion of Islam (see paragraph 13 above). In the
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