GRA STIFTUNG GEGEN RASSISMUS UND
ANTISEMITISMUS v. SWITZERLAND JUDGMENT
11
B. Merits
1. The parties’ submissions
(a) The applicant
30. The applicant submitted that the Federal Supreme Court had
wrongly found the expression “verbal racism” to be a mixed value judgment
which required proof of veracity. In any event, considering the
socio-political context, the description of B.K.’s speech as an act of “verbal
racism” could not be regarded as devoid of any factual basis.
31. The Federal Supreme Court found that because his statements were
labelled as “verbal racism”, B.K was implicitly being accused of a criminal
offence under Article 261bis of the Swiss Criminal Code. However, in the
applicant organisation’s view, the criminal offence of “racial
discrimination” could not be equated with the term “racism”. 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.
32. The applicant organisation regularly wrote about racist incidents that
did not fall within the meaning of a criminal offence. Its website clearly
explained its wide understanding of the term “racism” and detailed the
contents of the category “verbal racism” so that readers were well aware of
what to expect. In the applicant organisation’s view, prohibiting the term
“racism” from being used to describe certain kinds of behaviour or
statements if they did not amount to a criminal offence within the meaning
of Article 261bis of the Criminal Code would be highly damaging to
democratic society and in complete contradiction to various human rights
standards.
33. In its role of “public watchdog”, the applicant organisation argued
that it deserved the same protection as the press and that the margin of
appreciation of the respondent State should therefore be restricted.
Moreover, it had exercised the degree of discretion required from all
journalistic publications in the impugned Internet entry and had refrained
from provocation.
34. The applicant stressed that the initiative against the construction of
minarets had given rise to heated discussions in Switzerland. In its view,
there was no doubt that that political initiative had been racist and
discriminatory. That view had been confirmed by a number of renowned
experts and bodies, which had held that the initiative was “racist” in nature,
or at least racist-related.
35. The applicant organisation further argued that B.K., in his role as a
politician, had to accept that he was more likely to become the subject of
criticism than the average person, irrespective of his young age. Rejecting
the Government’s argument in that regard, the applicant organisation stated
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