12
GRA STIFTUNG GEGEN RASSISMUS UND
ANTISEMITISMUS v. SWITZERLAND JUDGMENT
that B.K. was an adult and thus bore full responsibility for his political
activities.
36. Finally, the court proceedings at issue had had a chilling effect on
the applicant organisation, not least in view of the considerable court and
lawyers’ fees it had been ordered to pay. Such actions had de facto put an
end to its public watchdog activities as it now had to fear further court
action. If it had not complied with the court order to remove the impugned
entry from its website, the applicant organisation would have faced a fine of
up to 10,000 Swiss francs (CHF) (around 9,200 euros (EUR)). Such costs
were a serious threat to the applicant’s right to freedom of expression,
particularly in view of the fact that they could practically disable its
functioning owing to its limited resources, which were earmarked for
specific purposes.
(b) The Government
37. The Government submitted that the classification of B.K.’s
statements as an act of “verbal racism” had constituted a mixed value
judgment, which had to have a factual basis. The Federal Supreme Court
had relied on the sense generally attributed to the notion of racism and the
perception of B.K.’s statements that an average person would have had. In
that regard, the Federal Supreme Court had referred to the definition in the
reference dictionary for the German language, according to which racism
related to the superiority of certain races or peoples over others due to their
cultural capacity and, on the other hand, a corresponding attitude or
behaviour towards other people belonging to certain races or peoples. A
simple mention of the differences between two individuals or groups could
not be interpreted as racism. Racism began where such a difference at the
same time involved belittlement of the victim and where the highlighting of
such differences was used to present the victim in a negative light and to
denigrate them. In the Government’s view, that definition corresponded to
the one used by the Swiss Federal Commission Against Racism and the
European Commission against Racism and Intolerance (ECRI).
38. The applicant organisation defined racism on its website and in the
proceedings it had pointed out that the notion of racism had to be
understood in a particularly wide sense so as to cover any grouping
according to race, skin colour, origin, nationality, culture or religion.
Nevertheless, the Government argued that in the context of the protection of
reputation, the general sense attributed to the notion of racism had to be
borne in mind, which implied in particular that the target group was of a
lower value than one’s own group. In his speech B.K. had only compared
his own culture, founded on Christianity, with other cultures, including
Islam. He had defined both of them and had designated his own culture as
worthy of protection. His statements had not contained racist words
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