2
GRA STIFTUNG GEGEN RASSISMUS UND
ANTISEMITISMUS v. SWITZERLAND JUDGMENT
6. On 5 November 2009 the youth wing of the Swiss People’s Party
(Junge Schweizerische Volkspartei) held a demonstration in the train station
square in the town of Frauenfeld concerning a public initiative to support
the prohibition of the building of minarets in Switzerland. After the event
the party published a report on its website, including the following excerpts:
“In his speech in front of the Thurgau government building [Thurgauer
Regierungsgebäude], B.K., the president of the local branch of the Young Swiss
People’s Party [“the JSVP”], emphasised that it was time to stop the expansion of
Islam. With this demonstration, the Young Swiss People’s Party wanted to take an
extraordinary measure in an extraordinary time. The Swiss guiding culture
(“schweizerische Leitkultur”), based on Christianity, cannot allow itself to be replaced
by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets,
would therefore be an expression of the preservation of one’s own identity.”
7. In response, the applicant posted an entry on its website in the section
called “Chronology – Verbal racism”, entitled “Frauenfeld TG,
5 November 2009”, including the following extract:
“According to the report of the event, B.K., the president of the local branch of the
Young Swiss People’s Party, emphasised that it was time to stop the expansion of
Islam. He added further: ‘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.’ Swiss People’s Party of Switzerland canton representative H.L. also spoke
to the few people who attended; nevertheless, the Young Swiss People’s Party speaks
of a great success. (Verbal racism)”
8. On 29 November 2009 the popular initiative against the construction
of minarets was accepted in a referendum and a constitutional amendment
banning the construction of new minarets was introduced.
9. On 21 August 2010 B.K. filed a claim for the protection of his
personality rights with the Kreuzlingen District Court (Bezirksgericht
Kreuzlingen). He applied, firstly, to have the applicant organisation
withdraw the entry in question from its homepage and, secondly, for it to be
replaced with the court’s judgment. The applicant organisation replied that
the title of the Internet entry had to be considered as a value judgment,
which could only lead to an infringement of personality rights if it entailed
an unnecessarily hurtful and insulting attack on the person concerned.
10. On 15 March 2011 the Kreuzlingen District Court dismissed B.K.’s
action. It held that the publication of the impugned article on the applicant’s
website had been justified since it had related to a political discussion on a
matter of public interest.
11. On appeal, on 17 November 2011 the Thurgau Cantonal High Court
(Obergericht des Kantons Thurgau) reversed the first-instance judgment. It
held that classifying B.K.’s speech as “verbally racist” had been a mixed
value judgment, which could lead to an infringement of personality rights if
it was based on untruths. The High Court concluded that B.K.’s speech
itself had not been racist. It therefore ordered that the impugned article be
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