Article 261 bis of the Criminal Code

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Article 261 bis of the Swiss Criminal Code and the identical Article 171c of the Military Criminal Code prohibit discrimination against people and incitement to hatred , in particular against a person or group of people on the basis of their race , ethnicity , religion or sexual orientation .

The provision was added to the Criminal Code in 1994 to criminalize public racial discrimination and sedition . Therefore it was called a racism penal norm , anti-racism law or racism article. In February 2020, the provision was expanded to include the category of sexual orientation. Both times, the Swiss voters approved the new penal norm in a referendum vote demanded by right-wing conservative groups : in 1994 with around 55% and in 2020 with around 63% yes-votes.

As a legal asset, the regulation protects the human dignity of the individual and indirectly the public peace of all. In particular, this provision does not prohibit discrimination against people because of their gender identity ( e.g. from trans people ) or because of their status as foreigners or asylum seekers .

text

The provision reads as follows in the version in accordance with the amendment to the Criminal Code of December 14, 2018 adopted by the people on February 9, 2020 regarding discrimination and incitement to hatred based on sexual orientation:

Art. 261 bis Discrimination and incitement to hatred
Anyone who publicly calls for hatred or discrimination against a person or a group of people because of their race, ethnicity or religion or sexual orientation ,
anyone who publicly disseminates ideologies aimed at the systematic degradation or slander of these persons or groups of persons,
who organizes, promotes or takes part in propaganda campaigns with the same goal ,
Anyone who publicly disparages or discriminates against human dignity or genocide or for one of these reasons through word, writing, images, gestures or in any other way a person or a group of persons because of their race, ethnicity, religion or sexual orientation denies, grossly belittles or seeks to justify other crimes against humanity ,
who refuses a service offered by him that is intended for the general public to a person or a group of people because of their race, ethnicity, religion or sexual orientation,
is punished with imprisonment of up to three years or a fine.

Criminal liability requirements

Call for hatred and discrimination (para. 1)

In Art. 261 bis StGB, hatred means the stirring up of emotions in order to develop feelings of hatred towards those affected or to let them run free. Discrimination describes calls for behavior that undermine the human dignity of others.

To be a criminal offense under this provision, hatred and discrimination must relate to a person's race, ethnicity, religion or sexual orientation. Attacks on people because of other characteristics, such as foreigners or asylum seekers, are not covered by the penal norm. Swear words such as “Sauausländer” and “Dreckasylant” are therefore not punishable under this provision.

Hereditary characteristics that are (also incorrectly) assigned to a certain group of people are considered to be race in the sense of the penal norm; as an ethnicity, the totality of socio-cultural characteristics that make a group of people - just as wrongly - a distinguishable community. All beliefs related to the transcendental , including atheism , count as religion ; small groups or sects only if they have a certain durability. Groups that advocate their belief only to pursue economic interests (such as in the judgment of the St. Gallen Cantonal Court of Scientology ) or destructive, addictive cults are not considered a religion .

Public, and therefore punishable, are all actions that are not carried out in a private setting, i.e. not with family and friends or in a similar environment characterized by personal trust. The larger the circle of those present, the closer the personal relationship must be between them for the action to be considered private; a one-to-one conversation is always private. A (also closed) event among like-minded people (e.g. neo-Nazis) who are not personally connected, on the other hand, is considered public.

Dissemination of discriminatory content (Paragraph 2)

As ideology , the spread of which can be punishable, not only entire ideological systems (e.g. National Socialism ), but also every thought.

The element of “dissemination” presupposes actions that promote the expansion of the thought in question in the sense of advertising for it. A mere confession or approval of the frowned upon ideas is not enough. Showing the Hitler salute to like-minded people, for example, is not punishable.

"Disparagement" means the same as "Discrimination" in the first paragraph, and the term public is also the same.

Propaganda Actions (Paragraph 3)

The alternative of preparing for and participating in propaganda campaigns also requires active support for the propaganda campaigns. The presence as a listener or the mere possession of propaganda material is not sufficient for criminal liability. However, the criminal acts do not have to be public.

Public degradation or discrimination (Paragraph 4 at the beginning)

In the case of public degrading or discriminatory acts, the decisive factor for criminal liability is the meaning of the acts under the circumstances under which they were made. Violence or bodily harm can (also) violate Art. 261 bis StGB if it appears to be a racially discriminatory act for uninvolved third parties. Objective criticism of the attitudes or behavior of ethnic or religious groups, even combined with value judgments such as "criminal", is not punishable.

Denying or belittling crimes against humanity (para. 4 at the end)

The main application of publicly denying or playing down historically proven crimes against humanity is Holocaust denial . According to the case law of the federal court, but not according to that of the European Court of Human Rights (see below), denying the genocide of the Armenians is also a criminal offense. The perpetrator must act with the intention of discriminating against people on the basis of characteristics protected by Art. 261 bis StGB. Therefore, whoever acts out of ignorance of historical facts remains unpunished, but also those who only act out of the pursuit of profit (e.g. by selling propaganda material).

Active discrimination (Paragraph 5)

The offense of denial of services that are intended for the general public wants to enforce the basic social consensus that public segregation and apartheid are prohibited. The regulation applies to services that are basically open to everyone, such as the use of theaters, cinemas, hotels and restaurants, but also to services that are normally not offered to all people without distinction, such as job advertisements, apartment offers and marriage advertisements. If the offer of the service is directed from the outset only to a certain group (e.g. only to Swiss people), then this is punishable if this restriction is objectively unfounded and serves to circumvent the prohibition of discrimination.

history

Issue of the racism penal norm 1995

To enable Switzerland to join the International Convention for the Elimination of All Forms of Racial Discrimination of 1965, Art. 261 bis was added to the 1995 Criminal Code .

The penal norm is particularly controversial in the right-wing conservative political camp, where it is considered to be a drastic restriction on freedom of expression due to its open formulation . Proponents of the provision, on the other hand, claim that the freedom of expression is restricted, but that the protection of those affected against racial discrimination must take a back seat.

Several groups formed against the article:

The Swiss Democrats submitted with the support of Afm, the "Committee for a liberal legislation", the "Committee for Freedom in thought and speech" and the Ligue vaudoise a referendum against the legislation one.

In the referendum on September 25, 1994, the law was finally adopted with 54.6 percent of votes in favor.

After the referendum, Emil Rahm submitted petitions to amend the new law in 1997, 1999 and 2000.

The public debate about Art. 261 bis StGB flared up again in October 2006 after the then Swiss Justice Minister Christoph Blocher criticized the Swiss anti-racism penal norms in front of the media and the prosecution of Yusuf Halaçoğlu and Doğu Perinçek , two for denial, during a visit to Ankara Turks accused of the genocide of the Armenians in Switzerland, had regretted and at the same time announced that a change in the penal provisions was being examined by the Federal Department of Justice . Blocher's statements to the Turkish press met with fierce criticism in Switzerland and were reprimanded by all government parties with the exception of the Swiss People's Party . The entire Federal Council stated in a declaration that deleting the anti-racism criminal law was out of the question.

On August 7, 2007, the Swiss Democrats launched the federal popular initiative "For free expression of opinion - get rid of the muzzle!" through which the racism penal norm should be deleted from the penal code without replacement. The initiative did not materialize, however, as the required 100,000 signatures were not received within the deadline of 7 February 2009.

Extension to the prohibition of discrimination based on sexual orientation 2020

Result of the referendum on February 9, 2020 per district

On December 14, 2018, the parliament decided to add the discrimination ground of sexual orientation to the racism criminal norm articles 261 bis StGB and 171c of the military penal law . In the future, it should be possible to punish anyone who discriminates against people or groups on the basis of their sexual orientation or who refuses to do so.

Right-wing conservative and evangelical groups held a referendum against this change because they saw the law as a drastic restriction on freedom of expression and a censorship law . Opponents of the law argued that there were already enough laws to protect against defamation , abuse and defamation . Proponents countered that these laws only apply to individuals and not to a group as a whole (e.g. "the homosexuals").

In the federal referendum on February 9, 2020, 63.1% of all voters approved the extension of the penal norm, with a turnout of 41.7%. The Minister of Justice Karin Keller-Sutter then announced that the extended anti-racism penal norm could come into force quickly, possibly as early as July 1, 2020. According to the text of the law, the entire Federal Council must decide on the exact date of entry into force.

application

Holocaust deniers

Up to now (2006) it was mainly Holocaust deniers and neo-Nazis who were convicted under this provision. The Federal Court has in its Leitentscheiden to Art. 261 to u. a. decided that closed events with invited guests ( in casu: skinheads ) are also considered to be “public” within the meaning of the provision.

Denial of the Armenian Genocide

In 2005, the criminal proceedings initiated in Lausanne against the Turkish historian Yusuf Halaçoğlu (head of the Turkish Historical Society ) and the Turkish politician Doğu Perinçek caused diplomatic anger between Switzerland and Turkey due to the anti-racism law . The two defendants had denied the genocide of the Armenians at several events in Switzerland.

Perinçek was sentenced on March 9, 2007 by the Lausanne District Police Court to a 90-day fine of CHF 100 on probation and a fine of CHF 3,000. In addition, he had to pay the Swiss-Armenia Society (GSA) a symbolic satisfaction of 1,000 francs and assume the costs of the proceedings. The verdict was upheld by the canton of Vaud's criminal court in June 2007 and, in the final instance, by the Swiss federal court in December of the same year.

With judgment of December 17, 2013 by Perinçek v. Switzerland (Case 27510/08) the European Court of Human Rights (ECHR ) ruled that the conviction of Perinçek violated the freedom of expression guaranteed by Article 10 of the European Convention on Human Rights . The ECHR stated that the right to openly discuss controversial and sensitive issues was fundamental in tolerant and pluralistic societies. Switzerland then asked the Grand Chamber of the ECHR to reassess the case. The ECHR decided in June 2014 that it would deal with the case.

Other statements

In 2009 the Federal Supreme Court upheld a conviction for racial discrimination to the detriment of the “ German-Swiss ” ethnic group . The condemned had statements of the kind “German-speaking Swiss are not born with xenophobia and superhumanity, they are brought up to do this in Swiss xenophobia nationalist schools ... Switzerland is a cancerous lump on the surface of the earth and must be removed, no matter what it costs” published on a website. This judgment shows that racial discrimination can affect not only minorities but also the majority of the population.

The penal norm is also invoked on various occasions by private interest groups in order to have political statements perceived as racially discriminatory to be judged under criminal law. For example, Jürg Scherrer , former Bernese Grand Councilor of the Auto Party and former police director of Biel , had to appear in court several times because of his disparaging remarks about black Africans . In April 2017, the Federal Supreme Court upheld the conviction of SVP General Secretary Martin Baltisser and his deputy Silvia Bär for a poster on the mass immigration initiative that read “Kosovars slash Swiss people”.

See also

swell

Web links

Individual evidence

  1. ↑ Stratenwerth / Wohlers, N 1 m. Nw .: BGE 123 IV 206, 126 IV 24, 128 I 222, 130 IV 118
  2. ↑ a b BBl 2018 7861
  3. ↑ Stratenwerth / Wohlers, N 2 m. Nw .: BGE 123 IV 207, 124 IV 124
  4. ↑ Stratenwerth / Wohlers, N 2 m. Nw .: BGE 123 IV 202
  5. ↑ Judgment 6B_715 / 2012 of the Federal Court of February 6, 2014, intended for publication
  6. ↑ Stratenwerth / Wohlers, N 4 m. Nw .: BGE 124 IV 124
  7. ↑ Stratenwerth / Wohlers, N 5 m. Nw .: BGE 123 IV 207
  8. ↑ judgment of February 12, 1997, SJZ 93/1997 p. 205
  9. ↑ Stratenwerth / Wohlers, N 6 m. Nw .: BGE 119 Ia 183, 123 IV 209, 124 IV 124
  10. ↑ Stratenwerth / Wohlers, N 6 m. Nw .: BGE 130 IV 119
  11. ↑ a b Stratenwerth / Wohlers, N 9 m. Nw.
  12. ↑ Judgment 6B_697 / 2013 of the Federal Court of April 28, 2014 (intended for publication)
  13. ↑ Stratenwerth / Wohlers, N 11 m. Nw.
  14. ↑ Stratenwerth / Wohlers, N 11 m. Nw .: BGE 133 IV 315, 126 IV 25, 131 IV 26
  15. ↑ Stratenwerth / Wohlers, N 15f. m. Nw .: BGE 126 IV 26, 121 IV 85, 127 IV 205
  16. ↑ Stratenwerth / Wohlers, N 17. m. Nw.
  17. ↑ Stratenwerth / Wohlers, N 1
  18. ↑ Zentralplus.ch, "SVPler railed against« political epidemic »"
  19. ↑ Damir Sekenderovic, "The Radical Right in Switzerland", Mountain Haan Books 2009, published with the support of the Swiss National Science Foundation, S. 294f
  20. ↑ The young henchmen of the old racists: They are young, right-wing - and on the wrong track. In: SonntagsBlick , July 3, 1994.
  21. ^ Strike together. The referendum on an anti-racism law reveals the abysses of xenophobia . In: Der Spiegel . No. 38 , 1994 ( online ).
  22. ^ Votes for the vote on the "Anti-Racism Act". Archived from the original on October 2, 2015 ; accessed on January 1, 2014 .
  23. ↑ Template No. 414 , amendment of June 18, 1993
  24. ↑ Federal referendums: “Asylum and foreigners policy” - interactive, spatial analyzes ( memento of the original from February 22, 2011 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.media-stat.admin.ch
  25. ↑ 97.2028 - Petition Rahm Emil, Hallau. Protection of freedom of expression. National Council - Spring 1998 session - Sixteenth session. Official Bulletin - The minutes of the National Council and the Council of States, March 20, 1998, archived from the original on September 28, 2011 ; Retrieved April 12, 2011 .
  26. ↑ 99.2007 - Petition Rahm Emil. Interpretation of Article 5 Paragraph 4 of the new Federal Constitution. Council of States - Spring 2000 session - Eleventh session. Official Bulletin - The minutes of the National Council and the Council of States, March 23, 2000, accessed on April 12, 2011 .
  27. ↑ 00.2012 - Petition Rahm Emil. Article 261bis of the Criminal Code. Racism criminal article. Council of States - summer session 2000 - twelfth session. Official Bulletin - The minutes of the National Council and the Council of States, June 22, 2000, accessed on April 12, 2011 .
  28. ↑ a b Blocher's statements in Turkey provoke Switzerland . Swissinfo , October 5, 2006
  29. ^ Government reprimands Christoph Blocher . Swissinfo , October 18, 2006
  30. ↑ Federal popular initiative "For freedom of expression - get rid of the muzzle!"
  31. ↑ Explanations of the Federal Council on the referendum of February 9, 2020, page 22
  32. ↑ Explanations of the Federal Council on the referendum of February 9, 2020, page 21
  33. ↑ Prohibition of discrimination based on sexual orientation. In: bfs.admin.ch. February 9, 2020, accessed February 10, 2020 .
  34. ↑ Yes to the protection of homosexuals from discrimination. In: vote.tagesanzeiger.ch. February 9, 2020, accessed February 10, 2020 .
  35. ↑ Keller-Sutter: "Those who remain respectful need not be afraid". In: derbund.ch. February 9, 2020, accessed February 10, 2020 .
  36. ↑ Leading decisions on Art. 261 bis
  37. ↑ BGE  130 IV 113
  38. ↑ Judgment of the Tribunal de Police of the Lausanne district (PDF; 97 kB) accessed February 14, 2009
  39. ↑ Decision of the Court of Criminal Investigation of the Canton of Vaud (PDF; 89 kB) accessed February 14, 2009
  40. ↑ Conviction of genocide denier Perincek confirmed , swissinfo , December 19, 2007, accessed June 18, 2012
  41. ↑ Judgment Perincek v. Switzerland - unjustified criminal conviction for challenging the legal characterization of the Armenian genocide , ECHR press release of December 17, 2013, accessed on December 17, 2013
  42. ↑ Genocide verdict is being reviewed. In: Tages-Anzeiger .ch / Newsnet from June 3, 2014
  43. ↑ 6B_591 / 2008, 6B_592 / 2008, 6B_593 / 2008 / sst, judgment of December 26, 2008. Federal Supreme Court, Criminal Law Department, accessed on February 11, 2020 .
  44. ↑ Critical expression is not racial discrimination. In: NZZ.ch . November 12, 2004, accessed February 11, 2020 .
  45. ^ Richard Clavadetscher: SVP's Schlitzer poster is racist. In: St.Galler Tagblatt Online . April 13, 2017. Retrieved May 7, 2017 .