Facts
The complainant X. sent a copy of a book written by G. containing racially discriminatory statements from his place of residence in Switzerland to seven persons in Germany in early 1995. As a result, X. was found guilty of racial discrimination within the meaning of Art. 261bis para. 2 and para. 4 of the Swiss Criminal Code (StGB) by the High Court of the Canton of Zurich on March 24, 1999 and was fined 18,000 Swiss francs.
X. then filed a federal nullity appeal to have the judgment overturned.
Considerations
The Federal Supreme Court's Court of Cassation decided that X. did not commit a criminal offense under Art. 261bis StGB by sending the book to seven addressees in Germany, as the criterion of publicity was not met.
According to the Federal Supreme Court, a statement is only public if it can be perceived by an indefinite number of persons or a larger group of persons not connected by personal relationships. The delivery of the book to seven persons, some of whom X. had only loose contacts with, does not fulfill this requirement.
A conviction for attempted public dissemination of the racially discriminatory ideologies is also not considered, as even if X. had tried to induce individual addressees to further disseminate the content of the book to a larger group of persons, this would not be…