Facts
The Attorney General of the Canton of Bern brought charges against [X.] and [Y.] for racial discrimination. [X.] had organized an event in a forest hut, to which he had invited members of the association [Z.] as well as other persons. [Y.] gave a lecture there on the topic "The Origins of the SS and the Waffen-SS". The High Court of the Canton of Bern acquitted the accused, as it did not classify the event as public within the meaning of Art. 261bis of the Swiss Criminal Code.
The Attorney General then filed a federal nullity appeal with the request to set aside the judgment and to remand the case to the lower court for a new assessment.
Considerations
The Federal Supreme Court set aside the judgment and remanded the case to the lower court for a new assessment. It stated that publicity within the meaning of Art. 261bis of the Swiss Criminal Code is not to be judged solely on the basis of the number of participants. Rather, the decisive factor is whether the statements and conduct can still be attributed to the private sphere or whether they have exceeded it.
The Federal Supreme Court clarified that all statements and conduct that do not take place in the family and circle of friends or in an environment characterized by…