Facts
The case concerns a lawsuit filed by W. and the Fondation W. against Z. for various defamatory statements he made in a letter to the editor and during two mediation negotiations. The Cantonal Court of St. Gallen found Z. guilty of repeated and continued defamation, fined him CHF 2,000, and ordered the publication of the judgment. Z. then filed a federal nullity appeal against the judgment of the Cantonal Court, requesting to be acquitted of guilt and punishment.
Considerations
The Federal Supreme Court upheld the appeal. It stated that defamatory statements in mediation proceedings can be justified under certain conditions by Art. 32 of the Swiss Criminal Code (justification ground of legal duty) in conjunction with the rules of mediation law. This includes that the statements are limited to what is necessary to explain the party's position, are factual, and are not made in bad faith. Assumptions must be identified as such.
The Federal Supreme Court emphasized that the function of the mediation procedure is to bring about a reconciliation of the parties. For this, it is necessary that the parties can discuss the…