Facts
The appellant, a police officer, had arrested an Algerian asylum seeker on April 16, 2007, on suspicion of pickpocketing and insulted him as a "dirty foreigner" and "filthy asylum seeker". The Criminal Court of the Canton of Basel-Stadt found the appellant guilty of racial discrimination (Art. 261bis para. 4 SCC) and sentenced him to a fine. The appellant requested the annulment of the judgment and his acquittal.
The Court of Appeal of the Canton of Basel-Stadt confirmed the first-instance decision. The appellant filed a criminal appeal and requested the annulment of the judgment and his acquittal.
Considerations
The Federal Court had to decide whether the appellant's statements fulfilled the offense of Art. 261bis para. 4 first half SCC. The lower court had argued that the terms "foreigner" and "asylum seeker" in this case were to be understood as collective terms or synonyms for non-European races and ethnicities.
The Federal Court did not follow this opinion. It argued that the offense of Art. 261bis para. 4 first half SCC requires that the perpetrator demeans or discriminates against a person or group of persons "because of their race, ethnicity, or religion". The terms "foreigner" and "asylum seeker" are not collective…