Facts

The complainant Jürg Scherrer, at the time President of the Freedom Party (FPS), published on 3 April 2001 on the party’s own website a media release (No. 156) in which he made, among other things, the following statements:

  • Immigrants from Kosovo had an unproportionately high propensity for violence and criminality in Switzerland.
  • The FPS demanded the repatriation of all immigrants from Kosovo within the originally stipulated deadline.
  • After a 12-year period of residence, immigrants could demand practically unconditional naturalisation, with the FPS not wanting any new Swiss citizens with a criminal record.

The Presiding Judge of Court District II Biel-Nidau convicted Scherrer on 13 May 2003 of publishing racially discriminatory statements under Article 261bis para. 4 SCC and imposed a fine of 2,000 Swiss francs. The Superior Court of the Canton of Bern upheld this judgment on 4 November 2003.

Scherrer then filed a federal nullity appeal with the Federal Supreme Court and requested the quashing of the superior court’s judgment. The Attorney General of the Canton of Bern requested in his statement of 6 August 2004 that the appeal be dismissed.

Considerations

The Federal Supreme Court first examined whether the complainant’s statements met the elements of the offence of racial discrimination under Article 261bis para. 4 SCC. This provision protects the dignity of individuals or groups on the basis of their race, ethnicity or religion and prohibits their disparagement or discrimination in a manner violating human dignity. The decisive factor is whether the statements contain a blanket denigration of the group concerned or whether they are limited to objective criticism.

The lower courts had classified the media release as a blanket disparagement of Kosovo Albanians, since it attributed to them a disproportionately high crime rate. The Federal Supreme Court, however, clarified that the interpretation of a statement is not to be measured solely by its wording, but must be assessed in the overall context and taking into account the understanding of an unbiased average reader. It must be borne in mind that political statements may often be formulated in a simplified or exaggerated manner, provided they do not have a blanket discriminatory effect.

The contested passage did indeed contain the assertion of a disproportionately high crime rate among Kosovo Albanians, but the addition of “among others” suggested that other groups might also be affected. Moreover, the demand for repatriation was linked to criticism of the Federal Council’s asylum policy, without this implying a general denigration of the group. The statements were…