Facts

Context and parties involved: In the autumn of 1997, a heated public debate took place in Valais regarding the amendment of criminal provisions on abortion. Three female politicians, X. (vice-president of the municipality of Sion), [Y.] and Z. (deputies to the Valais Grand Council), publicly supported the so-called "Riklin" model, which proposed the legalisation of abortion under certain conditions. The Swiss Christian Democratic Party (PDC) adopted this model in August 1997, sparking strong reactions within its Valais section. The Pro-Life working group of the Valais PDC, of which [A.] was a member, defended the maintenance of the current legal provisions and opposed the time-limit solution proposed by the Legal Affairs Committee of the National Council.

Anonymous poster campaign: [A.], a member of the Pro-Life group, decided to launch an anonymous poster campaign to influence the political debate ahead of the cantonal party assembly scheduled for late November 1997. The aim was to target female politicians, accused of being promoted by the parties to make the idea of abortion acceptable. [A.] asked [B.] to provide him with documents on the subject. [B.], president of an association engaged in the fight against pornography, occultism and drugs, provided [A.] with a brochure entitled "My chance to exist and to live the wonderful gift of life" as well as newspaper clippings containing photographs of X., [Y.] and Z.

[A.] selected the photographs and texts, the German translation of which was provided by L. He handed the draft poster to [C.], editor of the association's bulletin, who designed the layout using a computer and a scanner. [C.] modified the poster text at A.'s request. The printing of the posters (format 43 x 30 cm) was entrusted by [A.] to [M.], a publisher, who subcontracted the execution to his son [N.], a printer. Two thousand posters, including eight hundred in German, were delivered to [A.] on 6 November 1997. The posters, which were anonymous, contained provocative messages such as "They want a culture of death in Switzerland!", accompanied by a photograph of a bloodied foetus of about 20 weeks' gestation, and phrases such as "Poison it, cut it up with a curette or leave it to die in a bin?". The names and political affiliations of X., [Y.] and [Z.] were also mentioned, followed by the phrase "Every civilisation gets the filth it deserves".

Distribution of the posters: [A.] distributed the posters among about twenty people, including [B.], [D.], [E.], [F.], [G.], [H.], I., [J.] and [K.], all members or supporters of the association. These individuals, who met in Riddes on 9 November 1997, pasted the posters in different parts of the canton, including on advertising panels owned by the Société générale d'affichage (SGA) or bus shelters. The operation, carried out anonymously and discreetly, was completed on 10 November. On 11 November, [A.] denied any involvement in the campaign when questioned by a journalist. Most of the posters were removed by the gendarmerie on the same day.

Criminal and civil proceedings: X., [Y.] and [Z.] filed a complaint for defamation and slander, joining the proceedings as civil parties and claiming damages of 3,000 francs each for moral harm. Various owners of buildings and installations on which the posters had been affixed also filed complaints for property damage. The criminal proceedings were directed against [A.], [B.], [C.], [D.], [E.], [F.], [G.], [H.], I., [J.], [K.], [N.], [M.] and L. On 27 September 2000, the district judge of Sion acquitted [M.], [N.] and L., found [A.] guilty of insult and property damage, [C.] of complicity in insult, and convicted the other defendants of complicity in insult and property damage. Fines were imposed, and the convicted persons were ordered to pay jointly to the SGA the sum of 7,209.10 francs and to each of the complainants an indemnity of 500 francs. On appeal by the complainants and the defendants, the Criminal Appeal Court II of the Valais Cantonal Court convicted, on 17 September 2001, [A.] of defamation and property damage to 10 days' suspended imprisonment for three years and a fine of 2,000 francs. [C.] was convicted of complicity in defamation to a fine of 1,000 francs, and the other defendants to fines of 1,000 francs each for complicity in defamation and property damage. The indemnities for moral harm were increased to 4,000 francs for each of the complainants. The convicted persons appealed to the Federal Supreme Court against this judgment, seeking its annulment and the referral of the case to the Cantonal Court for a new decision. The Federal Supreme Court partially allowed the appeal for nullity on the criminal action and dismissed, to the extent that it was admissible, the appeal for nullity on the civil action.

Considerations

Assessment of the attack on honour: The Federal Supreme Court recalled that statements on political issues are of particular importance and that punishable attacks on honour are only admitted with restraint in the context of a political debate. However, this restraint does not apply when the author acts anonymously, depriving the victims of the opportunity to respond. In the present case, [A.] conducted an anonymous campaign, which precludes the application of case law favourable to political debates. The poster, analysed as a whole, goes beyond criticising the political activity of the complainants and accuses them of subscribing to a "culture of death", suggesting that they encourage degrading treatments and lack moral sense. The photograph of a bloodied foetus, associated with violent abortion methods, reinforces this accusation and exposes the victims to contempt as human beings. Thus, the attack on honour is established.

Legal qualification of the offence: The Federal Supreme Court distinguishes between defamation (allegation of fact) and insult (value judgment). In the present case, the accusation of wanting a "culture of death", supported by the photograph of a foetus, constitutes an allegation of fact and not a mere value judgment. Consequently, the offence is qualified as defamation within the meaning of Art. 173 SCC. The term "filth", although recognised as insulting, has no independent significance in the context of this defamation.

Lack of proof of truth or good faith: [A.] cannot rely…