Facts
The case concerns a matter in which two individuals, X and Y, were accused of publicly displaying an obscene image and offending the religious convictions of others. The image in question depicted a naked woman crucified, with her legs spread apart and her genitalia visible. The accused were acquitted by the cantonal court, but the decision was contested by the public prosecutor of the canton of Basel-Stadt.
The facts took place on Barfüsserplatz, where the accused displayed the image in question as part of an artistic demonstration. The image was considered obscene by some and offended the religious convictions of other individuals.
Considerations
The Federal Court examined the question of whether the displayed image was obscene within the meaning of Article 204 of the Swiss Criminal Code (SCC). The Court considered that obscenity must be evaluated based on the effect produced on the unsuspecting viewer and that the circumstances in which the image is displayed can influence this effect.
The Court also examined the question of whether the image offended the religious convictions of others within the meaning of Article 261 of the SCC. The Court considered that the protection of religious conviction is a fundamental right and that artists must respect the limits set by the law.
The Court ultimately decided that the displayed image was not obscene within the meaning of Article 204 of the SCC, but that it offended…