Facts
In June 1959, a German translation of the Chinese novel "Jou Pu Tuan" by Li Yü was published by the Zurich publisher "Die Waage". The Federal Prosecutor's Office then initiated criminal proceedings against the responsible publisher, Felix Wiesner, for obscene publication under Art. 204 of the Swiss Criminal Code. Although the District Attorney's Office in Zurich discontinued the criminal proceedings, it ordered the destruction of the confiscated 1,480 book copies, the typesetting, and the manuscript.
Wiesner filed an appeal against this order, which was rejected by the Appeals Commission of the Prosecutor's Office. Thereupon, Wiesner filed a nullity appeal with the Court of Cassation of the Federal Supreme Court, requesting the release of the confiscated items or the referral of the case for further investigation.
Considerations
The Court of Cassation dismissed the nullity appeal. It concluded that the novel "Jou Pu Tuan" is to be considered obscene within the meaning of Art. 204 of the Swiss Criminal Code in large parts. The detailed descriptions of the protagonist's sexual excesses and numerous explicit depictions of sexual intercourse in words and images violated the sense of morality in an unacceptable manner. The author's alleged moral intention was also unable to outweigh the overall obscene effect of the work.
Although it was recognized that the novel has a certain scientific and literary value, this was considered to be of such subordinate importance to the…