Facts

By judgment of 9 September 1998, the Criminal Court of the District of Veveyse convicted X. of racial discrimination (Art. 261bis SCC) and sentenced him to 4 months' imprisonment, suspended for 3 years, and ordered the confiscation (Art. 58 SCC) of the seized documents, with the exception of the correspondence with the State Chancellery.

The acts found proven were the following

  • a) X. sent to various persons some fifty order forms for the Rudolf report, enclosed with the document "Holocauste & révisionnisme, 33 questions et réponses", which denied the existence of a plan to exterminate Jews and Gypsies, the absence of a written order of extermination, and presented the deaths at Auschwitz as due mainly to typhus and detention conditions.
  • b) X. wrote, signed and posted about a hundred times in French-speaking Switzerland, at the time of the debate on Jewish funds, the text "Pour la liberté d'expression et d'information", which disputed the reality of the crime and cited the works of Roger Garaudy and the Rudolf report.
  • c) X. posted about a hundred posters reproducing a sentence taken out of context from Nahum Goldmann's book: "La vie juive est composée de deux éléments: ramasser de l'argent et protester".

The court of first instance applied Art. 261bis para. 4 SCC to acts a and b, and para. 1 to act c. It acquitted X. of importing and distributing the Rudolf report (Art. 27 SCC) and discharged him of a charge of fraud.

Seised of an appeal, the Criminal Court of Appeal of the Fribourg Cantonal Court, by judgment of 25 January 1999, partially upheld the appeal. It held that para. 4 applied only to statements addressed directly to the persons targeted, and therefore applied para. 1 to the three types of conduct. The confiscation and the sentence were confirmed.

X. lodged a appeal for annulment with the Federal Supreme Court, contesting his conviction for racial discrimination and the confiscation, and requesting legal aid. The Federal Supreme Court, Criminal Cassation Division, ruled on 3 November 1999 and dismissed the appeal.

Considerations

As to the legal classification, the cantonal court relied on ATF 124 IV 121 to consider that the only difference between paras. 1 to 3 and para. 4 of Art. 261bis SCC lay in the recipient of the message: paras. 1 to 3 would target propaganda addressed to third parties, while para. 4 targets offence caused directly to the persons concerned. The Federal Supreme Court notes that this passage could not be read as excluding para. 4 in this case, since the question had not been examined in depth there.

The Federal Supreme Court recalls that Art. 261bis SCC protects the human dignity of members of a race, ethnic group or religion. Paras. 1 to 3 punish racial agitation, aimed at an indeterminate number of persons, whereas para. 4 sanctions a real and direct attack against one or more members of a group because of their membership. The legislature expressly placed the denial, gross minimisation or justification of genocide in the second sentence of para. 4, which would be superfluous if such conduct already fell under para. 1. It is therefore not enough that the perpetrator addresses third parties to exclude para. 4. The public nature of the act must nevertheless be established, which is the case given the number of recipients and posters.

As regards the document "Holocauste et révisionnisme", it denies or grossly minimises the genocide of Jews, a group targeted because of its religion. The racist motives of the author, whose antisemitism is apparent from all of his acts, are established by the cantonal court; the doctrinal controversy over the necessity of racist motives may therefore remain undecided. The conditions of the second sentence of para. 4 are met.

As to the text "Pour la liberté d'expression", the interrogative…