On 9 January 2018, the European Court of Human Rights decided against a decision by the Federal Tribunal, Switzerland’s highest court, and demanded the Swiss government pay 35,000 euros.
The case relates to the publication of a speech leading up to the Swiss vote to ban the construction of minarets in 2009.
On 5 November 2009, ahead of a vote to ban the construction of minerets, Benjamin Kasper, president of the youth wing of the UDC/SVP in Thurgau, gave a speech at a demonstration in the town of Frauenfeld. In his speech he emphasised that it was time to stop the expansion of Islam. The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot allow itself to be replaced by other cultures, he said. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.
An account of the event was later posted on the party’s website.
The Foundation against Racism and Anti-Semitism (GRA) followed by posting an account of the demonstration and Benjamin Kasper’s comments on its website, which it classified as “verbal racism”.
On 29 November 2009, the vote to ban the construction of minarets was accepted by 57.5% of Swiss voters.
On 21 August 2010, Benjamin Kasper went to court to compel GRA to remove the post from its website claiming it’s classification as verbal racism was a damaging personal attack.
His request was initially dismissed by the Kreuzlingen District Court, but then granted by the Thurgau Cantonal High Court. After being ordered to take down the post or suffer a fine of CHF 10,000, GRA appealed to the Federal Tribunal. In 2012, the Federal Tribunal decided to uphold the Cantonal High Court ruling.
The Federal Tribunal decided that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity. The Tribunal decided that for the average listener, Kasper’s comments did not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims.
In 2013, GRA decided to challenge the Federal Tribunal ruling at the European Court of Human Rights, which decided in favour of GRA this week.
While the definition of racism was a central consideration in Swiss courts, it had little bearing on the decision by the European Court of Human Rights. The Court’s decision was focused on freedom of expression and considered GRA’s freedom to exercise its “public watchdog” role more important than Benjamin Kasper personality rights. It also said that politicians are knowingly exposed to public scrutiny and must therefore display a higher degree of tolerance to criticism.
30,000 of the 35,000 euros requested from the Swiss government is to cover costs. The remaining 5,000 is for damages.
European Court of Human Rights judgement (in English)