ECHR orders Switzerland to pay damages over ‘verbal racism’ case

A general view of the entrance of the European Court of Human Rights (ECHR) in Strasbourg, France swissinfo.ch

Europe’s top human rights court has ordered Switzerland to pay compensation to a Swiss anti-racism group for infringing its freedom of expression. Swiss courts had condemned the group and demanded it remove online comments citing a speech by a Thurgau politician as “verbal racism”. 

The Strasbourg-based European Court of Human Rights ruled unanimously on Tuesday that article 10 (freedom of expression) of the European Convention of Human Rights had been infringed in the case of GRA Stiftung Gegen Rassismus und Antisemitismus (The GRA Foundation against Racism and AntiSemitism) against Switzerland. 

In November 2009, the NGO had reported on a meeting at Frauenfeld by the youth wing of the Swiss People’s Party, which was held in the run-up to the referendum to ban the building of new minarets. 

After the meeting, the NGO posted on its website an entry entitled “Chronology – verbal racism”. It cited the party’s own report of a speech at the meeting by B.K., the head of the local youth branch of the Swiss People’s Party. He was quoted as saying that it was time to stop the expansion of Islam, that “the Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures”, and that the prohibition of minarets would be an expression of the preservation of national identity. 

+ The ban on new minarets was approved by a majority of Swiss voters in 2009

B.K. had called for the online entry to be removed but GRA refused. B.K. then took the NGO to court over the protection of personality rights. A Frauenfeld court dismissed the complaint in 2011 but a Thurgau district court ruled in favour and told the NGO to remove the comment. In August 2012, the Federal Court backed B.K. stating that “anyone who pronounces himself against the spread of Islam in Switzerland without value judgement is not racist”. It concluded that by calling the Thurgovian politician’s remarks “verbal racism”, the GRA unlawfully violated his honour. 

In its judgement on Tuesday the ECHR ruled in favour of the GRA stating that there had been a violation of freedom of expression. The court said that, in the context of the debate on the minaret initiative, the use of the words “verbal racism” by the GRA “was not devoid of factual basis”.

The court said the NGO had never suggested that B.K.’s statements could be classified as criminal under domestic racial discrimination legislation and were not a gratuitous personal attack on B.K. or an insult.

The ECHR added that both the organisation’s article and B.K.’s speech had been part of an intense public debate about the minaret ban referendum. In addition, B.K., as a person active in politics and one who had been speaking as a proponent of the ban, should have shown a “higher degree of tolerance towards potential criticism by people or organisations with opposing views”. 

The EHCR concluded that the Swiss courts had failed to give “due consideration to the principles and criteria laid down in its case-law when balancing the right to respect for private life and the right to freedom of expression and had therefore exceeded the room for manoeuvre afforded to them”.

It ordered Switzerland to pay €5,000 (CHF5,860) to GRA for damages and to cover court costs and expenses, amounting to €30,000.