Switzerland’s supreme court has ruled that making a Nazi salute in public does not violate the country’s anti-racism law, provided the person “is only expressing their own Nazi convictions”. The defendant was a member of a rightwing extremist group.
The president of the Federal Commission Against Racism has expressed disappointment at the court's decision.
The April 28 ruling by the Lausanne-based Federal Court, released on Wednesday, overturned a lower court’s conviction last year in the case of a man charged with racial discrimination after he took part in a demonstration in 2010.
Apart from the 150 participants and police at the demonstration organised by the Party of Nationally Orientated Swiss People (PNOS) on the Rütli Meadow above Lake Lucerne, some by-standers also witnessed the gesture.
Under Swiss anti-racism law, only racist acts committed in public are criminal offences. The latest ruling has put a finer interpretation on the law, stating that the gesture is a crime only if someone is using it to try to spread racist ideology to others.
“According to the law, spreading racist ideology such as national socialism is a prosecutable racial discrimination offence. The word ‘spreading’ is taken to mean advertising or propaganda,” a statement released by the court read.
This condition did not apply to the Rütli Meadow incident, the judges ruled, because the man was not trying to win others over to the ideology. The gesture is a criminal offence in Germany, Austria and the Czech Republic.
President of the Federal Commission Against Racism, Martine Brunschwig-Graf told swissinfo.ch she was very disappointed in the Federal Court ruling.
“Whatever the judgment, it remains totally unacceptable to carry out activities of this kind. It is not just a judicial problem but a societal problem if the impression is created that such behaviour is permitted,” she said.
Brunschwig-Graf added that the ruling was indicative of the Federal Court’s tendency to apply the anti-racism law restrictively with regard to freedom of expression.
More than a quarter of the anti-racism cases that have come before the courts in Switzerland over the past two decades have involved offences against the Jewish minority. To date, people convicted of giving the “Heil Hitler” salute in public have usually received fines.
There are 17 to 19 prosecution under the anti-racism law per year. Most of the offenders have been private individuals but politicians, journalists or media outlets, extreme right activists and officials have also been obliged to face legal consequences for their actions.
The anti-racism law is not without its detractors. The right-wing Swiss People’s Party, which complains that the law has led to a “culture of denunciation and a state ruled by judges”, recently submitted a motion to parliament calling for the law to be scrapped.