Update: 30.03.2016

Bernese Cantonal Court of Appeal confirms verdict against SVP party leaders for racial discrimination

On 14 March 2016 the Bernese Cantonal Court of Appeal confirmed the verdict against Swiss People’s Party (SVP) general secretary Martin Baltisser and his deputy Silvia Bär for violating the anti-racism norm. Both were sentenced to conditional fines, because the so-called “stabber” ad had collectively degraded the Kosovar ethnic group by using the slogan “Kosovars slash the Swiss”. A year before, the Bernese regional court had come to the same conclusion.

The “stabber“ ad

The ad was published by the SVP during the referendum campaign on the mass immigration initiative in 2011. It shows black shadows marching across a Swiss flag, the title reads: “These are the consequences of uncontrolled mass immigration: Kosovars slash the Swiss!” and “Stop mass immigration”. The advertisement referred to a violent crime which had occurred in Interlaken a couple of days before the advertisement appeared. Several newspapers published the ad, which was also accessible on the SVP website.

Two Kosovars filed a complaint for violation of the Anti-Racism Norm (Art. 261 bis1). At first the Bernese law enforcement authorities suspended the proceedings, but the Cantonal Supreme Court did not accept this decision. The Office of the Public Prosecutor finally brought charges against Baltisser and Bär and also against SVP party president Toni Brunner, whose parliamentary immunity was not lifted.

On the judgement of the first instance in April 2015

Cheap propaganda against Kosovars and for the initiative

According to press reports, the lawyer of the private prosecution said that the advertisement depicts Kosovars as enemies of Switzerland. Although during the criminal act only one Kosovar had attacked his victim with a knife, the advertisement's creators deliberately and purposefully used the plural when referring to the perpetrator's nationality and thereby contributed to denigrate and defame the ethnic group as a whole. The lawyer continued to say that the poster represented cheap propaganda against a minority that has been targeted by right-wing political forces for years. He continued to say that the advertisement was an extraordinary monstrosity that evoked memories of “dark ages”.

In his plea the defendant’s lawyer maintained that the term “Kosovars” does not denote an ethnical group (as required by the definition of the offence) but rather an area of origin or a nationality. The advertisement did not decry Kosovars as criminals in general but was clearly referring to an individual case.

The Bern regional court came to the conclusion that the SVP party leaders had accepted the fact that the advertisement created a hostile atmosphere against Kosovars. The judge found that the statement in the advertisement's title was an undifferentiated and unlawful generalisation used with the sole purpose to destroy the reputation of a whole group.

The SVP considers the freedom of expression endangered by the verdict

The SVP declared that the court’s decision was politically motivated. They considered the judgement to constitute a severe attack on the freedom of expression in Switzerland. The party has not yet decided whether it will appeal against the verdict. It wants to await the written judgement before deciding on further steps. At present, the verdict has not yet been made public.

First appraisal of the judgement

In an online article of 1 Mai 2015, the NZZ quotes Gerhard Fiolka, an associated professor in International Criminal Law at the University of Fribourg who has done research on the Anti-Racism Norm. Fiolka was not surprised by the verdict: «By describing Kosovars generally as violent criminals and at the same time propagating not to let this group enter our country, this group of foreigners is no longer perceived to have equal rights to live in Switzerland. This violates human dignity according to doctrine and jurisdiction». However, Fialka also thinks that the publication of the advertisement was a borderline case.

Commentary by Humanrights.ch

For the first time a court has declared a SVP political advertisement illegal and has held the party leadership responsible for it. Over the past few years the party has repeatedly published ads and banners that have pushed the legal limits. The SVP is known to use an advertising language that greatly simplifies and generalises complex matters. By doing so the SVP accepts that their successful propaganda is always done to the detriment of some minority of the Swiss society. Up to now, this political marketing strategy has paid off well. But now a court has drawn a limit.

The written judgement will provide more details about the legal reasoning. What is clear is that the SVP has the possibility of taking the verdict to the next judicial level, and, should all Swiss instances support the verdict, could even turn to the European Court of Human Rights – thanks to the ECHR.

Documentation

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