Nazi salute not prosecutable as a sign of political conviction
In its judgement of 28 April 2014 the Swiss Federal Supreme Court drew a fine line between the punishable and not punishable use of the Nazi salute. Showing a Nazi salute in public is not punishable according to Art 261bis SCC (Swiss Criminal Code) if it mainly serves as a sign to profess the own political convictions, namely the Nazi ideology. This is the case because, in Switzerland, neither Nazi convictions nor the public profession to them are punishable by law. This legal situation belies all right-wing populists who continue to argue that the law against racism is a law defined by a justice system based on attitudes.
Under what circumstances is the Nazi salute punishable?
There are two types of cases in which a Nazi salute becomes punishable: On the one hand, if it serves to publicly promote Nazi ideology. This applies in particular to right-wing marches and other manifestations which are aimed at a public for propaganda reasons. On the other hand, if the Nazis targeted at persons because of their race, ethnicity or religion. Should the affected members of minorities be able to plausibly prove that this act was directed against their human dignity, this is a punishable offence according to Art 261bis SCC.
This means that, unlike in some neighbouring countries, in Switzerland it is not generally prohibited to show a Nazi salute in public. But still, in most relevant cases it is punishable.
Delicate legal issue
The present judgement by the Federal Supreme Court has probably caused so much attention because a lot of patriotic and nationalist symbolism is attached to the Rütliwiese where the happenings took place. In addition, the Nazi salute is despised and scorned by the broad public because of its unambiguous historical meaning.
But this broad moral rejection of the issue does not show in existing law. Therefore, the judgement by the Federal Supreme Court makes sense from a legal point of view, since it has been sufficiently explained.
Does Art 261bis need to be revised?
In the aftermath of the judgement politicians have once more called to include into Art 261bis SCC a general ban of unambiguously Nazi symbols. But such a broadly designed legal project on the ban of racist symbols stood was buried between 2004 and 2010, mainly because of the widespread scepticism voiced during consultation procedure.
In various problem areas it has become apparent that the present legal norm against racism Art 261bis SCC suffers from numerous deficiencies of legal nature and concerning content. It would nevertheless be a mistake to call for a total revision of Art 261bis SCC, since this would represent a risk with an uncertain outcome in view of the fundamental opposition to Art 261bis SCC by the political right.
- BGer Urteil 6B_297/2013 vom 28. April 2014
- Öffentlicher Hitlergruss nicht in jedem Fall strafbar
Media release by the Federal Supreme Court, 21 May 2014 (pdf, 2 pages in German)
- Abschreibung der Motion 04.3224 der RK-N vom 29. April 2004
Report by the Federal Council, 30 June 2010 (pdf, 12 pages in German)
- Wann der Hitlergruss erlaubt ist
Tages-Anzeiger, 21 May 2014 (in German)
- Skandal-Urteil des Bundesgerichts: Hitlergruss auf Rütli erlaubt!
Blick, 22 May 2014 (in German)
- «Nazi-Symbole gehören verboten!»
Blick, 22 May 2014 (in German)
- «Strafrecht soll eine scharfe Waffe sein»
Interview by swissinfo with Strafrechtler Marcel A. Niggli, 27 May 2014 (in German)