Public incitement of racial hatred and discrimination has been prohibited by law in Switzerland since 1995. Article 261bis of the Swiss Criminal Code specifies that the freedom of speech does not apply in such cases.
In 1994, article 261bis of the Swiss Criminal Code (StGB), which stipulates that discrimination and incitement of hatred is a criminal offence, was accepted in a nationwide referendum by 54.6% of the voting population. Switzerland wanted to add this offence to its Criminal Code to be able to join the United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination ICERD. A referendum was then called for against this new law, only to be rejected in the popular vote. In 2020, also following a referendum vote, the law was supplemented to include the term «sexual orientation».
Protection against discrimination due to race, ethnicity, religion or sexual orientation
The anti-racism norm protects people who are discriminated, threatened or disparaged due to their skin colour, ethnicity or religion in a way that robs them of their dignity. Article 261bis of the Swiss Criminal Code prohibits specific and particularly serious forms of such discrimination in public: incitement of hatred or discrimination, systematic libel or slander, the organisation of propaganda activities, disparaging or discrimination through certain forms of behaviour — be it oral or in writing, through pictures, gestures or physical aggression — or the refusal of a service offered to the public. The denial or trivialisation of genocide or of severe crimes against humanity are also punishable offenses.
Violations of the anti-racism norm must be prosecuted ex officio
Violations of the anti-racism norm must, by law, be prosecuted «ex officio». This means victims do not need to press charges. In practice, however, such charges are usually unavoidable because only they bring the offence to light, enabling authorities to act. Only incidents that occur in the public sphere are punishable. Thus discriminatory actions or statements that are conducted or made among friends or in family circles, for example, remain exempt from punishment. The Federal Commission against Racism keeps a list of cases that come under Article 261bis. Up to 2019, the Commission registered 935 such cases that had been notified to the authorities since 1995. A guilty verdict was passed in 62 percent of the cases, 38 percent ended with an acquittal, a termination of proceedings, or a dismissal of the case. Jews were the victims in around one quarter of the cases.
The anti-racism norm has proved its worth
Although Article 261bis of the Swiss Criminal Code was adopted in a popular vote by a clear majority in 1994 and has since proved its worth in practice, there have been repeated political attempts to rescind it or to narrow its scope. An initiative launched by the «Schweizer Demokraten» party calling for the abolition of the Article failed to collect enough signatures to force a popular vote. Similar political motions have been rejected or withdrawn. The fact that the extension of the norm to include sexual orientation was approved in a popular vote in early 2020 shows that the anti-racism norm remains a widely accepted and important tool for combating discrimination and marginalisation.
Article 261bis of the Swiss Criminal Code
in (unofficial) English translation
Whoever publicly incites hatred or discrimination against individuals or a group,
whoever publicly disseminates ideologies that aim at systematically disparaging or slandering individuals or groups,
whoever organises, promotes or participates in propaganda activities with one of the above-mentioned aims,
whoever publicly disparages or discriminates individuals or groups due to their race, ethnicity, religion or sexual orientation in a way that robs them of their dignity, orally or in writing, through pictures, gestures, physical aggression or in other ways, or denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity for one of the above-mentioned reasons,
whoever refuses a publicly offered service to an individual or a group due to their race, ethnicity, religion or sexual orientation
shall be punished by a prison sentence of up to three years or a monetary penalty.