Criminal Code Article 261bis
Discrimination and incitement to hatred*
Anyone who publicly incites hatred or discrimination against a person or a group of persons on the grounds of their race, ethnic origin, religion or sexual orientation,
anyone who publicly disseminates ideologies that have as their object the systematic denigration or defamation of such persons or groups of persons,
anyone who with the same objective organises, encourages or participates in propaganda campaigns,
anyone who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin, religion or sexual orientation in a manner that violates human dignity or who denies, grossly trivialises or seeks to justify genocide or other crimes against humanity on any of these grounds, by word, in writing, picture, gesture, assault or in any other way in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity,
anyone who refuses to provide a service to another on the grounds of that person’s race, ethnic origin, religion or sexual orientation when that service is intended to be provided to the general public, is liable to a custodial sentence not exceeding three years or to a monetary penalty.
* In the Military Criminal Code, the same wording is to be adopted in Art. 171c para.1.
Federal popular referendum from 9 February 2020
On 9 February we will vote on an extension of the criminal law provision on anti-racism, which aims to introduce discrimination and incitement to hatred on the basis of sexual orientation as a new criminal offence. According to the Federal Council, this means “whether a person is attracted to people of the other sex (heterosexual), the same sex (homosexual) or both sexes (bisexual). This does not include gender identity or sexual preferences and practices”.1
A non-party committee took a referendum against this extended criminal law provision with the slogan “No to the censorship law – For tolerance and diversity of opinion”.
What is at stake? The referendum committee provides a detailed set of arguments.2 In addition to presenting the bill, Current Concerns also allows other critical voices to have their say.
25 years ago, the adoption of Art. 261bis “ban on racial discrimination” into the Swiss Penal Code was approved relatively narrowly (with 54.6% votes in favour) in the referendum of 25 September 1994. Even then, many citizens could not understand why freedom of expression should be curtailed by an article of criminal law which was not really necessary in view of the sufficient number of other penal provisions. For the democratic formation of the will of the Swiss, who are accustomed to managing their own affairs at federal, cantonal and communal level, freedom of expression is a fundamental basic right that they will not allow to be taken away.
In the voting booklet at the time, the Federal Council stated that “tolerance towards others is a basic Swiss attitude”. But racially discriminatory assaults were “not inconceivable here either”.3 Not a particularly convincing argument. Why the penal provision was nevertheless accepted: The Federal Council, parliament, most parties and many media pressurised the electorate that Switzerland should accede to the “international convention on the elimination of all forms of racial discrimination” of 1965, for which it is necessary to have the new penal norm. As anticipated, its application by the courts has since then been frequently criticised on the grounds of freedom of expression.
Today the same question arises as in 1994: Is there a compelling reason to further restrict the freedom of expression of the population?
As the Federal Council correctly states in the voting booklet, protection against discrimination on the basis of sexual orientation is “one of the fundamental rights guaranteed by the Federal Constitution.”4 This is laid down in the FC Art. 8 paragraph 2: “No person may be discriminated against, in particular on grounds of [...] the way of life [...].”
It is questionable, however, to what extent a new penal provision should be necessary. For a whole range of protective regulations and criminal provisions are already available today.
With this in mind, Federal Councillor Simonetta Sommaruga stated in the debate of the National Council on 25 September 2018: “The Federal Council has also previously stated that in its view the current law already offers extensive protection against hate speeches and hate crimes as well as discrimination against persons on the basis of their sexual orientation or gender identity. Above all, the protection of personal privacy under civil law should be considered, but also the protection of personal honour under criminal law in Articles 173 et seq. SCC [...].” She adds: “This means that the Federal Council does not consider it imperative to extend protection under criminal law. Nevertheless, the Federal Council, in line with its opinion, requests you to support the majority of the commission and to agree to the bill.”5
Why then, without necessity, restrict the freedom of expression?
“Because everyone has or ‘constructs’ his or her individual ‘truth’, which is not the intersubjectively valid truth to be sought by all rational people, only his or her own interests and sensitivities, lifestyle and above all emotions prevail, all of which are pushed through, wanting to be right.” (Marian Eleganti)
Apart from the SVP (Swiss People’s Party), a number of liberal-minded politicians also rejected the bill. Remarkable is the statement of the young FDP the Liberals Councillor of States Andrea Caroni from Appenzell-Ausserrhoden, which we are presenting in parts. Caroni also points to certain processes in the UN (see below, large number of non-Western states …).
“I will tell you frankly: I am against this bill. For once, I find myself in a somewhat unusual alliance. […] In general, I think that criminal law – which is the ultima ratio, as colleague Seydoux said – is too crude and, in my opinion, unnecessary in the fight for leadership of opinion. I think that the best remedy against stupidity or malice is simply to use counter-arguments that are decent and clever.
There is already wide protection for individuals who are insulted or discriminated against on the basis of their sexual orientation. However, my main argument is this: If you agree to this, it will never end. The Federal Council’s statement already outlines what the UN would like. […]. Right now, religion and ethnicity are protected by criminal law; now gender and sexual orientation are being added. However, the UN actually says one should then also include language. […]
Someone has just mentioned the dangerous criterion of political conviction: What if we suddenly make it a punishable offence to speak ill of other political convictions? […] The basic question is always the same: Do we want to extend criminal law to more and more criteria?”6
In the near future, the discussion about “marriage for all” will take place in Switzerland, including highly controversial issues such as adoption rights for homosexuals and access to sperm donation for lesbian couples. The referendum committee rightly fears that the extension of the discrimination penal norm would put opponents of such demands at a serious disadvantage in the political debate: “A criminal ban on discrimination would decisively strengthen the impression created in the media that the argument against ‘marriage for all’ is per se discriminatory. This would make an objective debate massively more difficult, regardless of how one positions oneself on this issue. Already today, a storm of indignation arises whenever someone dares to say in public that growing up with two fathers or mothers is detrimental to the well-being of the child. Reflexively, such statements – which can certainly be justified from a developmental psychological point of view – are referred to as an attack on the parental qualities of persons loving the same sex. And so it can be assumed that many citizens and politicians would not even participate in a social debate on these highly emotional questions in order not to run the risk of being perceived and labelled as ‘homophobic’.”7
“Discrediting your opponents damages trust in politics.” With these words Fabian Schäfer warns in the “Neue Zürcher Zeitung” against the increasing unruliness of the discussion culture before the popular referendums. A bitter observation in direct democratic Switzerland, whose existence is indispensably linked to free discussion among fellow citizens with the most diverse opinions. Schäfer describes the vote on 9 February as a “test for the discussion culture in this country” and continues: “One can be divided on this bill for good reasons. But even now, it is to be feared that some of the good reasons – those against – will not be taken seriously, but will be maliciously twisted and reinterpreted. […] At the latest in the social networks there will be no stopping them. A reasonable discussion about the necessity of the bill, which the Federal Council also doubted, or about the limits of criminal law will hardly be possible any more. Opponents of the bill must expect to be put in the category of homophobes.”8
A courageous and bitterly necessary appeal, which is well suited to the liberal “Neue Zürcher Zeitung”.
“Anyone who contradicts or opposes is perceived as a ‘personal enemy’, not as a reasonable and honourable ‘discourse opponent’ according to the formula ‘you contradict me, therefore you hate me’. As if a contradiction in the matter would already mean the rejection (hate) of the person who represents the matter.” (Marian Eleganti)
On the eve of the referendum on 9 February, Bishop Eleganti’s commentary is a pleasure and is likely to strengthen the steadfastness of the electorate:
“Since in the postmodern, pluralistic and relativistic society no universally valid truth is to exist any more which is to be sought, the effort for objectivity on the basis of common reason arguments in an open dialogue is also abandoned. Because everyone has or ‘constructs’ his or her individual ‘truth’, which is not the intersubjectively valid truth to be sought by all rational people, only his or her own interests and sensitivities, lifestyle and above all emotions prevail, all of which are pushed through, wanting to be right. Anyone who contradicts or opposes is perceived as a ‘personal enemy’, not as a reasonable and honourable ‘discourse opponent’ according to the formula ‘you contradict me, therefore you hate me’. As if a contradiction in the matter would already mean the rejection (hate) of the person who represents the matter.”
Marian Eleganti warns against the introduction of a penal norm for “protection” against discrimination and incitement to hatred on the basis of sexual orientation with forceful words: “Any opinion differing from it [the LGBTQ lobby] is stigmatised as ‘hatespeech’ or at least assessed as a theoretical precondition for physical violence. And even before a real violent crime takes place, which has completely different causal factors, the representative of a dissenting opinion is threatened with a court-ordered punishment or a boycott of his free speech by means of blockades and other harassment. Then, this is using real violence without blushing in the light of their own pluralist credo (diversity), which is loudly proclaimed at the same time.”9
It is a pleasure to hear such reasonable and knowledgeable voices from the most diverse social “quarters” before this vote. •
1 Explanatary notes of the Federal Council on the referendum from 9 February 2020, p. 19
2 Referendum committee “Nein zu diesem Zensurgesetz!” (“No to the censorship law!”) Argumentation, final version from 7 November 2019
3 Explanatary notes of the Federal Council on the referendum from 25 September 1994, p. 7
4 Explanatary notes of the Federal Council on the referendum from 9 February 2020, p. 7
5 13.407 Parliamentary initiative Reynard Mathias. Fight against discrimination based on sexual orientation. Debate in the National Council from 25 September 2018; also in the Council of States from 28 November 2018
6 13.407 Parlamentary initiative Reynard Mathias. Fight against discrimination based on sexual orientation. Debate in the Council of States from 28 November 2018
7 Referendum committee “Nein zu diesem Zensurgesetz!“ (“No to the censorship law!”), Argumentation from 7 November 2019, p. 8
8 Schäfer, Fabian. “Das üble Spiel der Unterstellung” (“The dirty play of insinuation”). Neue Zürcher Zeitung from 16 November 2019
9 Suffragan bishop Marian Eleganti. “Das Ende der Bemühung um Objektivität” (“The end of the efforts to be objective”). Guest commentary from 3 January 2020. Zukunft-ch (https://www.zukunft-ch.ch/das-ende-der-bemuehung-um-objektivitaet/)
mw. In June 2016, the UN Human Rights Council introduced the “Mandate of the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity”. However, a broad group of African and Islamic states as well as Russia, China and India did not agree with this and tried to revoke the mandate on 23 November in the Third Commission of the UN General Assembly*.
* Third Commission: Commission for Social, Humanitarian and Cultural Affairs (SOCHUM), one of six thematically structured sub-commissions established by the General Assembly to better manage its business. (Source: Wikipedia)
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