Switzerland: Court backs anti-racism NGO in minarets referendum free expression complaint

Judges have awarded a total of €35,000 against Switzerland after ruling that it had breached human rights law in its prosecution of a non-governmental organisation.

The European Court of Human Rights declared on 9 January that the to right to freedom of expression of GRA Stiftung gegen Rassismus und Antisemitismus (the GRA Foundation against Racism and Anti-Semitism), had been infringed.

This was the result of the judgement by domestic courts that the NGO had defamed a politician – the head of the local youth branch of the Swiss People’s Party – by classifying his remarks at a speech during a campaign ahead of a 2009 referendum on banning minarets in Switzerland as “verbal racism.”

In the case of GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland (application no. 18597/13) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

As just satisfaction (Article 41), the court held that Switzerland was to pay the applicant organisation 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 30,000 in respect of costs and expenses.

The European court found in particular that the context of the debate at the time of the referendum – including other criticisms of the referendum itself by human rights bodies – meant that the organisation’s use of the words “verbal racism” had not been without factual foundation.

The penalty imposed on the organisation might also have had a chilling effect on its freedom of expression.

Overall, in reviewing the circumstances submitted for their assessment, the domestic courts had not given due consideration to the principles and criteria laid down by the court’s caselaw for balancing the right to respect for private life and the right to freedom of expression, thereby overstepping their room for manoeuvre (“margin of appreciation”).


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