The Anti-Racism Legislation

The anti-racism legislation came into force on 1st January 1995 after its adoption by the people. By adopting this measure, Switzerland also effectively acceded to the International Convention on the Elimination of All Forms of Racial Discrimination.

Article 261bis of the Penal Code prohibits specific, particularly serious forms of racism:

• incitement to hatred and discrimination (subsection 1)
• systematic libel, slander and disparagement (subsection 2)
• organising propaganda campaigns (subsection 3)
• breaches of human dignity and the disparagement of, or discrimination against, an individual by any sort of conduct - be it by word, writing, gestures or acts (subsection 4)
• denial, gross minimisation and justification of genocide or of other crimes against humanity.

Consequently, it is also a criminal offence to deny, grossly minimise or justify genocide or other crimes against humanity. According to Swiss case law, the Holocaust by the Nazis directed against European Jews, the Sinti and Roma (gypsies), as well as the massacre of the Armenians in 1915 are recognised as genocides.

Breaches of the Anti-Racism Legislation are offences within the remit of the public prosecutor

Breaches of the anti-racism norm are offences liable to public prosecution and require therefore no private legal action. In practice however, private action is unavoidable, because that is the route through which the facts become known and enable the authorities to act.

Only acts committed in public are criminal offences. This means that racially discriminatory acts committed in the family for example, or amongst friends remain outside the scope of criminal law.

Article 261bis of the Penal Code does not restrict the free expression of opinion. As in other cases, also this freedom ends where another protected right – in this case, human dignity – is breached. The Federal Court put on record that the freedom to express opinion has an important weight when interpreting the anti-racism norm. The right to the free expression of opinion ends where the dignity of other people is breached.

1995 – 2006: 355 cases

According to statistics published by the Federal Commission against Racism [EKR], a total of 355 cases were reported to the competent authorities from 1995 to the end of 2006. Roughly 40% of all these cases ended with a guilty verdict. A quarter of the different categories of victims were Jews. 

Although Article 261bis of the Penal Code was clearly adopted by the people in 1994 and has proved itself in practice, political attempts have been made to abolish or weaken it. So far, these attempts have either all been abandoned or blocked. A motion put forward in 2004 seeks to criminalise the use of symbols which glorify extremist movements or incite to acts of violence and racial discrimination. As a result of this motion, a legislative proposal has been prepared and the consultation process concerning this proposal is still ongoing.