Anti-racism norm

In 1994, article 261^bis 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 261^bis 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 261^bis. 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 261^bis 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.