ECHR judgment of 09 January 2018 in the case of the Fund Against Racism and Anti-Semitism (GRA) (GRA Stiftung gegen Rassismus und Antisemitismus) v. Switzerland "( application No. 18597/13).
In 2013, the applicant's non-governmental organization was assisted in preparing the application. Subsequently, the complaint was communicated to Switzerland.
In the case, the application of a non-governmental organization on violation of her right to freedom of expression was successfully examined by obliging her to remove the information posted on the website, in which the politician was quoted as demonstrating, and his words were described as "verbal racism". The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In November 2009, the youth wing of the Swiss People's Party held a demonstration dedicated to the public initiative to support the ban on the construction of minarets in Switzerland. After the demonstration, the applicant organization, a non-governmental organization that promoted tolerance and condemned all forms of racial discrimination, posted on its website information citing the young politician's speech at the demonstration, and his words were described as "verbal racism". This politician filed a complaint about the protection of his personal rights. The Supreme Court decided that the speech was not racist in nature, and decided to remove the information in question from the applicant's website and replace it with a court decision. The complaint of the applicant organization was unsuccessful.
In the European Court, the applicant organization alleged in particular that civil courts violated her right to freedom of expression.
ISSUES OF LAW
Concerning compliance with the requirements of Article 10 of the Convention. The decisions of domestic courts that were not in favor of the applicant organization were an interference with her right to freedom of expression. The interference was prescribed by law and pursued a legitimate aim. The question is whether it was "necessary in a democratic society".
Assessing the complained statements, it is important to take into account the general context of the political debate in which the statement was made. Both the speech policy and the article of the applicant organization concerned the issue that was the subject of heated public disputes in Switzerland at the time under consideration: the popular initiative against the construction of minarets was widely covered in state and international media. As a result, the initiative was approved in a referendum on November 29, 2009, and the corresponding prohibition was included in the Constitution of Switzerland.
In the present case, the politician in question was elected chairman of the local branch of the youth wing of the main political party in Switzerland. His speech was unconditionally political and was uttered in support of his political goals, which at the time being were aimed at supporting the ban initiative. Consequently, the politician voluntarily submitted his political statements to the public and therefore had to show a greater degree of tolerance for possible criticism of his statements by those who did not share his views. The applicant organization reproduced the speech of the politician, which was already published on the party's website, calling it "verbal racism". The Federal Supreme Court ruled that the classification of speech as "verbal racism" was an indefinite judgment that had no factual basis, since it was not racist. In particular, the Federal Supreme Court noted that for the ordinary reader, the controversial statements did not look like a disparagement of Muslims, but as a defense of Christianity and Swiss culture.
It is necessary to distinguish between the presentation of facts and value judgments. The requirement to prove the truth of the value judgment was impracticable and violated freedom of expression, which is a fundamental part of the right guaranteed by Article 10 of the Convention. If the statement is an appraisal proposition, the proportionality of any intervention may depend on whether there were sufficient "factual justifications" for the judgment in question. In order to distinguish between the statement of facts and the value judgment, it was necessary to take into account the circumstances of the case and the general tone of the statements, bearing in mind that comments on issues of public interest could on this basis be value judgments rather than a statement of facts.
The European Court concluded that the classification by the applicant organization of the policy of the policy as "verbal racism" was a value judgment, as it contained comments by the organization itself regarding his speech. It can not be asserted that the classification of speech as "verbal racism" when it was expressed in support of an initiative that has already been called by various organizations discriminatory, xenophobic or racist, could be considered to be devoid of any factual basis (See, for example, the European Commission's report on combating racism in 2009 in Switzerland and the report of the United Nations Committee on the Elimination of Racial Discrimination in 2014). The applicant organization had never claimed that the statements of the politician would be in the area of a criminal offense in the form of racial discrimination under the Swiss Penal Code. In fact, in its statements before the Government of the respondent State at the Court, the applicant organization underlined the need for having the opportunity to refer to an individual's statements as racist without implying compulsory criminal liability.
A controversial statement can not be regarded as an unjustified personal attack or an insult to a politician. The applicant organization did not refer to the personal or family life of the politician, but to the order of perception of his speech. As a politician who publicly expressed his opinion on an extremely delicate matter, he should have known that his speech could provoke criticism among his political opponents. In view of the foregoing, the complained classification of policy statements as "verbal racism" could hardly have had a negative impact on his personal or professional life. The foregoing, however mild, could have had a "cooling effect" on the applicant organization's exercise of its freedom of expression, as it could have weakened the organization's intentions to pursue its legitimate aims and criticize political statements and actions in the future.
The domestic courts did not properly consider the principles and criteria established in the European Court's case-law to balance the right to respect for private life and the right to freedom of expression. Thus, they went beyond the limits of their discretion and did not establish a reasonable proportional balance between the measures that limited the applicant's right to freedom of expression and the legitimate aim.
In the case there was a violation of the requirements of Article 10 of the Convention (unanimously adopted).
In application of Article 41 of the Convention, the Court awarded the applicant organization EUR 5,000 in respect of non-pecuniary damage.