Freedom of speech

We on this blog often grumble at the squishy, goody-two-shoes, dirigiste and expensive soft eco-socialism of the 'classe politique' in Switzerland, but occasionally something pops up which makes us realise that Switzerland really is 'God's own country' and we can only kiss the sacred ground on which we stand.

Today it was an interview in the Neue Zürcher Zeitung am Sonntag with Marcel Niggli, a noted professor of Criminal Law at the University of Freiburg in Switzerland. In the context of the current debate about 'Hate Speech' in Britain, the rationality of the legal system in Switzerland will make you sit up.

Those who read German should read the full interview, for those who don't here are some key extracts:

NZZ: Last weekend 5,000 neo-Nazis gathered in Toggenburg for a concert. Why didn't the police intervene?

Niggli: The police intervene when something criminal takes place. As far as we know today neo-Nazis had indeed gathered there. But that in itself does not mean that something criminal took place. It is not criminal to be a neo-Nazi. One can also be a racist or a jihadist. That in itself is not criminal. The criminal law does not punish people for what they are or what they think, rather only for what they do. And one only knows what someone has done after the fact, not beforehand.

NZZ: In which case no one could have taken legal steps against the concert?

Niggli: Yes, on the contrary. In this case the authorities were apparently misled and tricked. Had they known about the concert earlier they could have forbidden the gathering without difficulty – perhaps out of concerns for public safety, as a fire hazard or for reasons of noise prevention. The local authorities could have done all that, had they known about the event. But such actions are not part of the criminal law but of administrative law.

NZZ: We expect the police to be able to acquire evidence even under the most difficult circumstances.

Niggli: But when they are present in force then no crimes take place. In addition, I also have to say that now and again I receive for evaluation texts from such bands. Many of them are insufficient for a conviction under the racism law of Article 261 bis. And when I find an unambiguous passage they say: well, we used to sing that but we don't anymore. I'm sorry, but that is too little. If you don't apply the racism provision very narrowly and restrictively, but rather as an all-purpose preventative instrument, you may as well repeal it, for it justifies those who say that it only serves to restrict the freedom of speech. The law as it stands forbids only a very few things.

NZZ: That 5,000 neo-Nazis gather for a concert in Toggenburg and the police do nothing – don't you find that disturbing?

Niggli: Neo-Nazis can meet up just as any other people can. In Switzerland that freedom is still a tradition, thank God. Socialists can meet up and Communists and Capitalists, too. As long as they don't do anything criminal, that is OK.

NZZ: With your rather liberal position won't Switzerland become a kind of island which attracts undesirable guests from abroad?

Niggli: That is certainly a danger. Before Switzerland got the racism law it was much worse. There were even open Holocaust deniers who published books. That's past. But the situation in Switzerland is still relatively liberal. For this reason the criticism by the SVP is wrong, that people are no longer allowed to say anything. Of course you can! And for this reason it is also wrong when one exaggerates and intervenes – for example, when the Town President of Bern makes a stupid joke about Italians. That is simply not criminal. Whether it was politically bright, well, that's another question. By the way, Switzerland, unlike other countries, does not ban any political parties. And there is no problem. Or have you ever seen swastikas around anywhere? I certainly haven't.

NZZ: What would have happened if the neo-Nazis in Unterwasser had attacked an asylum centre?

Niggli: It would have been sufficient if they had marched along giving the 'Heil Hitler' salute. That would have been a display in a public area and as such a criminal act, in which case the police would have intervened and would have been obliged to intervene.

NZZ: One cannot therefore use the criminal law in the interests of security?

Niggli: No, one cannot, because criminal law only applies after the fact. … As long as something is covered by freedom of speech and no crime takes place then that is allowed. You have to treat all events even-handedly, from extreme left to extreme right. Such meetings anyway get more publicity when they are banned than when one simply says: 'Just go and spout your nonsense'.

[Translation ©FoS]

Update 24.10.2016

For the knuckle-draggers out there who may one day need to drill down into the detail of Article 261 bis (1995), here you are:

Racial Discrimination

• Whoever publicly calls for hatred or discrimination against a person or a group of persons on account of their race, ethnic background or religion,
• whoever publicly spreads ideologies aimed at the systematic detraction or defamation of the members of a race, ethnic group or religion,
• whoever organizes, encourages or takes part in propaganda actions with the same aim,
• whoever by means of words, texts, images, gestures, actions or in any other wise detracts or defames a person or a group of persons on account of their race, ethnic background or religion in a way that violates human dignity or for one of these reasons denies, coarsely belittles or attempts to justify genocide or other crimes against humanity,
• whoever refuses to perform an action offered for the general public for a person or group of persons on account of their race, ethnic background or religion,

will be punished with up to three years imprisonment or a fine.

Notes

1. This translation has no legal status!
2. If you get it wrong, or discover that in your case Article 261 bis was not interpreted as narrowly as you had hoped after reading Professor Niggli: cheer up! Swiss prisons are humane and not unpleasant places to finish your book or work on your six-pack. There may be some riff-raff in there with you, though. On that topic, having just read Article 261 bis carefully, we cannot really go into detail.