Author: Lawyer Enrico Germano
The highest judicial authority confirmed the conviction of the comedian for racial discrimination in accordance with Article 261bis of the Swiss Criminal Code (SCC), following several denialist theories and statements made during a show that took place in French-speaking Switzerland in 2019, in Nyon and Geneva .
The Federal Supreme Court’s press release of 14 April 2023 specified that in a sketch, the comedian played a passenger on board a plane on the verge of crashing and uttered the following sentence: ‘J’emmerde tout le monde, les chambres à gaz n’ont jamais existé’. The police court of the canton of Geneva sentenced him to a fine of 180 daily rates for racial discrimination. Both the Criminal Appeals and Review Chamber of the Court of Justice of the canton of Geneva and the Federal Supreme Court upheld this conviction.
Article 352 of the Swiss Criminal Procedure Code (CrimPC) provides that the Public Prosecutor may issue a decree of indictment with a fine, a monetary penalty of no more than 180 daily penalty units or a custodial sentence of no more than six months. Article 324 CrimPC states that the Public Prosecutor must bring the charge before the Court of Correctional or Criminal Assizes if he cannot issue a summary penalty order, or if the proposed penalty for the offence committed is more than a custodial sentence of six months.
Article 261bis para. 4 SCC specifies that any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin, religion or sexual orientation in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity,, shall be liable to a custodial sentence not exceeding three years or to a monetary penalty.
In its reasoning, the Federal Supreme Court considered that it is questionable whether, in light of Article 17 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the comedian has the right to invoke his freedom of expression, guaranteed by Article 10 of the ECHR, since the contested statement appears to be the expression of an ideology contrary to the rights and freedoms recognised by the ECHR. Even if, in the case of a humorous show and, more particularly, of comments made by a fictional character, freedom of expression could nevertheless be applied, it would be necessary to place a restriction on it (see Article 10(2) ECHR), since it would seem out of the question to systematically give carte blanche to any artist who makes negationist or revisionist comments, under the pretext that he is acting in the context of the expression of his art or through a fictional character .
In this regard, Article 10(2) of the ECHR states that the exercise of these freedoms, entailing duties and responsibilities, may be subject to certain formalities, conditions, restrictions or sanctions prescribed by law and constituting measures necessary in a democratic society, for national security, territorial integrity or public order, for the prevention of criminal offences, for the protection of health and morals, for the protection of the reputation or rights of others, or to prevent the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
The Federal Supreme Court considered that, as the Geneva Cantonal Court had found, the contested sentence was not uttered for humorous, parodic or satirical purposes, but mainly to minimise the suffering of a people and to affirm the comedian’s position in this regard, in the context of what he called a ‘competition between victims’, or even to provoke and create controversy, to the detriment of members of the Jewish community, for whom this issue was likely to play a central identity role .
1 Cdt, Corriere del Ticino, 15.04.2023
2 Federal Supreme Court’s press release, 14.04.2023, decision ATF 6B_777/2022, 16.03.2023
3 Decision of the Federal Supreme Court ATF 6B_777/2022, 16.03.2023, 1.4.4
4 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) – concluded in Rome on 4 November 1950 and entered into force for Switzerland on 28 November 1974
5 Decision of the Federal Supreme Court ATF 6B_777/2022, 16.03.2023, 1.4.4