Switzerland

Background

Freedom of expression and freedom of religion or belief are both protected by the Constitution and other laws. The Constitution also states that the Confederation and the Cantons can take measures to “preserve public peace between the members of different religious communities.”

The country is formally predominantly Christian, with Catholics making up the largest denomination, followed by Protestants. There is an increasing percentage of people with no religious affiliation. Today, 24% of the Swiss population has no religious affiliation and overall 64% are considered to be “religiously distant” (a term, which can broadly be defined as those who are non-practicing or agnostic in their faith), according to research conducted by Stolz et al (2016).[1]

The ‘blasphemy’ law

There is one article in the Swiss Criminal Code of 1937 regarding an “[A]ttack on the freedom of faith and the freedom to worship”.

Article 261 states:

“Any person who publicly and maliciously insults or mocks the religious convictions of others, and in particularly [sic] their belief in God, or maliciously desecrates objects of religious veneration, any person who maliciously prevents, disrupts or publicly mocks an act of worship, the conduct of which is guaranteed by the Constitution, or any person who maliciously desecrates a place or object that is intended for a religious ceremony, or an act of worship the conduct of which is guaranteed by the Constitution, is liable to a monetary penalty not exceeding 180 daily penalty units.”

A “daily penalty unit” amounts to a minimum penalty of 30 CHF and a maximum penalty of 3000 CHF. The court exercises its discretion to decide the amount of the daily penalty units based on the offender’s financial situation.

Article 261 does not criminalize blasphemy per se, as it outlaws insulting and mocking “the religious convictions of others, and in particularly [sic] their belief in God”. Nevertheless, Article 261 is still problematic because it specifically protects religious beliefs from criticism and constitutes an unnecessary restriction to the right to freedom of expression, enshrined in article 16 in the Constitution. Article 261bis of the Penal Code sufficiently limits freedom of expression to the necessary extent, as it prohibits the discrimination and incitement to hatred against a person because of their race, ethnic origin, religion or sexual orientation, making article 261 redundant.

Recent developments

The Swiss Freethinkers have campaigned for Article 261 to be revoked or amended. Subsequently, in December 2018, Member of Parliament Beat Flach submitted a corresponding motion to the National Council, i.e. the lower house of the Swiss Federal Assembly, arguing that Article 261 in the Penal Code should be revoked. He argued that several other provisions in the criminal code sufficiently protect individuals against abuse and mockery and that a ‘blasphemy’ provision was no longer appropriate in a secular and liberal state. He further pointed to other European countries, like “Catholic Ireland” that had abolished their ‘blasphemy’ laws and stated that Switzerland should follow suit and send a clear message to other countries using ‘blasphemy’ laws to persecute religious minorities.

The Federal Council, the highest executive authority in the country, expressed their views on the matter in February 2019, requesting rejection of Flach’s motion. The Council argued that the provision protects freedom of belief and conscience and religious peace. Moreover, the Council stated that Article 261 protects religious minorities from persecution, without addressing the fact that other provisions can guarantee the same protection to minorities. In regards to the argument made about other European countries abolishing their ‘blasphemy’ laws, the Council stated that it is difficult to compare countries. One argument made was that Ireland’s ‘blasphemy’ laws went much further than Article 261. Based on these arguments, the Federal Council believes that Article 261 should be maintained.

Cases

According to press reports, there were 161 court cases related to Article 261 between 1960 and 2010. There were on average three people charged with ‘blasphemy’ each year. From 2011 to 2017, an estimated 30 people were convicted under the ‘blasphemy’ clause.

 

[1]  Stolz, J. et al. (2016) (Un)Believing in Modern Society. Religion, Spirituality, and Religious-Secular Competition