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SWITZERLAND: No to abolish the crime of blasphemy

By Peter Kenny

 

Ecumenical News (08.11.2020) – https://bit.ly/3l8HNhc – Switzerland’s Federal Assembly has rejected a motion by a lawmaker to abolish the crime of blasphemy, which will remain on the law books but does not carry the massive penalties of some countries such as Pakistan where it can lead to the death sentence.

 

Breaking the law in Switzerland carries a fine.

 

The proposal to abolish blasphemy’s offense was put forward by in the lower house of the national parliament by Beat Flach, a member of the Liberal Greens Party, on Nov. 6 in the parliament but was defeated 115 votes to 48.

 

Freedom of expression “does not apply without limit,” said Justice and Police minister Karin Keller-Sutter, the national broadcaster, RTS reported.

 

In neighboring France, French President Emmanuel Macron has repeatedly defended freedom of expression in recent weeks, the right to caricature, and “the freedom to believe and not to believe.”

 

His defense of the French notion of secularity came after the assassination of a professor who had shown caricatures from Mahomet to his students in the Paris region, triggering numerous anti-French demonstrations in Muslim countries.

 

For the Federal Council, which is similar to a national cabinet made up of all the main national political parties, the protection of freedom of expression is an expression of freedom of conscience and belief, which is explicitly guaranteed by the Federal Constitution, she said.

 

Article 261 of the Swiss Penal Code protects the peaceful “living together” and all religions and the right to respect for religious convictions.

 

That article says that “Any person who publicly and maliciously insults or mocks the religious convictions of others, and in particular their belief in God, or maliciously desecrates objects of religious veneration… is liable to a monetary penalty.”

 

It guarantees religious minorities criminal protection against persecution.

 

“You shouldn’t punish people for making fun of a faith,” said Flach. “We must give a clear and strong signal in favor of freedom of expression,” he pleaded.

 

The Swiss law does not directly punish words that insult divinity or the power of God, but it can act against those “flouting the convictions of others in matters of belief, in particular, belief in God”.

 

“In other words, religious convictions cannot be criticized to the same extent as other philosophical opinions,” asserted Flach, recalling that other countries have already abolished such an offense, including “Catholic Ireland.”

 

In Switzerland, the article relating to blasphemy does not seek to protect religious beliefs or God from insults but focuses on protecting others’ feelings.

 

“This helps to maintain religious peace,” Martino Mona, professor of criminal law and the philosophy of law at the University of Bern, reported the Swissinfo website.

 

Switzerland has a long tradition of religious wars and conflicts, which is why the blasphemy ban was needed, says Mona.

 

“Countries that have a stronger tradition of religious tolerance and diversity… don’t typically have such bans,” she explained.

 

In European countries such as Germany, Italy, Spain, Greece, Austria, Poland, and Russia, make blasphemy an offense. But it is not outlawed in France, Great Britain, and the Netherlands.

 

Recent decades and an influx of immigrants have brought other religions to Switzerland, including Muslims, who account for about 5.1 percent of the 8.56 million people, Hinduism (0.6 percent), and Buddhism (0.5 percent).

Photo: © Peter Kenny.





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Swiss gays hope for marriage equality ahead of parliamentary vote

By Emma Farge

 

Reuters (03.06.2020) – https://reut.rs/30qZ3b3 – When civil partnerships were legalised in Switzerland in January 2007, gay couple Laurent Marmier and Yves Bugnon completed the paperwork that same month, making them among the first to take advantage of the new law.

 

Thirteen years later, they hope a parliamentary vote will open the door for them to finally marry and enjoy full equality with heterosexual couples. Debate began on Wednesday but the vote was delayed to an unspecified date, a parliament official said.

 

“We don’t have the same rights, not quite. And this is what is bothering us,” said Bugnon, a music teacher in the French-speaking city of Lausanne.

 

Conservative Switzerland lags many countries in Western Europe on gay rights and is slowly catching up. In February, voters backed an anti-homophobia law giving lesbians, gays and bisexuals legal protection from discrimination.

 

A survey commissioned by gay rights association Pink Cross showed more than 80% of Swiss support same-sex marriage.

 

However, the country’s political institutions tend to be more conservative than the general public, Socialist lawmaker Mathias Reynard told Reuters. “Swiss people are in favour – but everything takes time.”

 

The same-sex marriage proposal is expected to pass the lower house but it will still have to clear the upper house. Then, in line with Switzerland’s direct democracy process, it could be challenged via referendum if opponents gather the necessary 50,000 voter signatures within 100 days.

 

The dominant People’s Party (SVP) opposes the law but an official did not respond for requests to comment on whether it would seek a referendum on the issue.

 

The fact that gay marriage is not yet legal here has more than just symbolic importance for couples. Marital status has a bearing on adoption and assisted reproduction rights, including sperm donations for lesbian couples.

 

Marmier said he was hopeful the law would pass but added it was important that these other issues were also addressed in the new law.

 

“I think it is important it moves forward and that we don’t wait 13 years to pass the next step,” he said.





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Swiss vote to approve legislation to protect LGBTQ+ rights

Referendum approves law that was passed in 2018 but was opposed by rightwing parties.

By Philip Oltermann

 

The Guardian (09.02.2020) – https://bit.ly/3bpkhcc – Swis voters have given their backing in a referendum to extending anti-racism legislation to cover sexual orientation, defying critics who had claimed such a move would be an infringement of free speech.

 

Unlike many of its western European neighbours, Switzerland has no law in force that specifically protects LGBTQ+ people from discrimination or hate speech.

 

A law passed by the country’s government in December 2018 was designed to close this loophole. However, an alliance of rightwing parties including the conservative Christian Federal Democratic Union (EDU) and the nationalist Swiss People’s Party (SVP) opposed the law change and sought a referendum to prevent it from coming into effect.

 

On flyers and on posters, opponents framed the law as a “gagging clause” that would restrict freedom of speech and demote gay and bisexual members of society to a “weak minority in need of protection”.

 

Switzerland has a long tradition of holding plebiscites on issues that can range from major foreign policy decisions to the building of a new school. Votes are usually held on three to four dates spread across the year.

 

In Sunday’s vote, 63.1% of the public voted in favour of expanding the anti-discrimination law, though the results revealed splits across the linguistically and cultural heterogenous state. In the German-speaking cantons of Schwyz, Uri and Appenzell-Innerrhoden, there were majorities in favour of blocking the law. In French-speaking Vaud, by contrast, the law was endorsed by an emphatic 80% of the voting public.

 

Under the new law, those who “publicly degrade or discriminate” others on the basis of their sexual orientation, for example by denying same-sex couples entry to a nightclub, could face a jail sentence of up to three years. The law does not affect private conversations such as among friends or family.

 

Several European countries such as Belgium, Germany, France, Ireland and the UK already have similar legislation in place.

 

LOS, an advocacy group representing Swiss lesbian, bisexual and queer women, welcomed the referendum result. “We have won, and how! Next stop: same-sex marriage,” it said.

 

Switzerland and Italy are the last two countries in western Europe where gay marriage is not legal. Both countries offer same-sex couples the option of civil unions but not full marriage.

 

In a separate referendum, Swiss voters on Sunday rejected an initiative calling for at least 10% of new housing to be built by not-for-profit cooperatives in an attempt to reduce the cost of living. The proposal was rejected by 57.1% of the voting public.





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ECHR/ SWITZERLAND: An Afghan asylum-seeker converted to Christianity should not be deported

Switzerland would breach the Convention by returning to Afghanistan an Afghan convert to Christianity

 

Registrar of the ECHR (05.11.2019) – In today’s Chamber judgment 1 in the case of A.A. v. Switzerland (application no. 32218/17) the European Court of Human Rights held, unanimously, that there would be: a violation of Article 3 of the European Convention on Human Rights in the event of the applicant’s return to Afghanistan.

 

The case concerned the removal from Switzerland to Afghanistan of an Afghan national of Hazara ethnicity who was a Muslim convert to Christianity.

 

The Court noted that according to many international documents on the situation in Afghanistan, Afghans who had become Christians or who were suspected of conversion would be exposed to a risk of persecution by various groups. It could take the form of State persecution and result in the death penalty.

 

The Court noted that, while the authenticity of the applicant’s conversion in Switzerland had been accepted by the Federal Administrative Court, it had not carried out a sufficient assessment of the risks that could be personally faced by the applicant if he were returned to Afghanistan. The Court found in particular that the file did not contain any evidence that the applicant had been questioned about the everyday practice of his Christian faith since his baptism in Switzerland and how he could, if returned, continue to practise it in Afghanistan, in particular in Kabul, where he had never lived and where he said that he would be unable to rebuild his future life.

 

Principal facts

 

The applicant is an Afghan national who claims to have been born in 1996 and lives in the Canton of Ticino.

 

In March 2014 A.A. arrived in Switzerland. He applied for asylum and stated that he had left Afghanistan because of the lack of security in that country and his conversion from Islam to Christianity.

 

In February 2015 the State Secretariat for Migration (SEM) rejected his application, noting that the grounds for asylum were not credible.

 

In October 2016 the Federal Administrative Court confirmed the SEM’s decision on the credibility of the asylum grounds, but found that the applicant’s conversion in Switzerland was genuine. It was of the view that the applicant would not be exposed to serious harm in Afghanistan as a result of his conversion and ordered his removal to that country. It further held that, while the complainant could not be returned to his region of origin (Ghazni province), he would have an internal protection alternative in Kabul, where his uncles and cousins lived. His conversion to Christianity, which had occurred in Switzerland, was not a decisive factor, as it was not known to his relatives in Kabul.

 

In May 2017 the duty judge decided to apply Rule 39 of the Court’s Rules of Court and asked the Swiss government not to deport A.A. to Afghanistan during the proceedings before the European Court of Human Rights.

 

Complaints, procedure and composition of the Court

 

Relying on Article 3 (prohibition of inhuman or degrading treatment), A.A. alleged that he would be subjected to ill-treatment if returned to Afghanistan.

 

The application was lodged with the European Court of Human Rights on 27 April 2017.

 

Judgment was given by a Chamber of seven judges, composed as follows:
Paul Lemmens (Belgium), President, Georgios A. Serghides (Cyprus), Paulo Pinto de Albuquerque (Portugal), Helen Keller (Switzerland), Alena Poláčková (Slovakia), María Elósegui (Spain), Erik Wennerström (Sweden), and also Stephen Phillips, Section Registrar.

 

Decision of the Court

 

Article 3

 

The Court noted that according to many international documents on the situation in Afghanistan, Afghans who had become Christians or who were suspected of conversion would be exposed to a risk of persecution by various groups. It could take the form of State persecution and result in the death penalty.

 

The Court found that in its judgment of 21 October 2016 the Federal Administrative Court, the only judicial body to have examined the case, had not looked at the applicant’s practice of his Christian faith since his baptism in Switzerland or how he could, if returned, continue to practise it in Afghanistan. The court had merely presumed that he would have an internal protection alternative by going to live in Kabul with his uncles and cousins, on the basis that his conversion to Christianity was not known to his relatives there.

 

In the Court’s view this argument did not stand up to serious scrutiny of the specific circumstances of the case. The Federal Administrative Court should have carried out its examination by looking at how the applicant practised his Christian faith in Switzerland and could continue to practise it in Afghanistan, for example by referring that assessment back to the first-instance authority or by submitting a list of relevant questions to the applicant; but it had not done so.

 

In the Court’s view, the Federal Administrative Court’s explanation that the applicant’s return to Kabul would not be problematic because he had not spoken of his conversion to Christianity to his relatives in Afghanistan, but that he had only shared his beliefs with those closest to him, implied that the applicant would nevertheless be obliged, in the event of his return, to change his social conduct by confining it to a strictly private level. He would have to live a life of deceit and could be forced to renounce contact with other Christians. The Court further noted that, in a leading judgment published shortly after the judgment in the present case, the Federal Administrative Court had itself conceded that the daily dissimulation and negation of one’s inner beliefs in the context of Afghan society could, in certain cases, be characterised as a form of unbearable mental pressure.

 

Lastly, the Court observed that the applicant belonged to the Hazara community, which continued to face a degree of discrimination in Afghanistan. Even though the applicant had not specifically relied on his ethnic origin in support of his asylum application and this factor was not decisive for the outcome of the case, the Court could not completely overlook this aspect, which had not been referred to at all by the domestic courts. The Court noted that the Federal Administrative Court’s comparison of the situation in Afghanistan to that in central Iraq appeared particularly problematic as it was not substantiated by international reports on the experience of converts to Christianity in Afghanistan.

 

The Court found that the Federal Administrative Court, while accepting that the applicant, of Hazara ethnicity, had undergone a conversion from Islam to Christianity while in Switzerland and that he could therefore be regarded as belonging to a group that was exposed to a risk of ill-treatment if returned to Afghanistan, had not engaged in a sufficiently serious examination of the consequences of the applicant’s conversion. Consequently, there would be a violation of Article 3 if the applicant was returned to Afghanistan.

 

Just satisfaction (Article 41)

 

As the applicant had not claimed just satisfaction, the Court took the view that there was no need to make any award on this basis.

 

The judgment is available only in French.

 

  1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution


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