If the Lord’s ways are inscrutable, are the bullets that penetrate his icons impunishable?
Sanija AMETI, figurehead of the Swiss Green’Liberals political party, published a photo of herself on the Instagram app on September 8, 2024, depicting herself shooting a pistol at an illustration of a painting depicting the Virgin and the Christ Child.
A media frenzy ensued in response to the outrage caused by this publication: Sanija AMETI immediately lost her job and was forced to resign from all her functions within her party (an exclusion procedure was underway), even going so far as to be placed under police protection.
But that’s not all. The Young Swiss People’s Party (Jeunes UDC) has decided to file a criminal complaint for infringement of freedom of belief and worship.
Regardless of the moral, religious or political considerations of this case, we sketch out here the answer to the question that every jurist asks: is a criminal offence carried out?
Art. Article 261 of the Swiss Criminal Code, entitled “Infringement of freedom of belief and worship”, states that: ” anyone who publicly and viciously offends or disregards the beliefs of others, in particular belief in God, or desecrates objects of religious veneration, anyone who maliciously prevents or disrupts or publicly disregards an act of worship guaranteed by the Constitution, anyone who maliciously desecrates a place or object intended for worship or an act of worship guaranteed by the Constitution, shall be punished by a pecuniary penalty “.
Insofar as the incriminating acts were not intended to prevent the celebration of a religious act, only the first and third hypotheses could be taken into account in the case in point.
Protected legal asset
As a preliminary point, it should be noted that only offences against the religious convictions of others that are sufficiently serious to disturb the public peace can fall within the scope of this provision (laurent moreillon, in: Commentaire romand du Code pénal II,1st ed., 2017, Basel, n. 8 ad art. 261 CP). The breach of the public peace and the religious convictions of individuals are among the legal assets protected by this article (moreillon, op. cit ., n. 8 and 9 ad art. 261 CP), some authors even considering that the “beliefs” of an atheist are protected by this norm (bernard corboz, Les infractions en droit suisse, Vol. II,3rd edition, Zurich 2010, N 4 ad art. 261 CP).
Any individual whose religious convictions are violated may therefore be a direct victim of this offence (moreillon, op. cit ., n. 9 ad art. 261 CP). While there is no doubt that a religious community has the status of an injured party (ATF 120 Ia 220; gerhard fiolka, Basler Kommentar Strafrecht,4th edition, Basel 2019, N 13 ad art. 261 CP), the question arises in the case of the Young SVP.
The act of publicly offending or mocking a religious belief
With regard to the attack on religious conviction, the offence is a value judgment likely to hurt the religious feelings of the persons to whom it is addressed, while the action of flouting characterizes the presentation, in a ridiculous way, of religious convictions (moreillon, op. cit. , n. 15 ad art. 261 CP).
On the other hand, criticism, satire or mockery of a religion are not covered by art. 261 CP (moreillon, op. cit ., n. 12 ad art. 261 CP).
The act of offending or insulting does not have to be verbal, but can be expressed in writing, images, drawings, photographs, films or implicit acts (fiolka, op.cit., N 21 ad art. 261 CP; ulrich weder, StGB/JStG Kommentar, Zurich 2022, N 5 ad art. 261 CP). The general evolution of conceptions at the time of the offence should be taken as a basis for judging its offensive nature (ATF 86 IV 19; wolfgang wohlers, Schweizerisches Strafgesetzbuch, Handkommentar,4th edition, Zurich 2020, N 3 ad art. 261 CP). This applies primarily to acts which infringe the elementary principle of tolerance (ZR 85, 1986, N°44, 111; Stefan Trechsel/Hans Vest, Schweizerisches Strafgesetzbuch, Praxiskommentar,4th edition, Zurich 2021, N 2 ad art. 261 CP). We must also exclude the hypersensitivity of fanatical religions which behave in too absolute a manner, and which therefore cannot be the criterion for assessing the seriousness of the offence (martin schubarth, Delikte gegen den öffentlichen Frieden, Zurich 2007, N 23 ad art. 261 CP). Thus, what is decisive is not contempt for religious content per se, but contempt for the feelings of believers (fFiolka, op.cit., N 22 ad art. 261 CP).
For the act to have been committed publicly, it is sufficient that the statement is not addressed to a private circle of addressees (moreillon, op. cit, n. 16 ad art. 261 CP). In other words, it is appropriate to consider as public all utterances that go beyond the family circle or the circle of trusted persons (moreillon, op.cit., n. 16 ad art. 261 CP). 16 ad art. 261 CP).
The act of desecrating an object of religious veneration
Desecration of objects of religious veneration concerns physical objects that are the object of religious veneration, i.e. crucifixes, hosts, holy images, relics (fiolka, op. cit.,4th edition, Basel 2019, N 26 ad art. 261 CP). Desecration refers to significant acts expressing contempt for the object, for example the act of “soiling” an object (fiolka, op.cit., N 28 ad art. 261 CP). Objects are protected even if they are not sacred (Corboz, Les infractions en droit suisse, Vol. II,3rd edition, Zurich 2010, N 15 ad art. 261 CP).
The act as such must be capable of seriously hurting the feelings of an average follower of the targeted belief, and the infringement must appear particularly reprehensible (moreillon, op.cit., n. 19 ad art. 261 CP). It follows that a particularly strict interpretation must be applied in order to respect the constitutional principle of freedom of expression (moreillon, op. cit. 19 ad art. 261 CP). 19 ad art. 261 CP).
The subjective constituent element of “vile” or “nasty” character
In addition to the perpetrator’s intention to commit the offence, it is necessary that he or she act in a vile or malicious manner (moreillon, op.cit., n. 13 ad art. 261 CP).
The vile or malicious nature of the act must reflect particularly despicable behavior on the part of the perpetrator, who shows pure contempt for the religious convictions of others (moreillon, op.cit., n. 26 ad art. 261 CP). The adverb “to act in a vile manner” corresponds to the adverb “maliciously” (corboz, Les infractions en droit suisse, Vol. II,3rd edition, Zurich 2010, N 8 ad art. 261 CP). As such, the Federal Court requires the perpetrator to have the will to despise the feeling of piety or the awareness of injuring others in this feeling (decision 6B_515/2019 of June 11, 2019, recital 1.1.2, in connection with art. 262 CP).
Note that a motion 18.4344 was tabled on December 14, 2018[1] to abolish the offence of blasphemy enshrined in art. 261 CP[2]. The Federal Council proposed that the motion be rejected on the grounds that the criminal provision does not conflict with the freedom of opinion guaranteed by art. 16 of the Federal Constitution, since it only applies in the case of a “vile” attack. This does not mean ” any criticism, even if it is formulated in an offensive, provocative or mocking manner, but only that which is aimed at contempt and denigration and which, by its form or content, undermines the requirement of tolerance ” (ZR 85, 1986, no. 44, 111). In addition, the provision protects the peaceful “living together” of all religions, but also respect for religious convictions, as the Federal Council reminds us, and consequently freedom of conscience and belief.
The case in point
In the case in point, the public nature of the publication is not in doubt insofar as the image was posted on Sanija AMETI’s Instagram account.
It is also important to note that the object in question is a reproduction of a painting from an auction house catalog, and not the painting itself. In these circumstances, the question of the desecration of an “object of religious veneration” arises, even if it is clearly a holy image. In this respect, the answer appears negative, since the desecration must take place on the place or object concerned itself, and not only on its illustration or image (weder, op.cit., N 17 ad art. 261 CP; trechsel/vest, op.cit., N 6 ad art. 261 CP; ZR 85 (1986) n°44).
On the other hand, the problem lies in the notion of “offending”, “scorning” and “profaning”, as well as the “vile” nature of the offence, i.e. the subjective element of this offence.
The gesture of “shooting” at a religious representation and then showing the bullet-riddled image is likely to be perceived as offensive, provocative or insulting, by a certain number of believers, in the same way that shooting “dirties” the holy image as such. That said, it’s not clear that this gesture can be characterized as “vile” or “mean”. Likewise, the act as such does not mean that its object is contempt for the holy image of the Virgin Mary and the Child Jesus, and therefore for religious convictions. The outpouring of media attention suggests that the act is not insignificant, but the contemptuous nature of the attack cannot be considered manifest. It should be remembered that the interested party is reported to have stated that the image was used solely as a support for target practice. The answer is undecided and open to debate.
In subjective terms, it would still have to be shown that Sanija AMETI acted out of contempt for and denigration of the convictions and beliefs of others. Moreover, the offence must be interpreted restrictively, so as to punish only rude acts that undermine the requirement of tolerance. As mentioned above, the illustration was used solely as a support for target practice, and was not specifically chosen for its religious character.
In the final analysis, it is difficult at this stage to draw any definitive conclusions about the gesture in question.
Only a meticulous and precise analysis of the objective and subjective elements of the offence will enable us to decide whether the offence of infringement of freedom of belief and worship has been committed.
It remains to be seen how this case, if it were to take the criminal route, would reconcile the unshakeable nature of faith with the benefit of the doubt.
[1] https://www.parlament.ch/fr/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20184344.[2] Ironically, this motion was tabled by the Liberal Greens, Sanija AMETI’s own party, which is now seeking her exclusion.
