Is an association personally and directly affected by comments made about a large group of people whose interests it defends, to the point of becoming a plaintiff?
The Association Professionnelle des Gendarmes Vaudois (APGV) has announced that it has lodged a criminal complaint against a member of the Ensemble à gauche party for having photographed herself with a sign bearing the word “ACAB”.
Without discussing the question of whether the acronym “ACAB” is an affront to honor, we now wonder whether, on the basis of the information reported in the press, the APGV is personally and directly affected by an affront to honor targeting a group as a whole?
Indeed, the Swiss Federal Supreme Court has already had occasion to rule on similar configurations.
In an earlier decision published in ATF 100 IV 43still relevant today, 37 hunters acting in a personal capacity, 19 local Vaud sections of the “Diana” and the Hunters’ Society had lodged a criminal complaint against an article published in a magazine, which contained the following passage: “Is there no other distraction than the satisfaction of an incessant need to kill in all circumstances? They release their aggressive instincts, hunters say. So, they’re just bloodthirsty brutes, what do we have to offer victims to all the time?
In this ruling, our High Court held that “.a general attack on a large group of people, taken as a whole or in its entirety, is not likely to harm the honor of each of the individuals who belong to it, if there is no way of identifying a smaller group that stands out from the whole. If the attack is too general, it is diluted to the point of being considerably attenuated, and distracts the average citizen from considering or believing that it can really affect, without exception, all the individuals in the targeted community. The existence of a certain degree of precision in the designation of the group or persons targeted corresponds, moreover, to the aim of penal repression in matters of offence against honour, in the sense that this must remain the ultima ratio.“(ATF 100 IV 43, para. 3).
The Federal Court added that the attacks were levelled at all hunters as a whole, so that no individual hunter, nor any hunter from the canton of Vaud in particular, could feel that his or her personal honour had been damaged. so that articles 173 et seq. of the French penal code, which criminalize attacks on honor, can be applied.
This case law was recently confirmed in a decision published in ATF 143 IV 77, which held that offenses against honor only exist when the statement is addressed to a specific or determinable person. If the allegations are addressed indiscriminately to a group of people – e.g. the Swiss, civil servants, hunters or surgeons – the hypothesis of an offence against honour is not retained because the allegations, due to their generality, are so weakened and diluted that a specific member of the group can no longer be considered to be directly affected..
In the case in point, if the term “ACAB” refers to police officers, it would appear that this term refers to police officers as a whole and in their universality, so that offences against honour cannot be applied if we refer to the reasoning developed by the Federal Court in the two aforementioned judgments.
Insofar as the so-called “hunters” judgment was handed down under the aegis of the former cantonal codes of criminal procedure, it should be remembered that, under the Swiss code of criminal procedure currently in force, a “hunter” can only be prosecuted by a court of law. complaining party is defined as the injured party who expressly declares that he or she wishes to participate in the criminal proceedings as a plaintiff in both the criminal and civil cases (art. 118 al. 1 CPP). And the injured party is defined as any person whose rights have been personally and directly affected by an offence (art. 115 al. 1 CPP). As a result, APGV does not appear to have the status of injured party and, a fortiori, the status of plaintiff for the facts complained of.
Moreover, in the above-mentioned ATF 143 IV 77 concerning anti-Semitic remarks targeting the entire Jewish community, the Federal Court confirmed that it was up to the legislator to decide whether it might be appropriate to authorize from lege ferenda associations combating racial discrimination to exercise rights in criminal proceedings, which would require the creation of an express legal basis to this effect.
Now that we have clarified these legal points, it remains to be seen how the criminal prosecution authorities will receive this criminal complaint, the exact content of which we do not know, and which we learned of from the APGV’s press release as relayed by the media.
So, is this an announcement or the first step towards an attempt to overturn existing jurisprudence? It remains to be seen whether the gendarmes will suffer a different fate from that reserved by the TF for hunters, or whether they will be eaten with the same sauce as the latter.
By the way, do you remember the difference between a good hunter and a bad hunter? (2:58)😉
