The assertion that supporters of tolerance are in reality the most intolerant regularly recurs in Swiss political debate. It often rests on a field observation: campaign posters of the right, and particularly those of the UDC, would be more frequently torn down, covered or vandalised than those of the Verts or the Parti socialiste. A law firm does not have to take a position on the political merits of such a thesis, nor to arbitrate between partisan sensitivities. It can, however, clarify what Swiss law provides when electoral material is damaged, what the notion of tolerance covers legally, and under what conditions the attribution of such acts to a given political camp can be supported.
A Field Observation Without Official Statistics
There are no federal statistics in Switzerland recording damaged posters by candidate's party. Municipalities and parties note the damage, sometimes file a complaint, but do not keep a register comparable from one canton to another. The phenomenon is real and known to all those who organise campaigns; its distribution among political groupings rests, however, on isolated observations, not on systematic data. This caveat is not rhetorical: in law, the classification of an act does not depend on the supposed political label of its perpetrator, but on established facts.
Vandalising Posters Is a Criminal Offence
Tearing down a poster, covering it with paint or tearing it constitutes in principle damage to property within the meaning of art. 144 du Code pénal. The poster belongs to the party, the candidate or the printer; destroying or damaging it without right infringes another person's property. Art. 145 du Code pénal concerns, for its part, the unlawful use of property, which may cover the moving of a panel. Where activists are prevented by coercion from conducting their campaign, art. 181 du Code pénal may also come into consideration.
Two practical consequences follow. First, the offence of damage to property is prosecuted on complaint: the criminal complaint must be filed within three months of knowledge of the act and of the perpetrator (art. 31 CP). Second, the asset value of a poster is often modest, but the repetition of the acts, their organisation and their public dimension count in the assessment. Evidence remains, however, the weak point: without testimony, without an image or without exploitable trace, the perpetrator remains unknown, whatever conviction one may have as to his political affiliation.
Tolerance Is Not a Legal Norm
Swiss law knows no « droit à la tolérance » and grants no certificate of openness to any camp. What it protects is more precise: freedom of opinion (art. 16 Cst.), the free formation of opinion and the faithful and reliable expression of the will of citizens in matters of political rights (art. 34 al. 2 Cst.), as well as protection of personality (art. 28 CC). Pluralism is guaranteed as a process, not as a virtue that some would possess and others not. The paradox of tolerance, often invoked in this debate, belongs to political philosophy; it has no direct translation into positive law.
This means that the law treats in an identical manner the torn-down poster of a UDC candidate and the covered-over poster of a candidate of the Parti socialiste. The limits on freedom of expression — in particular art. 261bis du Code pénal — apply in the same way to all. Having the judge or the authority arbitrate which formation would be « réellement » tolerant would moreover conflict with the principle of equality (art. 8 Cst.).
Attributing Acts to a Camp: Limits to Be Respected
Publicly asserting that the vandalism is the work of the left falls, in itself, within political debate, largely protected by freedom of expression. The situation changes when the accusation targets identifiable persons: the presumption of innocence (art. 32 al. 1 Cst.) and the protection of personality or honour (art. 28 CC, art. 173 CP) then require concrete elements. The case law of the Tribunal fédéral is consistent on this point: political criticism enjoys great latitude, the imputation of criminal conduct to named persons much less.
What Can Be Done in Practice
The first response is preventive and documentary: photograph the locations before and after a night, report the damage to the municipality, seek an official report. The second is criminal: a complaint within the three-month period, with a quantified description of the damage. The third is civil: an action based on the unlawful act (art. 41 CO) allows compensation for the loss to be claimed. Finally, cantonal and municipal regulations on political posting, read in the light of art. 34 al. 2 Cst., oblige the authorities to guarantee equitable access to locations and to react to repeated obstructions. It is through these channels, rather than through mutual invective, that the campaign remains a place for the confrontation of ideas.