Filing a lawsuit for cyberbullying seems only logical and consistent here. At the same time, it tragically reminds us of the related legal situation in Switzerland: in Switzerland, it is unimaginable that a woman disparaged as a man could successfully sue for (cyber)bullying or discrimination (or for insult). The Swiss justice system struggles immensely with combating cyberbullying. It already has difficulty addressing traditional workplace bullying, not to mention discrimination. If a lawsuit in Switzerland interpreted calling a woman a man as an insult, Swiss courts would most likely mock the plaintiff, as none of this is provable within the Swiss justice system.
Switzerland Lacks Laws Against (Cyber)Bullying and Discrimination
Switzerland lacks a specialized anti-bullying law as much as it does a specialized anti-discrimination law. Swiss politicians and lawyers often refer to the Swiss Penal Code as sufficient to prosecute cyberbullying, bullying, and discrimination criminally. That’s the theory.
However, how insufficient Swiss laws are in practice is something the public never learns. This is because there is virtually no court reporting left in Switzerland. Even if it existed, cases where no charges are filed (complaints about bullying, cyberbullying, and discrimination often end in non-prosecutions or dismissals of proceedings) would not be reported. Should a bullying or discrimination case in Switzerland actually reach prosecution, it is highly unlikely that the victims would receive compensation for their suffering. The Swiss legal system generally does not recognize economic and health damages that are not as evident as physical injuries could be as a consequence of a crime. Thus, Swiss Federal Court decisions that deny recognition of health damages (and, devoid of any empathy, sometimes outright mock the victims) are numerous. The calculus that usually underlies the federal court’s denial of health damages also blocks the criminal prosecution of (cyber)bullying and discrimination in Switzerland. This includes the often cynical requirements for proving harm.
Discrimination: Swiss Justice More Part of the Problem Than Solution
A problem with (cyber)bullying and discrimination lawsuits is the current arbitrariness in Swiss criminal law.* In other words, in a case involving an Olympian like Khelif and corresponding international interest, the Swiss justice might try to maintain an appearance of professionalism. But in ordinary cases, victims are generally at risk of having their lawsuits dismissed or not pursued. Not least, the Swiss judiciary, concerning discrimination against certain social minorities, is more part of the problem than part of the solution.
Translated by GPT-4
*Note: Arbitrariness in police and judiciary is a focus of this blog (as is the arbitrariness of mainstream media).
When Prosecutors Confuse Acquittal with Conviction
The creativity of Swiss lawyers isn’t just evident in their banking laws or attorney statutes, which have paved the way for international money laundering and tax fraud, and more, for decades. A recent farce from the Zurich Directorate of Justice shows how inventive they can be with Newspeak.
According to internal communications from the Zurich-Sihl Prosecutor’s Office, a “judgment has been rendered against A.B.” (name known to the editorial staff). Against?
In fact, in 2023, prosecutorDaniela Senn (MLaw) claimed in a legal notice that A.B. had attached a “ruling issued against” A.B. as evidence in a complaint. The curious thing about Senn’s wording is that the ruling A.B. had submitted with the complaint had fully acquitted A.B. of all charges. And not under the principle of in dubio pro reo (benefit of the doubt). The court had unequivocally accepted the justifications for the actions attributed to A.B. The Limattal/Albis public prosecutor’s office, which had brought charges against A.B., had chosen not to appeal the decision, nor did the private plaintiff pursue an appeal.
As of 2023, that case against A.B. dates back over ten years: the acquittal in favor of A.B. has been legally binding for more than ten years. The ruling became relevant again in 2023 when A.B. learned that someone had falsely claimed that A.B. had been convicted at that time.
Prosecutor Daniela Senn, who received A.B.’s subsequent complaint for defamation (slander) against the author of this false statement, responded with a decision not to pursue the case, which A.B. found completely incomprehensible. Senn primarily justified this decision by arguing that the defamation was time-barred: the document containing the obviously deliberate false claim that A.B. had been convicted in 2010 had apparently been written in 2017 (under Swiss law, defamation offenses expire four years after the date they are committed, in this case, 2021). According to Swiss law, the defamation would be considered time-barred, regardless of the fact that A.B. had only learned of this allegedly 2017-written defamatory document in 2023, after it had been proven to have been circulated in 2022.
Prosecutor Confuses Acquittal with Conviction
What A.B. understood even less: in her notice, the prosecutor misleadingly claimed that A.B. had submitted a “ruling issued against” A.B. as evidence. What Senn presumably meant was the acquittal in favor of A.B., although her wording implied a conviction. A.B. had submitted the ruling precisely because the proceedings had ended in A.B.’s favor, to demonstrate the falsehood of the 2017 written claim that A.B. had been convicted, thereby proving the defamation.
A.B. filed an appeal against the prosecutor’s decision not to open a criminal investigation for defamation, arguing that the offense had only been completed in 2022, when the defamatory document was circulated, and that the statute of limitations should begin from the day of its circulation in 2022. However, under Swiss law, defamation is considered a “state offense, not a continuing offense,” as the Zurich Higher Court informed A.B., thereby confirming the statute of limitations had expired in 2021.
OrwellianNEWSPEAK of the Zurich Justice Directorate
Regarding the misleading claim that A.B. had submitted a ruling issued “against” them, A.B. filed a separate supervisory complaint with the Office of the Attorney General. A.B. demanded an explanation as to why prosecutor Daniela Senn had made this mistake on the very point that was central to the defamation case. In her decision not to pursue the case, the prosecutor confused a conviction with an acquittal in a ruling that was meant to prove the falsehood of the claim that A.B. had been convicted. Was this carelessness? Intentional? Provocation?
The Zurich Directorate of Justice Being Trained in Newspeak.
Whether it was carelessness or intentional, the Zurich Office of the Attorney General could not say. It passed the responsibility for commenting on the matter to Daniela Senn’s superior, Chief Prosecutor Daniel Kloiber (lic. iur.). He took the easy way out: in his response to A.B.’s complaint, he offered the flimsy argument that the phrase “a ruling issued against” someone does not specify whether the ruling was an acquittal or a conviction. By definition, Kloiber’s statement amounts to Orwellian NEWSPEAK.
ChatGPT from OpenAI Clarifies – Zurich Authority Evades
A.B. analyzed the issue with the help of OpenAI’s GPT-4 language model. The conversation is publicly accessible (click link). The language model assessed Daniel Kloiber’s interpretation as “unusual”: stating that a “ruling issued against” a person does not imply a conviction was “misleading” and “problematic,” particularly in the legal context.
A.B. confronted the “Department of the Interior and Justice of the Canton of Zurich,” which supervises the Zurich prosecutors, with these findings. The response from Tassio Suter (MLaw), a representative of the Justice Department, was dismissive: “From our point of view, there is nothing more to add to the statement by Daniel Kloiber”. The assessment of Kloiber’s response by ChatGPT-4 as “unusual,” “misleading,” and “problematic,” or the confusion of an acquittal with a conviction, was entirely ignored. The representative of the Zurich Department of Justice sidestepped these questions with his curt reply.
Office of Special Investigations Responds
At least the Office of Special Investigations finally acknowledged in a written statement that prosecutor Daniela Senn’s wording was“unfortunate.” However, the Office of Special Investigations rejected the allegation of abuse of office that A.B. had filed against Daniela Senn, stating that the records clearly showed the ruling submitted by A.B. as evidence did indeed contain an acquittal in favor of A.B., as A.B. had claimed.
These records mean that Daniela Senn, at least, did not forge the written judgment to cover up her minor data falsification in the decision not to proceed with the case. That decision falsely claimed that a judgment had been issued ‘against’ A.B. As a result of Daniela Senn’s falsification, it creates the absurd implication that A.B. must be irrational or even insane as the falsification suggests that A.B. submitted a judgment against themselves as evidence to prove that the statement about their conviction was false and defamatory. This portrayal not only undermines A.B.’s credibility but paints a picture of someone acting irrationally, further damaging A.B.’s reputation by implying mental instability. This manipulation of the facts not only discredits A.B. but also amounts to a form of institutional bullying. By presenting A.B. as irrational or mentally unstable, Senn’s falsification distorts reality in a way that humiliates and undermines A.B., further amplifying the personal and reputational harm. However, following the clarification by the Office of Special Investigations, A.B. withdrew the penal complaint against Daniela Senn that had been filed in parallel with the supervisory complaint.
Comment:
If supervisory complaints to the Public Prosecutor’s Office and the Department of Justice of the Canton of Zurich, as in the present case, are deflected, it is a sign that democratic control of the authorities is not working. At least the Office of Special Investigations proved to be reliable. What remains is a discussion about the quality or negligence within Zurich’s prosecution offices. Also remaining is a debate about the arrogance of certain officials and prosecutors (Daniela Senn, Daniel Kloiber, Tassimo Suter). And let’s talk about institutional bullying, and bullies, too. Lastly, a debate remains on whether there is room for NEWSPEAK of the Justice Directorate in a democracy. In our opinion: absolutely NOT.
Update November 12, 2023: A.B. contacted the Ombudsman's Office of the Canton of Zurich by email on October 11, 2023. A.B. sent them the link to this article and asked about the experience with the Justice Department as described above: "How does the Ombudsman's Office of the Canton of Zurich view the procedure in the Canton of Zurich against errant public prosecutors when supervisory complaints apparently are no longer taken seriously and addressed?" On November 12, 2023, A. B. informed the Zurich Observer that they had not received a response from the Ombudsman's Office. The office is chaired by Mr Jurg Trachsel, a lawyer and member of the right-wing populist "Swiss People's Party" ("Schweizerische Volkspartei", SVP).
Political Responsibility for the Zurich Prosecutor’s NEWSPEAK Affair:
Since 2015, Ms Jacqueline Fehr of the Social Democratic Party is in charge of the Zurich Justice Directorate (image source: Canton of Zurich).
The Swiss “Beobachter” magazine reported in 2022 that since the introduction of the new Swiss Code of Criminal Procedure on January 1, 2011, about 90% of all criminal proceedings in Switzerland are now handled without a court trial through penalty orders. In 2023, the Beobachter awarded the prize for the “sloppiest penalty order of the year” to the Limmattal/Albis public prosecutor’s office.
The Beobachter reported on several problems resulting from the new Swiss Code of Criminal Procedure. At least 20% of the penalty orders are withdrawn after initial release. On March 7, 2022, the Beobachter headlined: “We are looking for the worst order of the year 2022 – join in!”
At a glance, it is clear in which direction criminal proceedings, which are now only conducted by public prosecutors without judicial assessment, must go.
Prosecutors: Much Ado About Nothing
Therefore, the outcry of the Beobachter, about 11 years after the introduction of the new Code of Criminal Procedure, is not surprising: The inherent problem of the new penalty system would have been foreseeable from the beginning.
In January 2023, the Beobachter named the “sloppiest penalty order” of the year 2022. A jury of three experts assembled by the Beobachter concluded that the Limmattal/Albis public prosecutor’s office of the canton of Zurich would be worthy of this negative award, due to a case that the Beobachter reported on April 1, 2022: “Two days in prison because the public prosecutor’s office was sloppy.”
The idea for this prize is based on the story of a man who spent 75 days in Swiss custody without knowing why: “The great power of the prosecutors.”
However, the Beobachter failed in their attempt to personally present the award to the head of the Limmattal/Albis public prosecutor’s office. In the report of January 26, 2023, “The Beobachter crowns the sloppiest penalty order of the year,” Lukas Lippert noted: “The reception was as frosty as the day. That prosecutor’s office refused on January 26 to accept the negative award for the worst order of the year. Beobachter editor-in-chief Dominique Strebel could not personally hand over the trophy.”
It is regrettable that the Beobachter is now almost the only editorial medium in Switzerland that still critically scrutinizes the police and judiciary. With the possible exception of the state-run Swiss television, all others conveniently look away. The mainstream journalists of the major publishing houses pick the raisins out of the cake of world events. They diligently leave the journalistic bone work in the uncomfortable environment of abuses of power by the state, the police, and the judiciary to whoever. As if there had never been human rights violations in Switzerland! In the Swiss Canton of Zurich, at least the Justice Commission of the Zurich Cantonal Council is now investigating the issue of abusive penalty orders. The question ist, whether that is enough.
