TF, 29.09.2026, 6B_624/2025
Facts
In March 2023, two defendants posted messages in WhatsApp groups. The first (A) shared, in a group of approximately 250 members, several comments targeting individuals based on their ethnic origin, including "That's a good Black guy," accompanied by a photograph of a Black football player. The second (B) shared, in a group of several dozen people, a swastika and a montage of Kanye West featuring the inscriptions "It never happened" and "They deserved it," referring to the Holocaust. Convicted in the first instance for racial discrimination, both defendants were acquitted on appeal due to a lack of established discriminatory motive. The Public Prosecutor's Office appealed to the Federal Supreme Court (consid 2.1, 2.3, and 3.1).
Law
Art. 261bis para. 4 SCC prohibits two types of conduct committed in public: firstly, belittling or discriminating against individuals in a way that violates human dignity based on racial, ethnic, or religious affiliation or sexual orientation; and secondly, denying, grossly minimizing, or justifying genocide or crimes against humanity. Publicity implies that the acts occur outside of a private circle. Their scope is assessed based on the understanding of an average recipient, taking the context into account. This is an abstract endangerment offense primarily protecting human dignity and equality (consid 1.1, 1.2, 1.2.1, and 1.2.2).
Subjectively, the offense requires intent, with eventual intent (dolus eventualis) being sufficient, as well as a discriminatory motive primarily expressing hatred or contempt toward a protected group. This motive may be inferred from external indicators. It is practically intrinsic to the justification of genocide and, in principle, to the denial of the Holocaust, particularly when it conveys the "Auschwitz lie" (consid 1.3, 1.3.1, 1.3.2, 1.4, 1.4.1, and 1.4.2).
The Federal Supreme Court is bound by cantonal findings regarding internal facts, unless they are arbitrary. However, it reviews the legal application of the concept of intent, particularly when it is inferred from objective circumstances (consid 1.5 and 1.6).
Application to the specific case
Regarding B, the images clearly constitute a denial and justification of the Holocaust. Their antisemitic meaning could not have escaped him. By spontaneously sharing them with dozens of people, he necessarily accepted, at least through eventual intent, the violation of the dignity of Jewish people. His discriminatory motive must be upheld (consid 2.3, 2.4.1, and 2.4.2).
Justifications based on humor, provocation, alcohol, youth, or a lack of prior convictions are insufficient to exclude this motive. Systematically accepting such excuses would strip the provision of its substance. Other motivations may coexist with a primarily discriminatory intent. The acquittal is therefore based on an arbitrary assessment and violates federal law (consid 2.4.2 and 2.4.3).
Regarding A, the cantonal court did not examine the objective conditions of the offense, particularly the discriminatory scope of the message "That's a good Black guy." The Federal Supreme Court is therefore unable to properly review the subjective element. Art. 112 LTF requires sufficient reasoning and justifies the remand (consid 3.1, 3.2, and 3.3).
Outcome
The appeal is granted. B is found guilty of racial discrimination; the case is remanded to determine his sentence and settle cantonal costs. For A, the acquittal is overturned and a new examination of the constituent elements is ordered. B shall bear 1,500 francs in court costs; A is awarded 3,000 francs in legal fees to be paid by the Canton of Vaud (consid 4.1 and 4.2).