The ruling made public on Wednesday by the Lausanne-based court involved a man who made the gesture at a rally of right-wing nationalists in the canton of Uri on August 8th 2010.
The court ruled on appeal that making a Hitler salute — lifting an arm up into the air at an angle of 45 degrees with a straight hand — is not punishable unless the person involved is proven to be “spreading racist ideology”.
Otherwise, a person is “free to express a personal sentiment or belief” with the gesture, according to the ruling.
The case concerned a raised-arm motion made by the defendant at Rütli, a mountain meadow on Lake Lucene, where federal government politicians traditionally give speeches to celebrate the Swiss national holiday on August 1st and to commemorate the country’s origins in 1291.
Neo-nazi groups have disrupted such ceremonies in the past before tighter security measures were put into place.
The incident occurred at a gathering of 150 members of the Swiss nationalist party, held a week after the national day, when the man, who was found guilty by a lower court, was observed publicly making a Nazi salute for 20 seconds.
Martine Brunschwig Graf, president of the Swiss federal commission against racism, was critical of the top court’s decision.
“The ruling can only mean there is no legal recourse against the Hitler salute,” Brunschwig Graf told the Swiss news agency SDA this week.
A Swiss law, which came into effect in 1995, bans displays of Nazi symbolism for the purpose of promoting racist ideology.
But the federal government has stopped short of banning the Nazi salute and the swastika symbol as neighbouring countries such as Austria and Germany have done.
The Swiss court ruling makes it difficult for some one who makes a Nazi salute or shouts “Heil Hitler” to be accused of “propagating a racist ideology”, Hans Stutz, a journalist who covers right-wing extremist groups told the ATS news agency.
Stutz warned that more frequent use of Hitler salutes is to be expected from such groups, given the difficulty in convicting someone under the current laws.
Marcel Niggli, professor of law at the University of Fribourg, told ATS the term “propagation” is moreover, deliberately imprecise.
To display a Nazi symbol, for example, is not considered in itself to be propagating an ideology, Niggli said.
The Tablet, an online magazine about Jewish news, ideas and culture from the US, called the court’s distinction about kinds of Hitler salutes “a rather small technicality, considering the instantaneous associations most people presumably make upon seeing a Nazi salute being performed.”
The Voice of Russia in covering the Swiss court decision noted on its website that a Nazi salute is regarded as Nazi propaganda that can be punishable by Russian law to a jail term of up to 15 days.
The Kremlin press service noted this week that Russian President Vladimir Putin has signed a bill making attempts to “whitewash Nazism” punishable by hefty fines and prison terms.