Update: 04.03.2015

Expulsion of foreign nationals: Swiss Federal Supreme Court confirms precedence of basic and human rights

In a widely noticed verdict, the Federal Supreme Court overturned the conviction by the Canton of Thurgau Administrative Court against a Macedonian national with right of residence in Switzerland. The first instance verdict for qualified infringement of the Federal Narcotics Act (BetmG) in which the appellant was sentenced to conditionally to 18 months imprisonment was considered to be excessive.

Expulsion unproportional

In the analysis of its own jurisdiction and the practice of the European Court of Human Rights on Art. 8 ECHR, the Federal Supreme Court came to the conclusion that in the present case the withdrawal of the right of residence is to be considered as excessive. As arguments against the appellant were listed the facts that he was sentenced for qualified infringement of the Federal Narcotics Act, that he worked as courier and used his personal network to do so without having been in a state of emergency or addicted to drugs himself.

The Federal Supreme Court took into consideration in favour of the appellant that he has been living in Switzerland since the age of 7, visited all his schools here, did a training course as painter and he is socialised and integrated in Switzerland. In Macedonia he does no longer have any more family since practically all his family lives in Switzerland and his knowledge of the Albanian language is but fragmentary. In addition, the verdict was rendered three years after the commission of the crime and neither before or after the appellant ever was an offender.

The Federal Supreme Court added that a later revocation of the verdict may well be possible should the appellant not profit from the chance granted to him.

Expulsion article not directly applicable in the Federal Constitution

In a further step, the Federal Supreme Court consulted the application of Art. 121 Para. 3-6 Federal Constitution according to which foreign nationals shall lose their right of residence and all other legal rights to remain in Switzerland if they are convicted with legal binding effect of trafficking in drugs. It reached the conclusion that these provisions added to the Federal Constitution in 2010 within the framework of the expulsion initiative are not directly applicable as they are too vague and contradict constitutional law - in particular the fundamental principle of rule of law in Swiss constitutional order (Art. 5 Federal Constitution rule of law, proportionality, good faith, international law). In addition, it also contradicts a long list of regulations of international law such as the ECHR, the International Covenant on Civil and Political Rights, the Agreement on the Free Movement of Persons Switzerland – EU and the UN Convention on the Rights of the Child. Here the legislator has to assure the necessary balance between constitutional values at stake on a legal level, because the Federal Supreme Court «is bound to both federal acts and international law in case an insurmountable conflict of norms occurs (Art. 190 Federal Constitution)».

Clear sign in favour of basic and human rights also for foreign nationals

In its further deliberations, the Federal Supreme Court reaches the conclusion that, even if Art. 121 Para. 3-6 Federal Constitution should be applied directly, Switzerland could not refer to national law in order to justify noncompliance with an international treaty. This is due to both Art. 5 Para. 4 Federal Constitution and Art.27 of the Vienna Convention of the Law of Treaties. For the Federal Supreme Court, the nature of the ECHR and the individual complaints procedure accepted by Switzerland result in the obligation of Switzerland to prevent human rights violations in the individual case. It takes into account the judging of the legislator insofar this law does not contradict superior law. This means that in the particular case the Federal Supreme Court considered both the level of penalty and all further circumstances.

Swiss People’s Party (SVP) threatens to cancel the ECHR

The Federal Supreme Court’s verdict was regarded as careful and balanced. It does not form a new practice, but continues the jurisdiction on the relation between international and federal law. But commentators point out that even with this decision this relation has not been completely clarified. As the Federal Supreme Court emphasises, in votes on initiatives an isolated question is discussed and decided on and its embedding in the «constitutional overall structure». It cannot be that solely the will of the authors of the initiative is decisive for the implementation of an initiative. Swiss People’s Party representatives criticise the verdict and - once again – threaten to cancel the ECHR. This results in the question of whether or not basic and human right guarantees should be negotiable.

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