Update: 18.03.2015

Implementation of the deportation initiative includes hardship clause

In its decision on the implementation of the deportation initiative, the National Council changes to the position of the Council of States. With the inclusion of a hardship clause it voted for a more moderate strategy which complies with the tried and trusted principles of law of Switzerland. This decision has dismissed the possible automatic deportation. The hardship clause takes into consideration the principle of proportionality defined in Art. 5 of the Federal Constitution to a minimum extent.

The National Council’s decision respects the constitutional text which was accepted by a majority of Swiss voters in June 2010. The constitutional text is complemented by a hardship clause on legislative level according to which in an actual individual case the court can «refrain from an deportation if it would bring about a serious personal hardship for the affected foreign national and if the public interest in an deportation does not outweigh the foreign national’s private interest in staying in Switzerland». This clause should mainly live up to «the special situation of foreign nationals who were born or raised in Switzerland».

Many NGOs, such as the campaign «Schutzfaktor M – Menschenrechte schützen uns», welcome the decision regarding it as a «necessary and responsible decision in favour of human rights». All the same, the hardship clause is worded in a very restrictive way and it must be stated that the enforcement act will still lead to an extremely rigorous practice.

The Council of States has settled the remaining differences with the National Council on 16 March 2015. The implementation of the deportation initiative now has been definitely decided upon – should there be no referendum or enforcement initiative.

Bully-boy tactics by the Swiss People’s Party

As a reaction to the National Council’s decision, the Swiss People’s Party holds on to its enforcement initiative which will probably be voted on in 2016. Almost simultaneously, on 10 March 2015, the Swiss People’s Party started its collection of signatures for the popular initiative «Swiss Law instead of Foreign Judges» which aims at clearing the path for an enforcement of the deportation and enforcement initiative in a way contradicting the ECHR.

The Swiss People’s Party’s «Initiative on the deportation of Criminal Foreign Nationals» was accepted in a popular vote on 28 November 2010 by 52.9%. The counter-proposal by the Federal Council respecting the Constitution stood no chance with a mere 45.8% of the votes. The initiative created a new
Art. 121 of the Federal Constitution according to which foreign nationals who have committed certain crimes are automatically expulsed after having served their sentence. This automatism is in no way compliant to the proportionality principle.

At the end of June 2013 the Federal Council passed an implementation bill to the attention of the two chambers of Parliament, calling for a moving away from the strict automatism (cf. below for details). The compromise had been fought out in a long process. The proposal for a compromise raised concern especially because the Swiss People’s Party had in the meantime submitted a further popular initiative to the Swiss Federal Chancellery – the «Initiative for the Implementation of the Deportation of Criminal Foreign Nationals» (enforcement initiative) – which aims at writing into the Constitution a to-the-letter implementation of the expulsion initiative.

The implementation bill by the Federal Council was voted on in the National Council for a first time on 20 March 2014. A majority of 104 against 71 voted for a to-the-letter implementation according to the enforcement initiative, which has not even been presented to the voters to decide on. This first decision by the National Council disavowed the Federal Council. Civil society strongly criticised the decision since the National Council had taken the Swiss People’s Party’s enforcement initiative as draft version for its discussions on the deportation initiative, intentionally disregarding the constitutional principle of proportionality.

From the Council of States‘ important decision…

In June 2014, the Political Institutions Committee of the Council of States (PIC-S) declared the Swiss People’s Party’s enforcement initiative to be partially invalid, namely where it defines public international law. It declared that the separation of powers is violated by the instrument of the enforcement initiative because it is Parliament that is responsible for transferring an initiative into a law. The PIC-S did not give way to the pressure exerted by the Swiss People’s Party. In November 2014 it decided to call for a compromise in the implementation of the deportation initiative and moved away from an automatic deportation directly linked to certain crimes.

On 10 December 2014, on Human Rights Day, the Council of States decided to follow the motions of the Committee with 28 against 3 votes (9 abstentions).

… to a change of mind in the National Council

On 11 March 2015 the National Council decided to follow the line of the Council of States and to vote for a more moderate option than a year before.

Some National Councillors have probably calculated politically in their first decision to accept the Swiss People’s Party’s hard line. Because if the Parliament had supported the Federal Council’s bill without further ado, there would probably have been a vote on the implementation Swiss People’s Party’s initiative before the elections in autumn 2015.

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Commentary by humanrights.ch

What at first only seemed to be a special case of allegiance to the constitution proved to be a real step towards a violation of the Constitution. In autumn 2012, the Federal Supreme Court had made it clear that the legislator, in implementing the initiative, must absolutely live up to the unity of the Federal Constitution, especially the principle of the rule of law under Art. 5 of the Federal Constitution. The principle of proportionality and the legal right to full judicial review of every individual case as stated in Art. 8 ECHR would be invalidated should the legislator take over the initiative's automatism with respect to deportations. Nevertheless, this is exactly what the PIC-N now recommended.

What at first only seemed to be a special case of allegiance to the constitution proved to be a real step towards a violation of the Constitution. In autumn 2012, the Federal Supreme Court had made it clear that the legislator, in implementing the initiative, must absolutely live up to the unity of the Federal Constitution, especially the principle of the rule of law under Art. 5 of the Federal Constitution. The principle of proportionality and the legal right to full judicial review of every individual case as stated in Art. 8 ECHR would be invalidated should the legislator take over the initiative's automatism with respect to expulsions. Nevertheless, this is exactly what the PIC-N now recommended.

Had the legislator opted for the automatism without any exceptions it would have dropped important fundamental principles of the rule of law. Today it is clear that calculations with regard to the elections in autumn 2015 played an important role in the majority’s initial position, mainly avoiding a popular vote on the Swiss People’s Party’s enforcement initiative before then. This reasoning led to the fact that the PIC-S had to debate more intensely about the compromise which has now been found. The fear that Parliament wanted to avoid the vote on the enforcement initiative in general proved to be wrong in the end. Such calculation would have been notable since in that case Parliament would for the first time have taken a fully conscious decision to include regulations into an act that would have contradicted the Federal Constitution and the ECHR. The Federal Supreme Court would have been faced with a difficult dilemma.

Humanrights.ch is happy to see that this was not the case. The implementation now at least takes account of human rights protection to a minimum extent and allows a consideration of proportionality under certain circumstances.

The initiators of the deportation initiative frequently complain that the inclusion of the protection of basic rights and the principle of proportionality are a «blatant disregard of the popular will». They miss out on the fact that their inclusion stands for the respect towards the people since these values are an essential part of the Constitution accepted by the People and the cantons. The deportation initiative will have consequences in either way: already today there is a bigger number of cases in which families are torn apart because of expulsions.

The new deportation article in the Constitution

The deportation initiative has added three more paragraphs to Art 121 of the Federal Constitution. These state that all foreigners regardless of their residency status can lose their right of residence after lawful conviction for certain crimes. The Constitution explicitly mentions the following offences: murder, rape or other aggravated sexual offences, violent crime (e.g. robbery), human trafficking, drug trafficking or burglaries. People also lose their right of residence if they illicitly obtain social insurance or social welfare benefits.

Basic difficulties regarding the implementation

The implementation of the deportation initiative evokes profound difficulties, since an automatism as suggested by the new constitutional article is incompatible with international human rights treaties and contradicts the Federal Constitution, because neither sentence nor seriousness of an offence could be considered by a judge in the case of an expulsion. In the aftermath of the deportation initiative ballot, several actors (such as humanrights.ch) called for a legal solution which helps maintaining the principle of proportionality in individual cases. Especially the principle of non-refoulment and the right to family life must be adhered to.

SVP increases political pressure

The reactions to a planned conciliatory solution between an automatic deportation automatism and presently valid law have increased the fears that the SVP is not at all interested in a constructive solution of the problems related to the implementation of the expulsion initiative. Instead, this party apparently takes the present difficulties as an excuse to increase its efforts to revoke existing important international agreements on a political level.

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