Update: 12.12.2018

Anti-terrorism measures: Overview of the Federal Council’s overall strategy

Deadly terrorist attacks in France, Germany and Belgium have led Swiss authorities to implement a number of measures and create legal packages to counteract terrorism using preventive measures. These hectic activities resulted in a system of four pillars of prevention and repression, of which two (the Intelligence Service Act and the National Action Plan to Prevent and Counter Radicalisation and Violent Extremism) have already been decided on. The two legal packages on the tightening of penal provisions and on preventive police measures have not yet been discussed in Parliament.

The following article provides an overview of the four pillars to counteract terrorism and analyses them critically. It also includes a statement from the Association humanrights.ch on the draft of the Federal Act on Police Counterterrorism Measures (PCTA) which humanrights.ch wholly and unreservedly rejects.

In an article from late 2015, humanrights.ch outlined the background of this new focus on preventive instruments, and provided sources and reference points on the discussion dating from 2014.

The Intelligence Service Act as a precondition

In the fight against terrorism, Swiss authorities rely heavily intensified monitoring activity by the Federal Intelligence Service (FIS) and its cantonal branch offices. This is particularly true with regard to the Internet and electronic means of communication. This was made possible by the vote on the revised Intelligence Service Act (IntelSA), which was adopted by Swiss voters in 2016 with 65.5% of the votes. The new IntelSA provided the Intelligence Service with far-reaching competencies and instruments to collect private information. Since January 2018, the FIS can tap telephone conversations, bug private rooms, enter computers to manipulate them (Art. 26 IntelSA), and tap cable connections to collect data (Art. 39 IntelSA) should internal or external security or substantial national interest be at stake. Although the new IntelSA is not an official pillar of the Confederation’s strategy to counteract terrorism, it sets an indispensable precedent for the new instruments of this strategy.

Architecture of flawless emergency prevention

The Confederation’s overall anti-terrorism strategy is based on the illusion of a perfect emergency response. It mainly focuses on a preventive set of instruments, both in the area of criminal law (Art. 260ter IntelSA), meaning cooperation between communal and cantonal authorities (National Action Plan NAP), and in the field of police work (Federal Act on Police Counterterrorism Measures PCTA).

Tightening of criminal law

The unwieldy name “Adoption and Implementation of the Council of Europe Convention on the Prevention of Terrorism, the appurtenant additional protocol and the strengthening of criminal justice instruments against terror and organised crime” hides a penal law revision. The extension of the Council of Europe Convention, which focuses on the persecution of possible future “foreign combatants,” was a welcome thematic anchor for the tightening of criminal law in Switzerland.

The existing Art. 260ter Criminal Code was changed to include a vague description of “terrorist organisations” and their supporters. This replaced the Provisional Federal Act on the Proscription of Al-Qaeda, Islamic State and Associated Organisations.

From now on, only judges will be able to rule on whether or not a group is a terrorist organisation. This violates both the requirement of certainty and the principle of legality, which form the basis of the Swiss criminal code (Art. 1) and of human rights treaties (in particular Art. 7 ECHR).

This is just one criticism that has been voiced by public actors in response to the consultation procedure.

The original plan to replace the Provisional Federal Act the Proscription of Al-Qaeda, Islamic State and Associated Organisations with the revised criminal code package starting in early 2019 has been revised and the federal decree will remain valid until 2022.

On 14 September 2014, the Federal Council submitted the dispatch on the criminal code. Parliamentary debate will probably begin during winter session 2018.

National Action Plan to Prevent and Counter Radicalisation and Violent Extremism (NAP)

In September 2016, the Federal Council assigned the delegate of the Swiss Security Network to develop a National Action Plan to Prevent and Counter Radicalisation and Violent Extremism. The report was prepared in close cooperation with various cantonal and communal representatives and presented to the public on 4 December 2017. The NAP contains 26 measures in the fields of i) knowledge and expertise, ii) cooperation and coordination, iii) prevention of extremist thinking and groups, iv) withdrawal and reintegration, and v) international cooperation. Instruments range from classic “soft” prevention work to police-led threat management.

The NAP suggests, for example, an appropriate training of teaching staff, youth workers, and sports coaches so they can spot radicalisation and violent extremism at an early stage (e.g. measures 2 and 5).

Another suggestion (measure 14) aims at building a cross-authority and cross-institutional cantonal threat management system under the leadership of the police forces. By applying this cantonal threat management, authorities try to detect radicalised individuals that may become a danger to others as early as possible.

In practice, this would create a comprehensive register of potentially dangerous individuals. Numerous cantons (SO, ZH, BL NE, GL, LU) already use such registers. The registers of “potentially dangerous individuals” will be introduced and networked across Switzerland by means of information exchange (measure 15). These registers will then form the basis on which the police can implement preventive measures.

Preventive police measures

The Federal Act on Police Counterterrorism Measures (PCTA) aims to strengthen police tools to guarantee internal security alongside standard criminal prosecution. The suggested measures are based on the NAP and have the new Intelligence Service Act as a prerequisite.

The PCTA officially has the following objectives: presumed radicalised individuals will be prevented from leaving Switzerland for an embattled area (e.g. by introducing requirements to report to the authorities, prohibiting travel abroad, or confiscating identity documents) and such individuals will be separated from a criminogenic environment (e.g. by means of prohibition of contact).

The suggested new police competencies, which include decreeing electronic ankle bands or house arrest more closely, represent major interventions into private life. What is even more worrying is that the suggested measures are in direct conflict with basic and human rights, namely the rights of freedom of movement, personal freedom, and the right to privacy. They are therefore unconstitutional (Art. 36, para 4 Federal Constitution) and incompatible with the European Convention on Human Rights.

The highly problematic core of the bill is the introduction of the expression “potential offender” as a legal term. This intangible concept, in conjunction with the cantonal registers, allows the Federal Office of Police (fedpol) to turn its attention on innocent individuals, based on hypotheses from the intelligence service, and to impede their basic rights by the above-mentioned measures.

Humanrights.ch clearly takes the stand that the whole PCTA package must be refused. Further explanations for this assessment can be found in the consultation procedure responses by the Association humanrights.ch and other human rights organisations.

Conclusion

Switzerland has recently created several sharp instruments to fight terror: the IntelSA, the NAP, and the anti-terror passages in the criminal code. The latter still needs to be reasonably adjusted by the chambers of parliament. As a next step, the experiences drawn from the application of all these instruments must be collected and assessed. It would be completely exaggerated and wrong to expand the existing instruments by the suggested preventive police measures at present because they systematically undermine the constitutional limits, and open the doors wide to totalitarian control of individual private life.

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