Update: 19.02.2014

Problems arising with basic rights when dealing with hooligans willing to resort to violence

In its judgement of 7 January 2014 the Swiss Federal Supreme Court mainly supported the stricter legal foundation established between the cantons for the fight against hooliganism. But the new legislation against violence in sports (also known as «hooligan concordat») curtails the football supporters’ basic rights too much in two aspects and has to be amended as a result. This agreement is already in force in 10 of the 27 cantons.

Revision of exclusion orders and the obligation to report to the police

According to the Federal Supreme Court, most provisions of the revised legislation against violence in sports are compatible with basic rights. With respect to two provisions of the concordat, however, the Court partially accepted two complaints. Amendments were made with respect to the minimum duration of exclusion orders which can now be decreed for less than a year. In addition, the Federal Supreme Court revoked a provision calling for a doubling of the period of the obligation to report at the police station in case of a breach of this measure without acceptable reasons. In the judges’ view, both of these measures represent an infringement of the principle of proportionality.

The Federal Supreme Court had to decide on the tightening of the revised legislation against violence in sports because persons from the cantons of Lucerne and Aargau had lodged a complaint.

The Basel region does not participate

In the cantons of Fribourg, Vaud, Neuchatel, Jura, Valais, Ticino, Solothurn, Zurich, St. Gallen, Aargau, Zug, Uri, Lucerne, Obwalden and both half-cantons of Appenzell participation in the concordat has already been decided on and has been accepted. The canton of Bern voted on the issue in February 2014. Up to now, only the two cantons of Basel have rejected the new legislation.

After only two years of operating with the original legislation against violence in sports, the Conference of Cantonal Justice and Police Directors (CCJPD) decided to tighten the relevant laws in February 2012. Key changes were the introduction of the requirement of authorisation for top-league football and ice-hockey games, the regulation of identity checks and body searches by the police and private security companies as well as the tightening of exclusion orders and obligations to report.

Against general suspicion

The measures provided by the newly revised legislation against violence in sports curtail the basic rights of visitors of football or ice-hockey games severely and in various ways. The most extreme change foreseen by the new legislation is the possibility for police forces to violate the protection of privacy of the fans (Article 13, Swiss Constitution and Article 8, ECHR), now allowing for strip-searches of fans.

Other measures also affect basic liberties strongly (such as the freedom of movement mentioned in Article 10, Para. 2 Swiss Constitution), for example the exclusion orders which can be imposed for up to three years, the monthly obligation to report at the police station after a one-time offence or the fact that visitors can be obliged to atted a match in another town only ba certain means of transport. In addition, the extension of the definition of violence is enormous and now includes assault, rioting or obstructing a legal act. The obvious aim of this strategy is to use Article 2 of the revised legislation against violence in sports to include all realistically possible offences that can be committed in the context of sports events.

No constitutional principles

The revised legislation against violence in sports represents an administrative measure. In this way it is possible to circumvent both the presumption of innocence and the burden of proof. According to the revised legislation against violence in sports, a sworn statement suffices to impose a measure on a fan and to constrain the basic rights guaranteed in the Constitution without any burden of proof or judge on a permanent basis.

Legal experts such as the former Basel public prosecutor and head of the police force Markus Mohler or the Basel expert in constitutional law Markus Schefer criticise the measures envisaged in the new legislation as not being proportionate and thus in contravention to Article 5 of the Swiss Constitution.

Hooligan database is especially problematic

Schefer’s criticism also refers to the hooligan database HOOGAN, which he regards as unconstitutional. HOOGAN collects the personal data whose behaviour attracted attention during sports events at home and abroad. In Schefer’s view such a database is only legitimate if it deals with issues that affect the security of the Confederation as a whole or issues that are inseparably connected to Switzerland's foreign-policy interests. But the hooligan database introduced along with the Federal Act on Measures to Safeguard Internal Security (ISA) goes way beyond this scope.

Federal Supreme Court: revised legislation against violence in sports is compatible with the ECHR

In October 2010 the Federal Supreme Court had already voiced its opinion on the revised legislation against violence in sports, and at that moment had also given its blessing to the measures. The concordat had entered into force on 1 January 2010 after it had been ratified by two dozen cantons by the end of 2009. Amongst other things it had included a measure that allowed «diehard» violent perpetrators to be held in custody preemptively by the police. The judges of the Federal Supreme Court considered these measures as well as all the others (exclusion orders, obligations to report, limitations on travelling abroad as well as the HOOGAN database) to be compatible with the ECHR.

At that point in time, the Federal Supreme Court had to decide on the measures envisaged in the revised legislation against violence in sports because private individuals and organisations (amongst them the organisation «Demokratische Juristinnen und Juristen Zürich») had lodged a complaint against the canton of Zurich joining the hooligan concordat. The applicants argued that the revised legislation violated various basic rights (Articles 10, 22 and 31 Swiss Constitution), the guarantee of fair judicial and administrative procedures (Articles 29, 29a, 30 and 32 Swiss Constitution), the principle of proportionality and legality as well as the contravention of guarantees accorded by the ECHR and the UN International Covenant on Civil and Political Rights (Article 6 Para. 2 and Article 5 Para 1 ECHR).

Approval by the cantons necessary

All 26 Swiss cantons have been members of the hooligan concordat since September 2010. It was launched by the Conference of Cantonal Justice and Police Directors (CCJPD) so as to be able to continue the measures the Federal Parliament had launched temporarily before EURO 2008 and the ice-hockey world championship 2009.

Further information

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