On November 28, 2010, the Swiss people passed the deportation initiative, which was allowed five years for implementation. However, it took the [conservative right] Swiss People’s Party a mere two years to come up with the so-called implementation initiative,which was launched before parliamentary committees even had the chance to start discussing how to implement the original legislation.
This shows that the People’s Party is keen to build on the popularity of its deportation initiative by continuing to use foreign criminals as a vehicle for its election campaigning, writes Kurt Fluri.
The implementation of the deportation initiative has been approved by parliament. However, in light of the new initiative it has not yet come into force.
The implementation initiative has a very radical goal: the automatic deportation of convicted foreigners, even for petty crimes, regardless of how long they’ve been in Switzerland or their foreigner status, without any chance of evaluating whether the punishment is proportional to the severity of the crime.
The catalogue of offences covers a wide range, from burglary to genocide. Under the initiative a murderer will receive the same treatment as a thief who breaks into a shed and steals a bicycle. Even a second-generation immigrant who grew up in Switzerland, has no ties to her parents’ homeland, and only speaks a Swiss language will automatically be deported for her crime.
The same could happen to a family father who commits a petty crime and consequently has to leave his family behind in Switzerland. The fact that the family might then be forced to rely on social assistance is of no interest to the People’s Party.
Those are just two examples that show that the initiative would have totally disproportionate consequences and would violate not only our constitution but also the European Human Rights Convention (EHRC).
The initiators also do not take into consideration the fact that since the deportation initiative was approved, parliament has tightened criminal law, which now only allows limited proportionality assessments in individual deportation cases.
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With the new paragraph two of article 66 of the criminal code, parliament decided that a court could only refrain from deportation if it was a “serious hardship case for the foreigner and public interest did not outweigh the personal interests of the foreigner to remain in Switzerland”. Furthermore, the special situation of second-generation immigrants should also be taken into account.
Indiscriminate and arbitrary
Even this strict law for proportionality assessments is no longer sufficient for the People’s Party; it wants to deport foreign offenders without examining individual cases.
This shows that the implementation initiative is completely indiscriminate and arbitrary. The catalogue of offences that require deportation has by far exceeded the initial deportation initiative, which – as already mentioned – was approved by the people and cantons in 2010. The equal treatment of serious and petty crimes, without even examining offenders’ personal situations and origins, violates the constitution as well as the EHRC. Sooner or later the Federal Court or the European Court for Human Rights will have to annul relevant deportation decisions.
This will add fuel to the conflict between national and international law. We assume that the People’s Party wants to use this conflict to boost its initiative, which aims to have the prioritisation of national law over international law enshrined in the constitution.
Sooner or later this will lead to Switzerland terminating the EHRC and consequently leaving the European Council. If this is the case, we would be the second country to do so since Greece’s withdrawal under military dictatorship. The People’s Party obviously wants to isolate our country at any cost.
Bilateral treaties under threat again
Another aspect, which has so far been ignored even by our economic sector, is the link between the implementation initiative and the accord over the free movement of people. The latter states that EU citizens can only be deported if they commit a serious crime and endanger public safety.
It is pretty obvious that the implementation initiative, which does not differentiate between petty and serious crimes, will sooner or later violate the free movement of people accord and endanger the bilateral treaties between Switzerland and the EU.
For this reason it is incomprehensible and naïve of our business leaders not to actively fight against the implementation initiative because they think it has no economic relevance.
Constitutional state compromised
Furthermore, the People’s Party’s initiative violates the principle of the separation of powers. With its automatic deportation system it deprives the third power – the judiciary – of any room to manoeuvre. Instead, it gives judiciary powers to the legislature and ties our judges’ hands. With laws being made by the people and parliament, the three pillars of government would be reduced to two.
Apart from its inhumane goals, the implementation initiative is dynamite – constitutionally, politically and economically. It would turn our constitutional state into the opposite by replacing proportionality with arbitrary and indiscriminate deportation, and would also violate our principle of separation of powers.
For this reason, the implementation initiative goes far beyond just being a question of foreigners’ law. It raises fundamental questions that could destabilise our constitutional state and drive our country into isolation internationally.
The views expressed in this article are solely those of the author, and do not necessarily reflect the views of swissinfo.ch.