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Petition seeks to decriminalise helping irregular migrants

Pastor Norbert Valley (pictured) was fined by a Neuchâtel court for hosting a foreigner without a valid residence permit. Keystone

Amnesty International and Solidarity Across Borders have submitted a petition in Bern demanding that authorities stop treating acts of solidarity with irregular migrants as a crime. 

This content was published on December 4, 2019 - 13:18
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"People who provide assistance out of solidarity or compassion, without first checking the identity cards of the migrants they help, should no longer be sentenced," said Pablo Cruchon, Amnesty International's migration campaign officer.  

The call comes after multiple convictions of human rights defenders who have helped migrants without legal status. The petition garnered support from nearly 30,000 people and 200 lawyers. 

In 2018, 972 people were convicted of violating section 116 of the Federal Act on Foreign Nationals and IntegrationExternal link. However, only 32 cases actually concerned smugglers or persons benefiting from this activity, according to the NGOs’ press release. Most convictions were handed down against people acting in solidarity – or at least without any financial benefit.  

Article 116, which deals with "encouraging unlawful entry, exit or an unlawful period of stay", does not provide for any exemption from punishment, even if the assistance is provided for honourable reasons. A reduction of sentence to a fine is possible only in "minor cases".

  + The case of Anni Lanz who helped an Afghan asylum seeker

  + The case of pastor Norbert Valley who helped a Togolese rejected asylum seeker

The Swiss exception 

With its rigid legislation, Switzerland stands out as a special case.  

France, Germany, Italy, Austria, the Netherlands, Luxembourg, Sweden, Portugal, the Czech Republic, Poland, Romania, Malta and Cyprus provide for an exemption from punishment in cases of humanitarian reasons when it comes to assisting individuals who lack legal residency. A sentence is imposed only in cases where the "help" is profit-oriented. In Ireland, such assistance carries no punishment. 

Solidarity needed to uphold international law 

International law does not in any way oblige Switzerland to interpret in such a general way the offence of incitement to unlawful entry, exit or residence, argue the NGOs.  

A European Union directive - which is binding for Switzerland as a member of the Schengen area - explicitly grants Member States the right to exempt aid to refugees or undocumented migrants on humanitarian grounds from any penalty.  

The United Nations also calls for the protection of human rights defenders. 

"Amnesty International therefore calls on the new Parliament to accept Lisa Mazzone's parliamentary initiative, so that Switzerland respects the principles of freedom and fraternity, rather than criminalizing individuals providing assistance," said Pablo Cruchon in a statement.

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