On November 28 the Swiss vote on an initiative which violates a bilateral accord with the European Union on the free movement of people. What would happen if it passes?
The rightwing Swiss People's Party collected more than 210,000 signatures – double the number needed – to bring the issue of the mandatory deportation of convicted criminals without Swiss citizenship to a nationwide vote.
If one believes the polls taken before the campaign started – and bear in mind that the polls got it spectacularly wrong concerning last year’s vote to ban the construction of minarets – the latest attempt to clamp down on foreigners living in Switzerland has good chances of succeeding.
Last month the EU sent a clear signal to Switzerland via a committee of experts at the Council of Europe: in its view, the initiative contradicts the accord signed in 1999 between Bern and Brussels on the free movement of people.
This would be the case, it said, if a foreigner – which would include an EU national – were automatically deported after being found guilty in Switzerland of one of the crimes set out in the initiative (see box).
Christine Kaddous, director of the Centre for European Legal Studies at Geneva University, agrees.
“The deportation of EU nationals is a restriction on free movement,” she told swissinfo.ch.
“Such a decision can only be taken on grounds of public order, public safety or public health – as laid out in the European treaties and the accord on the free movement of people between Switzerland and the EU.”
Kaddous, a professor of law at Geneva University, added that expulsion measures could be taken by EU member states or by Switzerland but only by taking into account the situation of each individual involved.
“It’s a question of determining whether public safety or order in a specific case trumps the interest of the person concerned to be able to continue to benefit from the right of free movement,” she said.
So how would Brussels react if Swiss voters give the proposal the thumbs up?
“The response is legal and political at the same time,” according to Kaddous. “Legally, disputes between Switzerland and the EU should be sorted out within the framework of a Swiss-EU committee.”
And if that doesn’t work? “If the dispute is considered absolutely fundamental, as a last resort one of the contracting parties can end the accord on the free movement of people and, consequently, other bilateral accords signed in the first series between Switzerland and EU [in 1999] because those are connected by a so-called guillotine clause,” she said.
“Potentially this initiative constitutes a risk for the Swiss economy – even if there are many stages between the vote and the cancellation of a treaty,” she said, adding that this allowed time for various political settlements.
“In any event, the termination of the accord on the free movement of people would be the result of a political decision on the part of the European Union.”
Oh no it isn’t
This risk doesn’t appear to worry the Swiss Business Federation, economiesuisse.
If the initiative is accepted, it would still have a long legislative journey ahead of it, according to one member who wished to remain anonymous.
The upshot is that economiesuisse has decided officially to not contribute to the anti-initiative campaign – with either money or words.
It reckons that what is at stake in the vote is public safety and criminal law – not the economy – adding that those connected to the economy could nevertheless take a stance.
Thus the Swiss Employers’ Association has come out in favour of the government’s counter-proposal (see box), which takes into consideration Switzerland’s international commitments, including its treaties with the European Union.
Swiss voters will have their say on November 28 on a proposal to automatically deport foreigners convicted of serious crimes. Government and parliament recommend voters reject it and accept a counterproposal instead.
The initiative - launched by a committee of the rightwing Swiss People’s Party - aims at the automatic deportation of foreigners convicted of serious crimes such as murder, rape, other serious sexual charges, violence such as armed robbery, drug trafficking, human trafficking, and breaking and entering. Welfare fraud is also included.
The counterproposal has tightened the list to (among others): premeditated murder, murder, rape, aggravated armed robbery, and serious violation of the drug law. Grievous bodily harm was added in by the House of Representatives. The counterproposal states that deportations should respect the Swiss constitution and international law.
The People’s Party launched its criminal foreigner deportation initiative in 2007 as a keystone of its electoral campaign of that year. Its use of a controversial poster, showing white sheep booting out a black sheep, caused controversy both in Switzerland and abroad.
Supporters collected more than 211,000 signatures in favour of the move – double the amount needed.
(Adapted from French by Thomas Stephens), swissinfo.ch