Federal popular initiative "For the deportation of criminal foreigners (deportation initiative)"

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The federal popular initiative "For the deportation of criminal foreigners (deportation initiative)" was a popular initiative of the Swiss People's Party (SVP). She came along with a direct counter-proposal 28 November 2010 to the vote and was adopted by a majority of 52.9 percent of voters and 17.5 stalls accepted.

The initiative requires the expulsion of foreign nationals who are legally present in Switzerland and who have been legally convicted of one of a list of offenses (serious offenses against life and limb as well as social welfare abuse , drug trafficking and burglary ). She was referring to crime against foreigners .

The Aliens Act of 2005 (AuG) already provided for the possibility of expelling offenders, but this decision was in any case at the discretion of the competent authorities. The initiators wanted to ensure that a conviction is automatically combined with an expulsion of certain offenses. The actual execution of the expulsion through deportation (despite the title) is not affected by the initiative, but remains regulated as before by Art. 69–71 AuG.

Like the initiative, the counter-draft provided for compulsory expulsion in the event of a final conviction for serious crimes. However, he weakened the initiative's call for compulsory deportation in the event of social welfare abuse by only making deportation compulsory when a prison sentence of at least 18 months has been imposed. On the other hand, the counter-proposal went beyond the demands of the initiative, where it provided for compulsory deportation if a prison sentence of at least two years is imposed (even if shorter prison sentences are accumulated within a period of ten years), regardless of the type of offense punished.

On October 15, 2007, the SVP announced that 200,000 signatures had already been collected within three months. In February 2008 the SVP announced that the deportation initiative had been submitted to the Federal Chancellery with around 211,000 signatures. On February 15, 2008, the Federal Chancellery confirmed that the initiative came about with 210,919 valid signatures (out of a total of 212,028 submitted).

The initiative

Content and wording

The initiative stipulated that foreigners residing in Switzerland would lose their right of residence if they were found legally guilty of having committed a serious offense (violent crime, drug trafficking or burglary), or if they improperly received social assistance or social security benefits. Like the popular initiative “Against the building of minarets” adopted in 2009 , this initiative came from the Swiss People's Party (SVP).

The popular initiative had the following wording:

(I)   The Federal Constitution of April 18, 1999 is amended as follows:

Art. 121 para. 3-6 (new)
  2. They (= foreigners) lose their right of residence and all legal rights to stay in Switzerland regardless of their status under the law on foreign nationals if they:
a. have been convicted of an intentional homicide, rape or other serious sexual offense, another violent offense such as robbery, human trafficking, drug trafficking or a burglary; or
b. have improperly received social security or social assistance benefits.
  2. The legislature describes the facts according to paragraph 3 in more detail. He can add further facts to them.
  3. Foreign nationals who lose their right of residence and all legal entitlements to reside in Switzerland in accordance with paragraphs 3 and 4 must be expelled from Switzerland by the competent authority and subject to an entry ban for 5-15 years. In the event of repetition, the entry ban should be set for 20 years.
  4. Anyone who disregards the entry ban or otherwise illegally enters Switzerland is liable to prosecution. The legislature enacts the relevant provisions.

State concerns

Some constitutional lawyers had expressed doubts about the validity of the deportation initiative, as it violated mandatory international law. If an initiative violates mandatory international law, it must be declared invalid by the Federal Assembly in accordance with Art. 139 Paragraph 3 of the Federal Constitution . The non-refoulement principle is one of the compulsory international law .

The initiative committee was of the opinion that its initiative was compatible with mandatory international law.

The Federal Council was of the opinion that the popular initiative does not violate mandatory international law. However, it would lead to considerable collisions with the rest of international law and the federal constitution.

Controversy over legal flaws

The opponents of the initiative criticized the fact that the facts of “burglary” and “improper receipt of benefits from social insurance or welfare” are not facts under Swiss criminal law. The proponents, however, stated that an implementing law should be passed anyway and that it was the task of the legislature to give concrete form to the initiative.

Application to EU citizens

In addition to concerns about constitutional law, objections were also raised regarding compatibility with the existing agreement on the free movement of persons with the European Union .

Freedom of movement is one of the seven sectorial agreements Bilateral I . It came into force on July 1, 2002, and all applicable provisions of the European Court of Justice (ECJ) in the area of ​​the free movement of persons up to that point were adopted. However, this does not apply to the provisions subsequently decreed.

The free movement of people gives all citizens of the European Union an individual right to entry and residence in Switzerland. This right can be limited under certain conditions in accordance with the agreement. Possible requirements are:

  • the protection of public order,
  • the security and
  • health.

The expulsion revokes the right to free entry and residence. It is a limitation of this individual claim.

The definition of the term “protection of public order” can have a different meaning for each country. For Switzerland, these interpretations were reviewed and determined by the judiciary (ECJ) by July 1, 2002. The “protection of public order” corresponds, among other things, to the protection of Articles 8–11 of the European Convention on Human Rights (ECHR).

According to the interpretation of " Foraus ", expulsion must be ordered due to individual misconduct by an EU foreigner. However, it must not be used for general preventive purposes.

According to Article 3 (2) of Directive 64/221 / EEC (which, however, is not binding for Switzerland as a non-EU member and has not been included in the bilateral agreements), a criminal conviction is not sufficient to refer to the term «protection of public order ». This also requires:

  • the gravity of the offense and
  • the existence of a risk of recurrence or relapse for a "threat to public order".

According to Foraus , abuse of social welfare does not pose a sufficient threat to expulsion.

An automatic expulsion system was banned by the European Court of Justice for EU member states in 2007 (case C-50/06 Commission v. The Netherlands). According to bilateral agreements, the case law of the ECJ is only valid for Switzerland until July 1, 2002. The ban on automatic deportation is therefore not binding for Switzerland under the bilateral agreements.

Counter proposal

Direct counter-proposal

The Federal Council decided to put the people's initiative “For the deportation of criminal foreigners (deportation initiative)” and, as a direct counter-draft, the “Federal Decree on the expulsion and expulsion of criminal foreigners under the Federal Constitution” to a vote on November 28, 2010.

The counterproposal contained a new Art. 121b “eviction and removal” in aliens and asylum law. In contrast to the initiative, the counter-proposal made the compulsory expulsion partly dependent on the sentence imposed:

  • For serious offenses that are threatened with a prison sentence of at least one year, compulsory expulsion in the event of a final conviction (no difference to the initiative)
  • Compulsory expulsion for fraud or other criminal offenses in the area of ​​social assistance with a prison sentence of at least 18 months (weakening of the initiative)
  • for any other offenses compulsory expulsion with a prison sentence of at least two years (tightening compared to the initiative)
  • Drug trafficking and burglary offenses are no longer mentioned separately (the offense of burglary does not exist in Swiss criminal law anyway) and fall under the general provision of expulsion from prison sentences of two years or more (weakening of the initiative)
1. Foreign nationals can be expelled from Switzerland if they endanger the security of the country.
2. Foreign nationals lose their right of residence and are expelled if they:
a) have committed murder, intentional homicide, rape, serious bodily harm, qualified robbery, hostage-taking, qualified human trafficking, a serious violation of the Narcotics Act or another criminal offense threatened with imprisonment of at least one year and are therefore legally binding were convicted;
b) have been sentenced to imprisonment of at least 18 months for fraud or other criminal offense in the area of ​​social assistance, social insurance or public service charges or for fraud in the economic area; or
c) have been legally sentenced for another offense to imprisonment of at least two years or to several imprisonment sentences or fines totaling at least 720 days or daily rates within ten years.
3. When deciding on eviction and removal as well as the withdrawal of the right of residence, the fundamental rights and principles of the Federal Constitution and international law, in particular the principle of proportionality, must be observed.

In addition, the federal decree introduced Art. 121a into the law on aliens and asylum, which defines the term “integration”.

Original indirect counter-proposal by the Federal Council

The Federal Council initially had an indirect counter-proposal drawn up on the legislative level, which respected the concerns about international law and the constitution. In addition, uniform integration standards should be defined, which was due to the demands of the National Councilors Philipp Müller and Gerhard Pfister . The consultation was carried out by the Federal Department of Justice and Police (FDJP) under Federal Councilor Eveline Widmer-Schlumpf . The deadline for comments by the cantons and political parties was April 15, 2009. The indirect counter-proposal changed the criteria for expulsion (neither initiative nor counter-proposal concern the actual “ deportation ”) compared to the initiative. It contained the compulsory deportation for imprisonment from two years. In 2007, around 200 foreigners fell under this criterion in Switzerland.

The indirect counter-proposal was finally dispensed with in favor of the direct counter-proposal.

Political debate and voting campaign

Collection of signatures (2007)

The campaign associated with collecting signatures coincided with the SVP's election campaign for the 2007 Swiss parliamentary elections . The controversial sheep poster advertising the initiative showed how a black sheep is pushed from its white conspecifics from the pasture that is shown as a Swiss flag. The motif was partly as a racist or xenophobic conceived and made international headlines; the UN special rapporteur on racism, Doudou Diène , addressed a question to the Swiss Federal Council in this regard .

On September 18, 2007, when Christoph Blocher was present in Lausanne , a demonstration against the initiative led to violent riots.

In the weeks before the parliamentary elections, the protests of left and left-wing autonomous groups against the deportation initiative and against the SVP intensified. On October 6, 2007, «Autonome» tried to stop a move of around 10,000 SVP supporters in Bern. Eighteen police officers and three demonstrators were injured in the street riots that followed. The riots in Bern attracted worldwide attention and even appeared on the front page of the New York Times , which put racist tendencies in Switzerland at the center of its reporting.

Federal Council opinion

The Federal Council, represented by Justice Minister Eveline Widmer-Schlumpf , recommended Parliament's counter-proposal on the initiative, arguing that the list of offenses was “rather random”; The seriousness of the act should be decisive for the loss of the right of residence. Parliament's counter-draft takes up the concerns of the initiative by bindingly regulating the withdrawal of the right of residence of delinquent foreigners and thus restricting the discretion of the courts, but it is clearer and more comprehensive than the initiative. Constitutional lawyers from various Swiss universities criticized the Federal Council's statements against the initiative, namely the accusation that even minor offenses such as burglary must be deported as inaccurate.

Results

The initiative was only rejected in the French-speaking cantons of Geneva , Vaud , Friborg , Neuchâtel , Jura and in the German-speaking canton of Basel-Stadt .

The initiative was adopted with a majority of 52.9% of the vote. The approval was highest in the rural cantons of Schwyz (66.3%), Appenzell Innerrhoden (65.7%), Ticino (61.3%), Uri (61.3%), Thurgau (61.1%) , Glarus (60.8%), Nidwalden (60.8%) and Obwalden (60.3%). In the Romandie (French-speaking Switzerland), the initiative was rejected by a majority. As the only predominantly German-speaking canton, Basel-Stadt also rejected the initiative.

The majority of the Swiss Abroad rejected the deportation initiative, namely in 7 of 8 cantons in which their votes are recorded separately. The discrepancy in the canton of Appenzell Innerrhoden, for example, is glaring: while the Swiss population accepted the initiative with 65.7%, it was only 39.3% of the Swiss abroad.

  • Yes (15 5 / 2 Scores)
  • No (5 1 / 2 Scores)

    • The counter-proposal supported by the CVP, the FDP, the BDP, the Green Liberals and parts of the SP as well as the Federal Council, which was rejected by 54.2% of the voters and all cantons, had no chance. The no rates were between 50.6 (Zug) and 60.9% (Schwyz). Interestingly, however, the counter-proposal received a majority of the people's votes with 50.4% in the key question, which would have become effective if the vote had been given twice . With the professional votes, however, the initiative also swung out at 15: 8.

    Deportation initiative - official final results
    Canton Yes (%) No (%) Participation (%)
    Kanton AargauKanton Aargau Aargau 57.3 42.7 52.9
    Canton of Appenzell AusserrhodenCanton of Appenzell Ausserrhoden Appenzell Ausserrhoden 56.0 44.0 57.4
    Canton of Appenzell InnerrhodenCanton of Appenzell Innerrhoden Appenzell Innerrhoden 65.7 34.3 50.6
    Canton of Basel-CountryCanton of Basel-Country Basel-Country 53.5 46.5 51.7
    Canton of Basel-StadtCanton of Basel-Stadt Basel city 43.4 56.6 56.2
    Canton BernCanton Bern Bern 53.7 46.3 50.8
    Canton of FriborgCanton of Friborg Freiburg 48.6 51.4 47.3
    Canton of GenevaCanton of Geneva Geneva 44.2 55.8 54.3
    Canton of GlarusCanton of Glarus Glarus 60.8 39.2 45.2
    canton of Grisonscanton of Grisons Grisons 52.6 47.4 45.5
    Canton of JuraCanton of Jura law 42.7 57.3 42.1
    Canton lucerneCanton lucerne Lucerne 55.9 44.1 57.2
    Canton of NeuchâtelCanton of Neuchâtel Neuchâtel 44.0 56.0 47.8
    Canton of NidwaldenCanton of Nidwalden Nidwalden 60.8 39.2 61.0
    Canton of ObwaldenCanton of Obwalden Obwalden 60.3 39.7 58.5
    Canton of SchaffhausenCanton of Schaffhausen Schaffhausen 56.3 43.7 67.9
    Canton of SchwyzCanton of Schwyz Schwyz 66.3 33.7 57.9
    Canton of SolothurnCanton of Solothurn Solothurn 58.1 41.9 55.1
    Canton of St. GallenCanton of St. Gallen St. Gallen 59.6 40.4 53.7
    Canton of TicinoCanton of Ticino Ticino 61.3 38.7 46.1
    Canton of ThurgauCanton of Thurgau Thurgau 61.1 38.9 51.6
    Canton of UriCanton of Uri Uri 61.3 38.7 49.4
    Canton of VaudCanton of Vaud Vaud 41.8 58.2 51.9
    Canton of ValaisCanton of Valais Valais 51.8 48.2 54.3
    Canton of ZugCanton of Zug train 55.0 45.0 57.9
    Canton ZurichCanton Zurich Zurich 50.8 49.2 55.8
    Federal coat of arms ÜÜÜSwiss Confederation 52.9 47.1 52.9

    implementation

    In October 2012 the Federal Supreme Court passed a decision according to which the constitutional provision introduced by the initiative is not directly applicable, but must first be specified by parliament.

    After some discussions, in the final vote on March 20, 2015, Parliament passed an implementation proposal (amendment of the Criminal Code and the Military Criminal Code). The referendum period expired on July 9, 2015.

    However, early on during the parliamentary debates on the drafting of a legal text to implement the initiative, the SVP was of the opinion that the majority of the parliament did not intend to implement the initiative literally and literally. That is why the SVP launched the federal popular initiative “To enforce the deportation of criminal foreigners (enforcement initiative)” , which came about on December 28, 2012, but was rejected on February 28, 2016 by the people and the cantons.

    The legal provisions on the deportation initiative have been in force since October 1, 2016. The Swiss Public Prosecutor's Conference (SSK) has issued a recommendation for uniform application. This explicitly addresses the controversial hardship clause and calls for deportation for applications for detention from one year of age (as a rule).

    See also

    Web links

    Individual evidence

    1. ↑ Referendum on November 28, 2010. In: website of the federal administration (the percentage of yes and no votes given here is based on the number of valid ballot papers; the valid percentage is the one given in the canton overview, which is based on the total of yes and no votes)
    2. ↑ Finally create security!  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. In: SVP website@1@ 2Template: Dead Link / www.svp.ch  
    3. ↑ SVP launches voting campaign «Yes to the deportation initiative». In: Website of SVP Zealand
    4. ^ Federal popular initiative "for the deportation of criminal foreigners (deportation initiative)". In: Website of the Federal Administration (announcements by the departments and offices; PDF; 474 kB)
    5. ^ Wording of the popular initiative. In: Website of the Federal Chancellery
    6. ↑ Deportation initiative submitted. ( Memento from January 2, 2011 in the Internet Archive ) In: Tages-Anzeiger Online . February 15, 2008
    7. ↑ Wording of Art. 139 BV. In: Federal Administration website
    8. ^ Popular initiative for the deportation of criminal foreigners (deportation initiative) Argumentarium, SVP Switzerland
    9. ↑ sda: Federal Council wants counter-proposal to SVP request. In: 20 minutes . October 15, 2008
    10. ↑ a b Deportation initiative ( Memento from November 28, 2010 on WebCite ) (PDF; 593 kB)
    11. ^ Case C-50/06. Judgment of the Court of Justice (Third Chamber) of 7 June 2007. Commission of the European Communities v Kingdom of the Netherlands. In: EUR-Lex .
    12. ↑ Templates for the federal referendum of November 28, 2010. ( Memento of the original of January 6, 2016 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Federal Administration website. June 30, 2010 @1@ 2Template: Webachiv / IABot / www.bk.admin.ch
    13. ↑ Federal decree on the expulsion and expulsion of criminal foreign nationals within the framework of the federal constitution (counter-draft to the popular initiative “for the deportation of criminal foreign nationals (deportation initiative)”) of June 10, 2010. In: Federal Administration website (PDF; 486 kB)
    14. ↑ Deportation: SPK NR is waiting for indirect counter-draft and rejects FDP proposal. ( Memento of the original from January 14, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Website of the association «Our right - Notre Droit - Nostro Diritto - Noss Dretg». November 20, 2008 @1@ 2Template: Webachiv / IABot / www.unser-recht.ch
    15. ↑ Amendment to the Swiss Criminal Code (online access VOSTRA). In: website of the federal administration (amendment of the BG on foreigners as an indirect counter-proposal to the «deportation initiative»)
    16. ^ Report on the amendment of the Federal Law on Foreign Nationals as an indirect counter-proposal to the “Deportation Initiative”. In: Federal Office for Migration (today State Secretariat for Migration). January 2009 (PDF; 219 kB)
    17. ^ Protests and a nice Christoph Blocher. In: Neue Zürcher Zeitung . September 18, 2007
    18. ^ Street battles in Bern. In: ARD Tagesschau . October 6, 2007
    19. ↑ Elaine Sciolino: Immigration, Black Sheep and Swiss Rage. In: New York Times . October 8, 1970
    20. ↑ «Deportation initiative would be difficult to implement» - Minister of Justice Widmer-Schlumpf launches voting debate. In: Neue Zürcher Zeitung. 4th October 2010
    21. ↑ Andrea Sommer: Professors harshly criticize the Federal Council - and hide. In: Tages-Anzeiger . November 18, 2010.
    22. ↑ a b Olivia Kühni: Yes to the SVP initiative - disaster for counter-proposal. In: Tages-Anzeiger. November 28, 2010
    23. ↑ Results of the federal vote on November 28, 2010. ( Memento of April 3, 2013 in the Internet Archive ) In: Organization of the Swiss Abroad . December 6, 2010, accessed February 11, 2013
    24. ↑ Template No. 552, overview, details. In: website of the federal administration (the percentage of yes and no votes given here is based on the number of valid ballot papers; the valid percentage is the one given in the canton overview, which is based on the total of yes and no votes)
    25. ↑ Template No. 552, Results in the Cantons. In: Federal Chancellery website , accessed on November 29, 2010
    26. ↑ SVP deportation initiative is not applicable. In: Tages-Anzeiger. October 12, 2012, accessed December 14, 2012
    27. ↑ sda: Quarrel about the deportation initiative. Federal Council demands new proposal for implementation. In: Neue Zürcher Zeitung. April 25, 2012, Retrieved December 14, 2012
    28. ↑ Swiss Criminal Code and Military Criminal Law (implementation of Art. 121 Para. 3–6 BV on the deportation of criminal foreigners). In: Federal Administration website. March 20, 2015 (implementation template for the deportation initiative ; PDF; 161.5 kB)
    29. ↑ Andrea Geissbühler (National Councilor): Self-determination initiative as a lifeline for people's rights. In: SVP website. July 9, 2015
    30. ↑ Recommendations on Art. 66a to 66d StGB by the board of the Swiss Public Prosecutor's Conference. In: SSK website