Federal popular initiative "To enforce the deportation of criminal foreigners (enforcement initiative)"

The federal popular initiative "To enforce the deportation of criminal foreigners (enforcement initiative )" was a popular initiative of the Swiss People's Party (SVP) that was voted on on February 28, 2016.

The initiative intended to literally and literally implement the deportation initiative adopted in the referendum on November 28, 2010, and to expand the offenses that lead to deportation . In the opinion of the SVP, the implementation proposal passed by the Swiss Parliament does not meet the original requirements of the adopted initiative, in particular because the envisaged hardship clause allows a court to waive the deportation of a criminal foreigner in individual cases.

The Federal Council and Parliament recommended that the sovereign reject the initiative. In the vote on February 28, 2016, the people rejected the initiative with 58.9 percent no votes.

initiative

intention

According to the Swiss People's Party (SVP), the originator of the initiative, the parliamentary deliberations on the implementation of the deportation initiative as well as the early court practice showed that the deportation initiative of the SVP, which was adopted by referendum on November 28, 2010 , will not be implemented. In each case, reference was made to international law provisions which have priority and are more important. In the final vote of March 20, 2015, Parliament passed an implementation proposal based on a counter-draft rejected by Parliament in the same referendum on November 28, 2010 .

A parliamentary majority from the center-left had - against the will of the SVP - built the so-called hardship clause into the implementation legislation for the deportation initiative. According to this, the court can dispense with a “compulsory expulsion” - which includes a catalog of serious offenses and crimes - from an expulsion from the country if “this would cause severe personal hardship for the foreigner and the public interests in the expulsion from the country versus the private interests of the Foreigners who remain in Switzerland do not predominate; The special situation of foreigners who were born or raised in Switzerland must be taken into account. " In the case of offenses and crimes other than those mentioned in the catalog, the court should also be entitled to issue a ban on the country.

The illustration shows the calculation by the Federal Statistical Office (FSO). It highlights the differences in the hypothetical number of country references in 2014 for the implementation variant compared to the enforcement initiative. Only offenses are shown where the two variants differ.

For the SVP, the content of this implementation no longer has much to do with the idea of ​​the deportation initiative, since the court will always find a reason to refrain from expulsion from the country. That is why it took the enforcement initiative to force the literal and literal implementation of the deportation initiative.

Hardship clause in the Implementation Act

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. The legal provisions on the deportation initiative have been in force since October 1, 2016.

The hardship clause of the Implementation Act has the following wording:

The Federal Assembly of the Swiss Confederation, after reviewing the Federal Council Dispatch of June 26, 2013 ¹ , decides:

I The following decrees are amended as follows: 1. Criminal Code,

^{Art. 66a} Mandatory expulsion from the country

2. As an exception, the court may refrain from expulsion from the country if this would result in severe personal hardship for the foreigner and the public interests in the expulsion from the country do not outweigh the private interests of the foreigner in remaining in Switzerland. The special situation of foreigners born or raised in Switzerland must be taken into account.
3. Expulsion from the country can also be waived if the act was committed in excusable self-defense (Art. 16, Paragraph 1) or in an excusable state of emergency (Art. 18, Paragraph 1).

^{Art. 66d} Postponement of the mandatory ^expulsion from the country

1. The enforcement of the compulsory relocation under Article 66a can only be postponed if:
1. the person concerned is a refugee recognized by Switzerland and the expulsion from the country would endanger his life or his freedom because of his race, religion, nationality, membership of a certain social group or his political views; this does not apply to refugees who, in accordance with Article 5 paragraph 2 of the Asylum Act of June 26, 1998, cannot invoke the ban on deportation;
2. conflict with other mandatory provisions of international law.

Submission and formation

The initiative was submitted on December 28, 2012 with 155,788 valid votes.

Content and wording

The popular initiative has the following wording:

The transitional provisions of the Federal Constitution of the Swiss Confederation of April 18, 1991 are amended as follows:

Art. 197 no. 9 (new)

9. Directly applicable transitional provision to Art. 121 (Residence and settlement of foreigners)

¹ The following provisions apply to enforce the deportation of criminal foreign nationals:

1. Referral
   1. The court or the public prosecutor's office will expel foreign nationals who have been convicted of one of the following criminal acts, regardless of the amount of the sentence, from the territory of Switzerland:
      1. intentional homicide (Art. 111 of the Criminal Code, StGB), murder (Art. 112 StGB), manslaughter (Art. 113 StGB);
      2. serious bodily harm (Art. 122 StGB), endangerment of life (Art. 129 StGB);
      3. Burglary through the cumulative fulfillment of the offenses of theft (Art. 139 StGB), damage to property (Art. 144 StGB) and trespassing (Art. 186 StGB);
      4. Qualified theft (Art. 139 Numbers 2 and 3 StGB), robbery (Art. 140 StGB), commercial fraud (Art. 146 para. 2 StGB), qualified blackmail (Art. 156 Numbers 2, 3 and 4 StGB), commercial stolen goods (Art. 160 No. 2 StGB);
      5. Fraud (Art. 146 StGB) in the area of ​​social assistance and social insurance as well as social abuse (No. V.1);
      6. Human trafficking (Art. 182 StGB), qualified deprivation of liberty and kidnapping (Art. 184 StGB), hostage-taking (Art. 185 StGB);
      7. sexual coercion (Art. 189 StGB), rape (Art. 190 StGB), desecration (Art. 191 StGB), promotion of prostitution (Art. 195 StGB);
      8. Genocide (Art. 264 StGB), crimes against humanity (Art. 264a StGB), war crimes (Art. 264b-264j StGB);
      9. Violation of Article 19 paragraph 2 or 20 paragraph 2 of the Narcotics Act of October 3, 1951 (BetmG).
   2. The court or the public prosecutor's office will expel foreign nationals convicted of one of the following criminal acts from the territory of Switzerland if they have already been legally sentenced to imprisonment or a fine within the last ten years since the decision:
      1. simple bodily harm (Art. 123 StGB), suspension (Art. 127 StGB), brawling (Art. 133 StGB), attack (Art. 134 StGB);
      2. Trespassing (Art. 186 StGB) in connection with damage to property (Art. 144 StGB) or theft (Art. 139 No. 1 StGB);
      3. qualified embezzlement (Art. 138 para. 2 StGB), commercial fraudulent misuse of a data processing system (Art. 147 para. 2 StGB), commercial check and credit card abuse (Art. 148 para. 2 StGB), commercial usury (Art. 157 para. 2 StGB);
      4. Deprivation of liberty and kidnapping (Art. 183 StGB);
      5. Sexual acts with children (Art. 187 No. 1 StGB), sexual acts with addicts (Art. 188 No. 1 StGB), sexual acts with prison inmates, prisoners, accused (Art. 192 StGB), exploitation of the emergency (Art. 193 StGB), pornography (Art. 197 No. 3 StGB);
      6. Arson (Art. 221 Para. 1 and 2 StGB), intentional causing of an explosion (Art. 223 No. 1 StGB), exposure to explosives and poisonous gases with criminal intent (Art. 224 StGB), manufacture, concealment, transferring of explosives and poisonous gases (Art. 226 StGB);
      7. Counterfeiting of money (Art. 240 Paragraph 1 StGB), Counterfeiting of money (Art. 241 Paragraph 1 StGB);
      8. public incitement to crime or violence (Art. 259 StGB), participation in or support of a criminal organization (Art. 260ter StGB), endangering public security with weapons (Art. 260quater StGB), financing of terrorism (Art. 260quinquies StGB) ;
      9. Violence and threats against authorities and civil servants (Art. 285 StGB), breach of referral (Art. 291 StGB);
      10. false accusation (Art. 303 No. 1 StGB), qualified money laundering (Art. 305bis No. 2 StGB), false testimony, false expert opinion, wrong translation (Art. 307 Para. 1 and 2 StGB);
      11. willful violation of Article 115 paragraphs 1 and 2, 116 paragraph 3 or 118 paragraph 3 of the Aliens Act of 16 December 2005;
      12. Violation of Article 19 paragraph 1 or 20 paragraph 1 BetmG.
   3. If criminal proceedings have been opened within the last ten years that have not yet been concluded at the time of the decision in accordance with section 2, the expulsion from the country will be issued as soon as the person concerned has been legally sentenced to imprisonment or a fine.
   4. Expulsion from the country can be waived if the act is committed in excusable self-defense (Art. 16 StGB) or in an excusable state of emergency (Art. 18 StGB).
   5. The person against whom a final expulsion has been issued loses their right of residence and all legal rights to stay in Switzerland and re-entry into Switzerland, regardless of their legal status under aliens law.
2. Departure deadline and entry ban
   1. When a referral is issued, the court or the public prosecutor's office sets an exit deadline for the person concerned and simultaneously bans them from entering the country for a period of 5 to 15 years.
   2. In the event of a conviction according to Section I.1, the duration of the entry ban is to be set for at least 10 years.
   3. In the event of repetition, the entry ban will last 20 years.
3. Execution
   1. The expulsion from the country must be carried out immediately by the competent cantonal authority following the final conviction or after serving the sentence.
   2. The referral can only be temporarily postponed if there are compelling reasons in accordance with Article 25 paragraphs 2 and 3 of the Federal Constitution.
   3. When making its decision, the competent cantonal authority must assume that the expulsion to a state which the Federal Council has designated as safe in accordance with Article 6a paragraph 2 of the Asylum Act of June 26, 1998 does not violate Article 25 paragraphs 2 and 3 of the Federal Constitution .
   4. If reasons under Article 25 paragraphs 2 and 3 of the Federal Constitution are asserted, the competent cantonal authority will make a decision within 30 days. The decision can be referred to the competent cantonal court. This decides within 30 days after receipt of the appeal; the decision is final.
4. Relationship to international law

   The provisions on relocation and their implementation modalities take precedence over non-mandatory international law.

5. Social abuse
   1. Anyone who illegally obtains or attempts to obtain social assistance benefits or social insurance benefits for himself or for others through untrue or incomplete information, by concealing essential facts or in any other way, will be sentenced to imprisonment, unless the act is threatened with a higher penalty according to another provision punished for up to five years or a fine.
   2. In minor cases buses can be recognized.

² Paragraph 1 is directly applicable.

Deviations from the catalog of offenses of the Implementation Act

Around 40 offenses are listed identically in both offense catalogs. The enforcement initiative lists an additional 20 offenses, whereby with the exception of Art. 264, a legally binding conviction of imprisonment or a fine in the last ten years is a condition for deportation. The implementation law also lists 17 offenses. In the case of a further 17 offenses, according to the enforcement initiative, deportation takes place only after a previous conviction, and according to the Implementation Act even without it.

Only included in the enforcement initiative, but not in the implementation law

items	offense
Criminal Code (StGB) of December 21, 1937
Art. 123	simple assault
Art. 133	Brawling
Art. 186 i. V. m. Art. 144	Trespassing in connection with property damage
Art. 188 no. 1	sexual acts with addicts
Art. 192	sexual acts with institutional nurses
Art. 193	Taking advantage of the emergency
Art. 197 no. 3	Recruiting or inducing a minor to participate in a pornographic show
Art. 240 para. 1	Counterfeiting
Art. 241 para. 1	Counterfeiting of money
Art. 259	public incitement to crime or violence
Art. 264 b	Area of application Art. 264 d ‒264 j
Art. 264 i	Breach of a ceasefire or peace, offense against a parliamentarian, delayed repatriation of prisoners of war
Art. 264 j	other violations of international humanitarian law
Art. 285	Violence and threats against authorities and officials
Art. 291	Referral breach
Art. 303 no. 1	false accusation to the authority
Art. 305 to no. 2	qualified money laundering
Art. 307 paras. 1 and 2	wrong testimony, wrong opinion, wrong translation in judicial proceedings; when affirmed by oath or vow
Aliens Act (AuG) of December 16, 2005
Art. 115 paras. 1 and 2	illegal entry and residence after expiry of the residence permit
Narcotics Act (BetmG) of October 3, 1951
Art. 19 para. 1 or Art. 20 para. 1	Possession, manufacture, trade in narcotics; false information, medical staff

Only included in the implementation law, but not in the enforcement initiative

items	offense
Criminal Code (StGB) of December 21, 1937
Art. 115	Induction and aiding and abetting suicide
Art. 118 paras. 1 and 2	punishable termination of pregnancy
Art. 124 para. 1	Female genital mutilation
Art. 146 para. 1	Fraud, performance and tax fraud (Art. 14 Paragraph 1, 2 and 4 of the Federal Act of March 22, 1974 on Administrative Criminal Law) or tax fraud, misappropriation of withholding taxes or another criminal offense in the area of ​​public-law charges that result in a maximum penalty is threatened with imprisonment for one year or more
Art. 181 a	Forced marriage, forced registered partnership
Art. 197 para. 4 second sentence	Pornography, objects, or demonstrations depicting actual sexual activity with minors
Art. 225 para. 1	deliberate endangerment without criminal intent
Art. 226 bis	Hazards from nuclear energy, radioactivity and ionizing radiation
Art. 226 ter	criminal preparatory acts to cause a hazard through nuclear energy, radioactive substances or ionizing radiation
Art. 227 no. 1 paragraph 1	deliberately causing a flood or a collapse
Art. 228 no. 1 paragraph 1	deliberate damage to electrical systems, hydraulic structures and protective devices
Art. 230 to Paragraph 1	Intentional exposure to genetically modified or pathogenic organisms
Art. 231 no. 1	willful spread of human diseases
Art. 234 para. 1	deliberate pollution of drinking water
Art. 237 no. 1 paragraph 2	qualified disruption of public transport
Art. 238 para. 1	deliberate disruption of rail traffic
Art. 260 to para. 1 and 3	criminal preparatory acts for willful homicide, murder, grievous bodily harm, female genital mutilation, robbery, deprivation of liberty and kidnapping, hostage-taking, arson, genocide, crimes against humanity, war crimes

Offenses for which a previous conviction is a condition for expulsion in the enforcement initiative, not in the implementation law

items	offense
Criminal Code (StGB) of December 21, 1937
Art. 127	Exposure (exposing or leaving a helpless person in danger to life or health)
Art. 134	Involvement in an attack on people that results in the death or physical injury of an attacked person or a third party
Art. 138 no. 2	qualified embezzlement
Art. 147 para. 2	commercial fraudulent misuse of a data processing system
Art. 148 para. 2	Commercial check and credit card abuse
Art. 157 no. 2	commercial usury
Art. 183	Deprivation of liberty and kidnapping
Art. 186 i. V. m. Art. 139	Trespassing in connection with theft
Art. 187 no. 1	sexual acts with children
Art. 221 para. 1 and 2	Arson
Art. 223 no. 1 paragraph 2	deliberately causing an explosion
Art. 224 para. 1	Danger from explosives and toxic gases with criminal intent
Art. 226	Manufacture, concealment and conveyance of explosives and toxic gases
Art. 260 ter	Participation in or support of a criminal organization
Art. 260 quater	Public safety at risk with weapons
Art. 260 quinquies	Financing Terrorism
Aliens Act (AuG) of December 16, 2005
Art. 116 para. 3 or Art. 118 para. 3	Promotion of illegal entry and exit as well as illegal residence and deception of the authorities with the intention of unlawful enrichment or for a group with this intention

Partially invalid declaration by the Federal Assembly

The wording of the voting text differs from the initiative text in one sentence. This sentence finally defined what is to be regarded as mandatory international law. The deleted sentence (originally the second sentence of Art. 197 Number 9 Paragraph 1 Number IV) read as follows:

"The only mandatory international law is the prohibition of torture, genocide, war of aggression, slavery and the prohibition of deportation to a country in which death or torture threatens."

According to the initiative committee, the sentence should separate non-mandatory international law from mandatory international law, for which there is no universally accepted formal definition. However, the Federal Assembly declared this sentence to be invalid in its deliberations on the initiative in March 2015, and it will therefore not be put to the vote.

The Federal Council and the majority of the National Council's commissions had applied for the sentence to be declared invalid “in application of the principle of proportionality” because they saw this “definition of mandatory international law” as a violation of Article 139 paragraph 3 of the Federal Constitution. (This article requires that the Federal Assembly must declare a popular initiative invalid if the unity of form, the unity of matter or mandatory provisions of international law are violated.) The definition of mandatory international law of the initiative is narrower than the international law definition of the international community and the corresponding practice of the Swiss authorities. The guarantees of the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (UN Pact II) and the Geneva Conventions (humanitarian international law) were missing . In addition, the definition of the non-refoulement requirement , which is contained in Article 25 of the Federal Constitution, is interpreted more narrowly in the initiative. The initiative uses the phrase "the prohibition of deportation to a country in which death or torture threatens". The definition of mandatory international law under international law defines the non-refoulement principle in such a way that a deportation is not possible even if there is a threat of "another type of cruel and inhuman treatment or punishment".

Arguments

Per

The initiators argue primarily that the people's will, expressed in the 2010 vote on the deportation initiative, to introduce an automatic expulsion of criminal foreigners, must be enforced, which the implementation law drafted by parliament does not respect by introducing a hardship clause. In addition, the more consistent expulsion of criminal foreigners will increase the security of the population. The initiators reject the allegations that if the initiative were accepted, the separation of powers, international law and human rights would be violated, the principle of proportionality would not be observed and legal uncertainty would be detrimental to the economy. the opposite is the case.

"The people don't want a hardship clause"

The initiators interpret the outcome of the referendum on the deportation initiative of 2010 in such a way that the people and the cantons do not want a hardship clause (called the " perpetrator protection clause " by the initiators ), but an automatic expulsion for certain offenses without individual examination. The counterproposal also contained an actual hardship clause, which, however, was rejected by the people with 54.21% and by all classes. With the hardship clause inserted into the implementation act against the will of the SVP, Parliament disregards the clearly expressed will of the people.

The initiators see the reasons for this will of a majority of the people in the “far too slack and arbitrary practice” of the Swiss courts. This practice would quickly make the hardship clause the rule.

In order to help the popular will to achieve a breakthrough, the initiators were forced to take the initiative. Taking the referendum against the implementation law was not in the interests of the initiators, as they agreed with the law, with the exception of the hardship clause. A referendum would also have delayed the targeted expulsion of criminal foreigners for years.

The rules for the expulsion of criminal aliens contained in the enforcement initiative also apply in many other constitutional states, in some cases, namely the USA, in an even stricter form.

"Increase the security of the population in Switzerland"

In the opinion of the initiators, acceptance of the enforcement initiative would increase the security of the population in Switzerland, including foreigners, by consistently expelling foreign criminals residing in Switzerland for serious crimes and banning "criminal tourists" from entering the country. 57,000 of a total of 113,000 criminal offenses (according to the Criminal Code and Narcotics Act) would be committed annually (as of 2014) by criminal foreigners (31,000 by foreigners with permanent residence in Switzerland, i.e. 35.6% of the 87,000 by perpetrators with Swiss domicile committed crimes with a population share of 24.25%). If the enforcement initiative were accepted, this would lead to around 10,000 expulsions, whereas today only around 500 have taken place.

Particularly upsetting is that 61.3% of the rapes were committed by criminal foreigners (42.6% by foreigners with permanent residence in Switzerland).

Criminal foreigners who cannot be expelled for the time being due to the non-refoulement principle (also accepted by the initiative) would have to leave the country after the reasons for the temporary waiver of deportation no longer exist. Appropriate readmission agreements are to be concluded with the few states that do not take back their criminal compatriots.

In the opinion of the initiators, the more consistent expulsion of criminal foreigners would also have a deterrent effect, in particular through the two-stage catalog of offenses, which prevent previously convicted persons from committing another crime. This will further reduce the crime rate. Today over 70% of inmates in Swiss prisons are foreigners (19% with Swiss residence). If the number of foreign crimes falls, this number and the associated costs could be reduced.

It is not about trivial cases

The initiators describe the examples of theft of an apple, chewing gum or a rose in connection with trespassing and damage to property, repeatedly put forward by the opponents of the initiative, as absurd. Not only is the offense of trespassing in connection with theft also included in the catalog of the implementation law and thus - in contrast to the initiative even without a criminal record - even if the initiative is rejected, thefts of such low values ​​would never result in a judicial conviction in Switzerland to lead. In the worst case, theft in connection with Art. 172 ^ter StGB (minor property offenses) and a fine would be recognized, which means that the prerequisite for deportation is missing. In such cases, according to Art. 52 StGB (lack of need for punishment), punishment is waived at all because the guilt and the consequences of the offense are insignificant.

The assertion that “minor social abuse”, for example by not specifying “small amounts from additional income”, would necessarily lead to expulsion if the initiative was accepted. The initiative expressly states that "in minor cases" a fine can be recognized, which means that the condition for expulsion is not given. Incidentally, like trespassing / theft, social abuse is also included in the catalog of offenses of the implementation law and thus comes into force even if the initiative is rejected, also with the possibility of recognizing a fine in minor cases. In any case, the person concerned is usually asked to repay the illegally withdrawn funds, and the case is settled with the repayment.

The two-stage catalog of offenses contains “no petty offenses”, but rather serious crimes in the first part and less serious crimes in the second, in which a legally binding sentence to imprisonment or a fine within the last ten years is a prerequisite for expulsion.

"The principle of proportionality is respected"

The initiators reject the accusation that the enforcement initiative violates the principle of proportionality as false. The initiative differentiates by automatic expulsion for serious crimes, but only if a criminal record is present for less serious crimes. They also differentiate between the duration of the expulsion from the country. It is normal for the legislature to introduce its view of proportionality into the law. In the case of a constitutional initiative, it is the electorate that determines what is proportionate. For example, the courts would have to impose a sentence of at least ten years for murder because the legislature wanted it that way. Anyone who drives at 140 km / h on the autobahn and receives a bus cannot object that the buses are disproportionate because no one else has been on the autobahn far and wide. The legal system works with such automatisms that protect citizens from arbitrary judges and ensure that the same cases are treated equally.

The judge must and will observe the principle of proportionality when assessing the offense and when determining the sentence. Motives, personal circumstances and other factors would play a role in this. Only when the judge has found someone guilty does the initiative provide for expulsion as a mandatory consequence in certain cases.

"The separation of powers is not violated"

The initiators reject the accusation that the initiative violates the separation of powers and invalidates the rule of law as unfounded. The separation of powers also includes the mutual control of state powers. The popular initiative is a tried and tested corrective in Swiss constitutional mechanics: if a group of voters disagrees with decisions made by the authorities or wants to bring their own ideas into politics, appropriate popular rights would be available through a referendum and initiative. To think that the people should not interfere in legislative issues is wrong and in no way corresponds to the principles of the Swiss Federal Constitution.

Rather, the separation of powers is violated by the Federal Supreme Court, which follows the practice of the European Court of Justice in its judgments, even where this contradicts Swiss laws or the Swiss constitution. The judiciary thus assumes the powers of the legislature. The initiators also see the separation of powers violated by the frequent international treaties that oblige Switzerland to enact laws, the content of which is already defined in the international treaty. The executive takes on a legislative role.

The rule of law is by no means undermined by the initiative, on the contrary, it is strengthened. The judges would not be disempowered either; as before, they would pronounce the punishment based on the judgment of the perpetrator and the offense. Only in the case of foreigners' legal measure of expulsion from the country is their discretion limited, but not abolished.

"Security increases the quality of Switzerland as a location"

According to the initiators, the quality of the location in Switzerland will be strengthened by the enforcement initiative and not endangered, as the opponents would have us believe. Switzerland is still known worldwide as a haven of security and order. For international companies, the security aspect is one of the most important criteria when choosing their company headquarters. Good and highly qualified employees can only be won over to a country that offers its citizens the highest level of security. The enforcement initiative, the main goal of which is to increase security for the population in Switzerland, is therefore good for the economy.

The initiative does not contradict the Agreement on the Free Movement of Persons, as is often claimed. The contract on the free movement of persons contains a clause according to which an expulsion is possible if the person concerned endangers public security and order. The question is how this clause will be interpreted. The initiators wanted it to be interpreted more strictly. Many other countries would see it that way and would go along with it if Switzerland implemented the enforcement initiative. Although it is possible that there will be conflicts, this has to be accepted so that the undesirable developments in the case law can finally be addressed.

Cons

The enforcement initiative is criticized by a large number of parties and people for its content and its intended mode of operation. It is often criticized that the new constitutional text undermines the separation of powers, violates the European Convention on Human Rights and provokes new conflicts with the EU in the area of ​​the free movement of persons.

Rule of Law Concerns

The Neue Zürcher Zeitung describes the enforcement initiative as "deeply unswiss", as it is writing a legal text in the constitution about which parliament has nothing more to say and which the judges would have to apply automatically; In the words of SP Councilor Daniel Jositsch, they create a “criminal self-shot system”. If the initiative is accepted, there is no case-by-case examination and no discretion for the courts. A murderer is treated the same as a casual thief and a secondo born here is treated the same as a tourist tourist. By writing an article of the law directly into the constitution and depriving the courts of discretion, the people rise “to be legislators, judges and executors at the same time”. Various sources voiced concerns about the rule of law and warned that the separation of powers would be circumvented in this way.

Another point of criticism highlighted was that if the initiative were accepted, a quarter of the Swiss resident population would be “exposed to specific lawlessness”, as Swiss and foreigners would in fact have different rights. Justice Minister Simonetta Sommaruga stated in this connection, speaking on behalf of the entire Federal Council: "This initiative is inhuman, it treats foreigners as second-class people"; According to Daniel Binswanger, this would “impose a legal apartheid regime on the foreign resident population in Switzerland”.

Break with international law

By wanting to value provisions of state law higher than those of international law, the initiative ignores the case law of the Federal Supreme Court. She only wants to allow exceptions to this if the specific case involves mandatory international law. However, the Federal Supreme Court clearly stated that international treaties, which Switzerland has committed to complying with upon ratification, such as the European Convention on Human Rights (ECHR) or the free movement of persons agreement with the EU, must be respected. However, the enforcement initiative puts itself above the ECHR or the children's rights convention. It would have a similar effect as the initiative on "foreign judges", the goals of which it anticipates in this sense.

If Switzerland no longer implements the decisions of the European Court of Human Rights because the Federal Constitution explicitly forbids it, conflicts with the Council of Europe are inevitable. This in turn, it is feared, is likely to "damage both the reputation and credibility of Switzerland and the protective effect of the system for protecting human rights of the Council of Europe".

"Threat to the economy from legal uncertainty"

Justice Minister Simonetta Sommaruga emphasized at a media conference on December 22, 2015 that the enforcement initiative violated the free movement of persons agreement with the EU. According to Sommaruga, acceptance of the initiative would lead to additional uncertainties in bilateral relations between Switzerland and the EU and put a strain on the ongoing talks on the implementation of the immigration article (Art. 121a BV) adopted by the people and the cantons on February 9, 2014. Such legal uncertainties, which could call the bilateral path into question, would be detrimental to the economy and to Switzerland's interests.

Another point raised by FDP Council of States Andrea Caroni criticized that local employers would have to fear at any time that an employee could be deported for a minor offense.

Well-known business representatives such as Economiesuisse reject the initiative; the machine industry association Swissmem as well as the pharmaceutical association Interpharma and the organization SuccèSuisse support the opponent campaign financially.

Criticism of the procedure

In her media conference, Justice Minister Sommaruga criticized the SVP for disregarding the tried and tested processes of Swiss democracy with the enforcement initiative. According to the federal constitution, it is the task of parliament to implement a popular initiative adopted by the people and the cantons by means of legislative amendments (Art. 163 ff. BV). After the deportation initiative was adopted at the end of 2010, Parliament has in the meantime fulfilled this mandate and tightened the laws. Without waiting for these laws and without taking the referendum later, however, the initiators would have chosen the route via a new popular initiative before parliament could even begin legislative work.

Accusation of "fraudulent labeling"

Compared to the enforcement initiative, the accusation was made that it was being used as a fraudulent label. Contrary to what the name of the initiative suggests, the enforcement initiative is not just about a second vote on the deportation initiative adopted in 2010; the enforcement initiative goes far beyond that. It contained "a far more extensive catalog of criminal offenses that would lead to automatic eviction". She also added minor offenses to the list, such as illegal entry or banal violations of the Narcotics Act, which would make deportation as part of the sentence even more disproportionate. The initiators of the deportation initiative wrote in 2010 that “around 1500 deportations per year can be expected”; According to an extrapolation by the Federal Statistical Office (BfS), however, if the initiative is accepted, 10,210 expulsions can be expected. The enforcement initiative is therefore "a radical tightening" compared to the deportation initiative; the Tages-Anzeiger therefore spoke of a “tightening initiative”.

Criticism of the concept of sovereignty

In the run-up to the vote, different sides raised the question of how far popular initiatives can go or, in other words, whether the people are always right.

The Basel constitutional law professor Markus Schefer has expressed the general criticism that popular initiatives are increasingly being used by parties to sharpen their political profile. According to him, the constitution is "abused for party symbolism". A study by the political scientist Lucas Leemann comes to the same conclusion. Schefer, a professor of constitutional law, therefore demands that the political process “should increasingly focus on the whole”.

With regard to the concept of sovereignty, the Neue Zürcher Zeitung (NZZ) wrote that in direct democracy the people rule as sovereign, but sovereignty does not mean omnipotence. The people's rights are also "embedded in a political system that is consciously designed for balance and consensus"; the enforcement initiative breaks with this tradition.

Referendum

Majorities according to cantons

The Swiss voters voted on the initiative on February 28, 2016. The initiative was rejected by a majority of 58.9% of those who voted. The majority of the cantons also voted against it. There was only a majority in favor of the initiative in the cantons of Ticino, Appenzell Innerrhoden, Schwyz, Obwalden, Nidwalden and Uri.

Yes (3 3/2 booths)

No (17 3/2 stands)

Canton	Yes (%)	No (%)	Participation (%)
Aargau	44.3	55.7	64.3
Appenzell Ausserrhoden	44.7	55.3	66.6
Appenzell Innerrhoden	54.3	45.7	59.6
Basel-Country	40.2	59.8	63.4
Basel city	29.8	70.2	66.6
Bern	40.1	59.9	61.0
Freiburg	40.9	59.1	63.6
Geneva	35.5	64.5	55.4
Glarus	48.7	51.3	57.9
Grisons	41.8	58.2	61.0
law	39.7	60.3	55.3
Lucerne	43.7	56.3	68.0
Neuchâtel	34.7	65.3	57.6
Nidwalden	50.6	49.4	73.6
Obwalden	52.5	47.5	72.5
Schaffhausen	45.1	54.9	75.8
Schwyz	53.9	46.1	68.9
Solothurn	43.0	57.0	64.1
St. Gallen	45.9	54.1	62.5
Ticino	59.4	40.6	68.0
Thurgau	47.2	52.8	59.7
Uri	51.6	48.4	73.3
Vaud	33.4	66.6	58.5
Valais	45.0	55.0	63.3
train	42.6	57.4	69.9
Zurich	35.0	65.0	66.4
Swiss Confederation	41.1	58.9	63.1

Web links

• Initiative Committee website
• Website of the Committee against the Enforcement Initiative
• Chronology of the initiative , website of the Swiss Federal Chancellery

Individual evidence

1. ↑ StGB and MStG. Deportation of criminal foreigners. In: Official Bulletin - The minutes of the National Council and the Council of States.
2. ↑ ^{a b c} Implementation of Art. 121 Para. 3–6 BV on the deportation of criminal foreign nationals. In: Federal Administration website (PDF; 162 kB).
3. ↑ ^{a b} Foreigners and Criminal Law. Implementation of the deportation initiative. (No longer available online.) In: Website of the Federal Statistical Office. Archived from the original on January 17, 2016 ; accessed on December 28, 2015 (XLS; 59 kB). 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.  
4. ↑ Andrea Geissbühler (National Councilor): Self-determination initiative as a lifeline for people's rights. In: SVP website. July 9, 2015.
5. ↑ sda: Quarrel about the deportation initiative. In: Neue Zürcher Zeitung . April 25, 2012, Retrieved December 14, 2012.
6. ↑ ^{a b} To enforce the deportation of criminal foreigners (enforcement initiative). Popular initiative. In: Official bulletin of the minutes of the National Council and Council of States (eleventh meeting of the Council of States of the 2014 winter session on December 10, 2014).
7. ^ Federal popular initiative “To enforce the deportation of criminal foreigners (enforcement initiative)”. In: Website of the Federal Chancellery .
8. ^ Statement by SVP National Councilor Gregor Rutz in: J. Büchi: "We did not want to redefine international law". In: 20 minutes . 20th November 2013.
9. ^ Statement by international law professor Sebastian Heselhaus from the University of Lucerne in: J. Büchi: "We did not want to redefine international law". In: 20 minutes . 20th November 2013.
10. ↑ Urs Paul Engeler: A famous farce. In: Die Weltwoche . 48/2013.
11. ^ Message on the popular initiative "To enforce the deportation of criminal foreigners (enforcement initiative)". P. 10 (9468): "An authoritative list of mandatory international law [...] does not exist [...]" (PDF; 312 kB).
12. ↑ Federal resolution on the popular initiative “To enforce the deportation of criminal foreigners (enforcement initiative)” of March 20, 2015. In: Website of the Federal Administration (PDF; 114 kB).
13. ↑ ^{a b} To enforce the deportation of criminal foreigners (enforcement initiative). Popular initiative. In: Official bulletin of the minutes of the National Council and Council of States (sixteenth session of the Council of States of the 2014 winter session on March 20, 2014).
14. ↑ Swiss Federal Constitution : Art. 139 popular initiative for a partial revision of the Federal Constitution. In: Website of the Federal Administration (systematic compilation of federal law, see Paragraph 3).
15. ↑ ^{a b} Finally create security! In: SVP website.
16. ↑ "The popular initiative wants to automatically withdraw the right of residence to foreigners if they have committed certain crimes or have abusively received social benefits." In: Referendum of November 28, 2010. Explanations of the Federal Council. «Deportation initiative» and counter-draft of the Federal Assembly. ( Memento of the original from March 3, 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. P. 3 and 6 (PDF; 1.26 MB). 
17. ↑ Art. 121 b para. 3 of the counter-proposal: "When deciding on eviction and removal as well as the withdrawal of the right of residence, basic rights and the basic principles of the Federal Constitution and international law, in particular the principle of proportionality, must be observed." In: Referendum of November 28, 2010. Explanations of the Federal Council. «Deportation initiative» and counter-draft of the Federal Assembly. ( Memento of the original from March 3, 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. P. 19 (PDF; 1.26 MB). 
18. ^ Albert Rösti : Contradicting opponents of the enforcement initiative. In: SVP website. 4th February 2016.
19. ^ Claudia Steinmann: Concrete. In: Tele Z broadcast (with Christoph Blocher and Kurt Fluri ).
20. ↑ Urs Moser: Enforcement initiative: Martin Killias settles accounts with the comrades. In: Aargauer Zeitung . 4th February 2016.
21. ↑ Andreas Kunz: Switzerland in the clutches of Nazis, Orcs and Mordor. In: Sunday newspaper . February 14, 2016.
22. ↑ Police crime statistics (PKS). Annual report 2014 ( Memento of the original from November 16, 2015 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. (PDF; 2.93 MB).  
23. ↑ ^{a b c} Popular initiative to enforce the deportation of criminal foreigners (enforcement initiative). Arguments for the referendum of February 28, 2016. ( Memento of the original of February 17, 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: SVP website (PDF; 498 kB).  
24. ^ ^{A b} Natalie Rickli : Security - an important location factor for Switzerland. ( Memento of the original from February 17, 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: SVP website. 
25. ↑ Adrian Amstutz : It's about criminal foreigners - not about poor unsuspecting people. In: SVP website. January 29, 2016.
26. ↑ Art. 172 ^{ter of} the Criminal Code.
27. ↑ Art. 52 of the Criminal Code.
28. ↑ Lukas Reimann : lies and deceit. In: SVP website. 19th January 2016.
29. ↑ ^{a b c} Gregor Rutz : The right answer at the right time. In: SVP website. January 29, 2016.
30. ↑ Heinz Brand : Internal security is being strengthened. In: Neue Zürcher Zeitung. January 13, 2016.
31. ↑ Hans-Ueli Vogt : Proportionality is preserved. ( Memento of the original from February 19, 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: SVP website. January 14, 2016. 
32. ↑ Hans-Ueli Vogt: SVP lawyer relativizes enforcement initiative. In: Switzerland on Sunday . 2nd January 2016.
33. ↑ ^{a b} Simon Gemperli: Is the enforcement initiative proportionate? Dispute between Kurt Fluri and Gregor Rutz. In: Neue Zürcher Zeitung. December 28, 2015.
34. ^ Incapacitation of the Swiss administration of justice. In: SVP website. 19th March 2015.
35. ↑ Yves Nidegger : Against the creeping erosion of our democratic rights! In: SVP website. February 10, 2009.
36. ↑ Sarah Jäggi, Aline Wanner: Federal Council elections: The test. In: Zeit Online . October 26, 2015, accessed December 28, 2015 . 
37. ^ ^{A b} Daniel Friedli: The enforcement initiative is not Swiss. In: Neue Zürcher Zeitung . December 27, 2015, accessed December 28, 2015 . 
38. ^ Arguments against the enforcement initiative. (No longer available online.) In: www.durchsetztinitiative-nein.ch. Archived from the original on December 29, 2015 ; accessed on December 28, 2015 . 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.  
39. ^ ^{A b} Matthias Bertschinger: Attack on bilaterals, ECHR and on our constitution - appeal to all social actors. In: matthiasbertschinger.ch. Retrieved December 28, 2015 . 
40. ↑ Kaspar Surber: The attack on the youth. In: WOZ The weekly newspaper . December 17, 2015, accessed December 28, 2015 . 
41. ↑ "The initiative treats foreigners as second-class people". In: Tages-Anzeiger Online . Retrieved December 28, 2015 . 
42. ^ ^{A b c} Daniel Binswanger : Legal apartheid. In: The magazine . December 4, 2015, accessed December 28, 2015 . 
43. ^ Relationship between international law and state law. In: www.eda.admin.ch. Retrieved December 28, 2015 . 
44. ↑ ^{a b c} No to the «enforcement initiative». In: Amnesty International Switzerland. December 16, 2015, accessed December 28, 2015 . 
45. ↑ Walter Kälin, Stefan Schlegel: Swiss law breaks international law? Scenarios of a conflict with the Council of Europe in the event that national law is claimed to have priority over the ECHR. (PDF) In: Swiss Competence Center for Human Rights (SKMR). April 2014, accessed on December 28, 2015 (PDF; 344.12 kB). 
46. ↑ ^{a b} Enforcement initiative breaks with basic rules of democracy. In: website of the FDJP. Retrieved December 28, 2015 (press release). 
47. ↑ Denis von Burg, Reza Rafi: 55 percent say yes to the SVP initiative. In: Sunday newspaper . Retrieved December 28, 2015 . 
48. ↑ Anja Burri: Now the opponents of the SVP initiative are waking up. In: Tages-Anzeiger Online . Retrieved December 28, 2015 . 
49. ↑ Swiss Confederation: referendum of November 28, 2010. Explanations by the Federal Council. (PDF) In: EVS website. November 2010, p. 12 , accessed on December 28, 2015 (PDF; 1.26 MB). 
50. ^ Felix Schindler: The tightening initiative. In: Tages-Anzeiger Online . December 28, 2015, accessed December 28, 2015 . 
51. ↑ ^{a b} Philipp Loser: Is the people allowed to do anything? In: TagesWoche . Retrieved on December 28, 2015 (interview with Markus Schefer ). 
52. ↑ Lucas Leemann: Political Conflict and Direct Democracy - Explaining Initiative Use 1920–2012 . In: Swiss Political Science Review . tape 21 , no. 4 , December 2015, p. 596-616 , doi : 10.1111 / spsr.12190 .
53. ^ Voting documents for February 28, 2016. In: Website of the Federal Chancellery . October 7, 2015 (press release).
54. ↑ Preliminary official final results In: Website of the Federal Chancellery . Retrieved February 28, 2016.