Is there a need for this anti-terror law?

by Dr iur. Marianne Wüthrich

On 25 September 2020, Parliament approved the Council of Europe Convention on the Prevention of Terrorism and its Additional Protocol. In order to fulfil Switzerland’s obligations under this Convention, Parliament simultaneously amended the Criminal Code to include new penal provisions for participation in criminal and terrorist organisations and in terrorist offences.1
    Based on terrorist attacks abroad and the fact that youths and young adults living in Switzerland had travelled to the Middle East to join armed terrorist groups, the National Council and the Council of States approved the “Federal Act on Police Measures to Combat Terrorism (PMCT)” on the same day. Various committees filed a referendum against this on constitutional grounds (Voting Booklet2, p. 105). 
    
This voting proposal will be examined here.

The most important 
contents of the law

The text of the draft law can be found in the voting booklet (p. 114ff.) (in German, French or Italian). 

Principle: The police should already be able to intervene preventively if it can be assumed that a person poses a terrorist threat (Voting Booklet, p. 105).

  • Measures can be taken against “terrorist threateners” “if it must be assumed on the basis of concrete and current indications that he or she will carry out a terrorist activity”. (Art. 23e para. 1)
  • “Terrorist activity” (Art. 23e para. 2): “Efforts to influence or change the order of the state, to be realised or facilitated by the commission or threat of serious criminal offences or by the propagation of fear and terror”.
  • The Fedpol(Federal Office of Police) is responsible for ordering the measures (Art. 23f para. 1), at the request of the commune, the canton or the FIS (Federal Intelligence Service) (Art. 23i).
  • Enforcement and control of the measures are the responsibility of the cantons (Art. 23r).
  • Measures may only be taken if they are “proportionate” [this applies to any state measure in a state under the rule of law] and if previously attempted measures in the cantons or communes are not sufficient (Art. 23f para. 1 b) (Voting Booklet, p. 108).
  • Possible measures (Art. 23k-q): obligation to participate in talks, ban on contact, ban on leaving the country, obligation to register, inclusion and exclusion (ban on going to or leaving certain places), house arrest, detention pending deportation (for foreigners; no detention/arrest is provided for Swiss citizens), electronic surveillance (Voting Booklet, p. 107).

Common provisions:

  • Age limit: 12 years (Art. 24f)
  • Maximum duration of a measure: six months (one-time extension by a maximum of six months possible) (Art. 23g para. 1)
  • Legal protection: “Appeals against Fedpolrulings [...] may be lodged with the Federal Administrative Court.” (Art. 24g para. 1) “Appeals have no suspensive effect.” However, the instruction judge [investigating judge] may grant suspensive effect to an appeal “if the purpose of the measure is not thereby jeopardised” (Art. 24g para. 3).
  • Penal provisions: “A custodial sentence not exceeding three years or a monetary penalty shall be imposed on anyone who contravenes measures under Articles 23l–23q.” (Art. 29a)

Serious legal objections

The two referendum committees are offended by the vague definitions of “dangerous persons” and “terrorist activity”, which open the door to arbitrariness. Federal Councillor Karin Keller-Sutter, head of the Federal Department of Justice and Police, asserts that “terrorist threateners” do not mean demonstrators, “not even those who break windows” – but vague is still vague. Moreover, the planned measures could be imposed on suspicion alone and without proof against blameless citizens and against children over the age of 12 (a violation of the European Convention on Human Rights and the UN Convention on the Rights of the Child). The separation of powers would also be disregarded: The measures would be both ordered and carried out by police authorities (executive), but in a state under the rule of law they would have to be ordered by a court. “This law is an attack on the rule of law without bringing more security.” (Voting booklet, p. 110f.)
    In addition to the people who took the referendum, numerous Swiss lawyers also raise serious legal concerns against the anti-terrorism law, such as UN Special Rapporteur Nils Melzer, whom we got to know as an intrepid fighter for the release of whistle-blower Julian Assange. Together with four other UN Special Rapporteurs, he called on parliament to reject the bill: “The police should be given far-reaching powers in the fight against terror – too far-reaching, says Swiss lawyer and UN Special Rapporteur Nils Melzer.”3 
    As early as September 2020, more than fifty Swiss criminal law experts wrote an open letter to parliament calling on it to reject the bill because “the present measures permit far-reaching restrictions on fundamental and human rights, the protection of which is guaranteed by the Federal Constitution and international agreements (ECHR, UN Covenants I and II, etc.)”.4 The legal experts criticised, among other things, the “extremely imprecise concept of a ‘terrorist threatener’” and in particular the insufficient judicial control: “A presumption of dangerousness is established, which must be refuted before the judicial authority. This is alien to our legal system and the values on which it is based. The lack of a suspensive effect of appeal and of prior judicial review means that the person affected by police measures has to endure the professional, social and psychological consequences even if the measures prove to be unfounded.” 
    In their open letter, the criminal lawyers conclude: “While it is clear that terrorism requires a strong response from our institutions, state action must be taken within the framework of the rule of law. It is a strong rule of law that Switzerland needs in order to counter the terrorist threat. The bill submitted to the Federal Assembly, however, is highly problematic with regard to the Federal Constitution and international human rights agreements. Its adoption would undermine our rule of law.”

Unacceptable encroachment by the federal government 
into cantonal police sovereignty

Completely alien to the Swiss understanding of the state is the position of power that the draft law confers to the Federal Office of Police (Fedpol). Fedpol is to have the sole power to decide on the disposition of measures against a “terrorist threatener” (Art. 23f and j), while the competent cantonal and communal authorities are to be downgraded to mere applicants (Art. 23i) and enforcement assistants (Art. 23r para. 1). Indeed, according to paragraph 2, the Federal Office is even to "assist" the competent canton: “Fedpolprovides official and enforcement assistance.” This is an absolutely unacceptable interference with the police sovereignty that has always been in the hands of the cantons.

Let us speak Fedpol for itself. Under the title “Police Structure – Federalist Structure”, you can read on their homepage: “In Switzerland, the 26 cantons basically have police sovereignty. This is an original competence of the cantons, i.e., a competence that already existed when the Swiss Federal Constitution (FC) did not yet exist. The Federal Constitution has not changed this and thus recognises this competence. The cantons are thus responsible for ensuring public safety and order on their territory.”5 Perhaps before drafting a law, the officials of the FDJP6 should first take a look at the information provided by their own federal offices.

The thick end: 
The anti-terror law is superfluous

Today, the police has “only limited possibilities to take preventive action against terrorist threats. With the present federal law, the Federal Council and parliament want to close this gap” (voting booklet, p. 105).
    However, the Federal Council conceals the fact that the gap is not that big. For on the same day that parliament passed the anti-terror law, it also criminalised a number of preparatory acts to criminal or terrorist crimes (see lead). Unlike the measures of the anti-terror law, they will be included in the Criminal Code and thus be subject to all procedural rules and fundamental rights guaranteed by the rule of law.
    According to Art. 260ter SCC, anyone is punishable who 

a. participates in an organisation the purpose of which is to 

  1. to commit violent crimes [...], or 
  2. to commit violent crimes intended to intimidate the population or to coerce a state or an international organisation to do an action or to refrain from an action;

or 

b.assisting such an organisation in its activities. [...] 

According to Art. 260sexies, it now is also a punishable offence for anyone who 

  1. recruits someone to commit or participate in the commission of such an offence; 
  2. is instructed to manufacture or use weapons, explosives, radioactive materials, poisonous gases or other devices or dangerous substances, or instructs someone to do so, for the purpose of committing or participating in such an offence; or 
  3. undertakes a cross-border journey with the intention of committing, participating in or being trained to commit such an offence."

Since 2003, it has also been a punishable offence to “collect or make available assets for terrorist purposes” (Art. 250quinquies), and since 1995, to “terrify the population by threatening or simulating danger to life, limb or property” (Art. 258).
    In other words, anyone who rumbles around with dangerous material or is on the move in criminal company, who sends around threatening mails and tweets, who travels abroad to join terrorist groups there, or who collects money for such groups, is already punishable through these preparatory acts. He does not have to undergo questionable measures by Fedpol, but is charged and brought before a court, with all the guarantees of fundamental rights (right to be heard, right to a lawyer, right to take legal action, etc.). So, what is the point of a legally dubious anti-terror law that massively restricts these fundamental rights?

Finally, an urgent question: 
What do we do with young people who are prepared to use violence?

Federal Councillor Keller-Sutter promotes the anti-terror law with the example of a 17-year-old who announces in social media “that he will ‘kill all these Muslims’”. The 17-year-old uploads clips from the video of the Australian neo-Nazi who murdered 51 Muslims in two mosques in Christchurch, New Zealand, in March 2019. He writes: “Someday I’d like to do the same in Switzerland.” In the chat, he also gives the hint “that there is a mosque very close to him”.7
    How do we adults tackle such serious problems? Do we parents and teachers know what kind of horrific violent videos and bullying text messages are circulating among our children? Can we assess whether the individual is a potential offender or whether he might come to his senses if seriously addressed? These are challenging questions that our society must face. We are responsible for our young people, for trying to find solutions with those who are prepared to use violence and for protecting others. The measures ordered by Fedpolwill not straighten it.

1Bundesbeschluss über die Genehmigung und die Umsetzung des Übereinkommens des Europarats zur Verhütung des Terrorismus mit dem dazugehörigen Zusatzprotokoll sowie über die Verstärkung des strafrechtlichen Instrumentariums gegen Terrorismus und organisierte Kriminalität (Federal Decree on the Approval and Implementation of the Council of Europe Convention on the Prevention of Terrorism and its Additional Protocol, and on the Strengthening of Criminal Law Instruments against Terrorism and Organised Crime) of 25 September 2020
2Explanations of the Federal Council on the referendum of 13 June 2021
3Poletti, Gregor. “Experts warn against anti-terror law. Even blameless citizens could be classified as terrorist threats.", in: Tages-Anzeiger of 27 April 2021
4https://unser-recht.ch/2020/09/24/51-universitaere-rechtsexpertinnen-und-experten-rufen-zur-ablehnung-des-antiterrorgesetzes-auf/
5https://www.fedpol.admin.ch/fedpol/de/home/polizei-zusammenarbeit/national.html
6Federal Department of Justice and Police
7Pelda, Kurt. “Justice lets suspected terrorist escape.”, in: Tages-Anzeiger of 19 April 2021

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