Durchsetzungsinitiative (Enforcement Initiative) – This is about the enforcement of direct democracy

Federal popular initiative from 28 February 2016

by Dr iur. Marianne Wüthrich

On 28 February the Swiss people will vote on the federal popular initiative “on the enforcement of the expulsion of foreign criminals” (the enforcement initiative). Goal of the initiative is the enforcement of the “Expulsion Initiative”, which was adopted on 28 November 2010 by people and cantons. More precisely, target is the enforcement of Article 121 par. 3–6 of the Federal Constitution, as with the adoption of the people’s initiative more than five years ago the text of the initiative became an article of the Constitution.
    This procedure is unusual. It’s actually not the responsibility of the citizens to care about the realisation of an adopted popular initiative – in principle everyone is in agreement about that. It is the responsibility of the Federal Council and the Parliament. Until a few years ago, the interaction between citizens and public authorities in the shaping and implementation of direct democratic instruments worked out well most of the time, but ever since the adoption of the Swiss bilateral agreements with the EU the will of the people has been ignored several times, for example regarding the Alpine Initiative (Article 84 of the Federal Constitution).
    Particularly strange is the fact that an acting federal judge has intervened in the debate, and with unusual sharpness at that, to bring down the “Durchsetzungsinitiative” i.e. the enforcement of direct democracy (see box below).
    What induced the initiators of the “Durchsetzungsinitiative” to collect signatures (over 150,000 within five months) two years after the sovereign said Yes to their first initiative? Why did they not, as the Federal Council reprimanded them, wait for the Parliament to amend the law so as to be consistant with the Expulsion initiative and then take the referendum against these new laws? (Voter pamphlet, p. 16)

At this point it must be noted most emphatically that it is not xenophobia or “a tendenciy towards isolation” which has led a large number of voters to endorse the expulsion of criminal foreigners as well as the independent control of immigration. It is rather that, facing a steadily increasing immigration (proportion of foreigners end 2014: 24.3%1, nearly a quarter of the population) and a very high proportion of foreigners in prisons (end 2014: 73%2), the Swiss want the Federal Council and the Parliament to stop paying homage to Brussels and Strasbourg and to take control of the Swiss immigration policy themselves.
Without analyzing the two initiatives in detail, we must first briefly describe their history to clarify the fact that on 28 February, it is not just a case of voting on one of many popular initiatives – much more than that is at stake.

Expulsion Initiative and counter-proposal of 28 November 2010: What is the difference?

The Expulsion Initiative – today Article 121 paragraph 3–6 of the Federal Constitution – stipulates that foreigners who are sentenced due to certain serious crimes or fraudulently obtained social benefits lose their right of residence in Switzerland and should be expelled.
Also on 28 November 2010 the Swiss voted on a counter-proposal the Parliament had decided. It included an even more detailed list of individual offences which would lead to the loss of the right of residence and expulsion. The key difference was put down in paragraph 3 of the counter-proposal:

“In the decision regarding the expulsion as well as the withdrawal of the right of residence the fundamental rights and the principles of the Federal Constitution and of international law, in particular the principle of proportionality, are to be observed.”

Well, that does not sound very restrictive – that is what a lot of people probably think. Especially for lawyers it goes without saying that in a constitutional state, even offenders have fundamental rights and that the judge has to respect the principle of proportionality, so for example take into account extenuating circumstances. The problem is in the wording “fundamental rights and general principles of international law”. This is where opinions differ.
Let us read the Federal Council’s own explanation of what bothered them about the Expulsion Initiative:

“The implementation of the Initiative would [...] lead to significant collisions with the existing guarantees given by the Federal Constitution, in particular with the principle of proportionality and the protection of private and family life. In addition, important provisions of non-compulsory international law, for example of the European Convention of Human Rights ECHR or of the agreement on the free movement of persons with the EU would no longer be met. The popular initiative is therefore recommended for rejection by the Parliament.”3 [Emphasis Current concerns]

The highlighted sentence is the bone of contention. The Federal Council (and subsequently the majority in Parliament) wanted to set a barrier to the Swiss legal system: In their opinion the European Court’s of Human Rights (ECHR) case law and the interpretation of the bilateral agreements by the EU institutions should have priority over the Swiss Federal Constitution, for example over the new Article 121 of the Federal Constitution.
However, that is exactly what the voters did not want. The Expulsion Initiative was approved by people and cantons on 28 November 2010, the counter-proposal rejected by the people and all cantons. Thus the citizens expressed their will that the Swiss authorities and the judiciary have to protect the safety of the population as a first priority, and that not only the personal interests of the foreign offender deserve protection.

Implementation of the will of the people: Federal Berne is procrastinating

Now we have arrived at the basic problem that has inspired the initiators to launch the “Durchsetzungsinitiative”: They want Government, Parliament and the judiciary to enforce the will of the people in an undiminished way. Whenever “foreign judges” in Strasbourg or the “EU” (this often means the President of the European Commission, Jean-Claude Juncker) flex their muscles, our federal councillors, their selected negotiating diplomats and large parts of the Federal Assembly start to boggle.
After the adoption of the Expulsion Initiative the Federal Council did not hasten to implement it and word got around in federal Berne that its “conciliatory solution” would be similar to the counter-proposal of 2010, rejected by the voters.
Therefore, in order to show Parliament how they envisaged its implementation, the initiators of the expulsion initiative found it useful to become active before the Federal Council’s dispatch for the attention of Parliament was on the table. In June 2013, while they were collecting signatures for the “Durchsetzungsinitiative”, the Federal Council presented its “conciliatory solution”. In November 2013, the initiative was submitted; its wording made an impact on the parliamentary debate. After tough and sometimes heated discussions, the Swiss National Council and Council of States finally agreed on 20 March 2013 to a provision in the criminal code containing a hardship clause rather than the principle of proportionality.4 The initiators were not  convinced by this distinction between the two terms and therefore did not withdraw their initiative.

Why the “Durchsetzungsinitiative” is so long-winded

“[…] More than five years ago a clear majority of voters  approved the expulsion of foreign criminals at the ballot box. The Federal Council and Parliament have now written a hardship clause into the implementation law by which virtually every expulsion can be prevented. Thus the judges will always find a reason why a convicted criminal does not have to leave [...].” (Arguments of the Initiative Committee, Voter pamphlet, p. 25)

In accordance with the criticism outlined above the initiators chose the form of a transitional provision to Article 121, para 3–6 of the Federal Constitution (expulsion of foreigners), that shall be applied as legally binding only until the time the Federal Assembly will have decided on a viable implementation into federal legislation that would also have to be able to overcome the obstacle of an optional referendum.
The Federal Council criticises in the voter pamphlet:

“…It (the popular initiative) seeks to write the provisions on expulsion directly and in a detailed manner into the constitution. In case the popular initiative is adopted, Parliament would thus be eliminated as legislator and could no longer have a say on key issues of our policy relating to foreigners.” (Voter pamphlet, p. 15)

The text of the popular initiative is very extensive indeed, because – in a manner similar to a law – in a transitional provision the initiators enumerate under the heading “I. Expulsion” first all those serious criminal offences which in themselves are to result in an expulsion, and, secondly, less serious crimes, which are to be punishable with expulsion only in case of further offences. The expulsion of a convicted criminal foreigner is to be joined to an entry ban of 5 to 15 years, which can be extended to 20 years in case of recurrence (II 1.–3.).
Pursuant to III the expulsion order will not be enforced if the convicted person would be subject to torture or any other form of inhumane treatment or punishment in the state in question (principle of non-refoulement laid down in Article 25 of the Federal Constitution, a binding principle of international law).

Rigorous provisions

There are many who perceive it as rather cold-hearted that beyond the non-refoulement principle it will not be possible to refrain from a deportation except in cases of self-defence and emergency (I 4.).
Equally severe – especially for those people who have lived in Switzerland for a long time or have even grown up here – is the provision under I 5.: “All persons, irrespective of their status under the law of foreign nationals, shall lose their right of residence and all legal rights to remain in Switzerland, or to re-enter into Switzerland, if they are convicted with legally binding effect.”
It is understandable that there are voters who experience difficulties regarding these two provisions.

The crux of the matter: independent regulation of Swiss internal affairs

But let us now return to the central issue of our discussion: On 28 February, much more is at stake than just a provision for the expulsion of criminal foreigners. Essentially, what is at stake is the enforcement of direct democracy. The crux of the matter is that Swiss voters are determined not to abandon the managing of their own affairs and not to become increasingly subject to restrictions in their ability to exercise their political rights by bilateral and multilateral treaties.
To this purpose, the text of the initiative includes the following passage:

“IV. Relationship with international law. The provisions on expulsion and the procedures of their enforcement take precedence over non-binding international law.”

In this context, “non-binding international law” means in the first place the ECHR and the jurisdiction of the European Court of Human Rights as well as the bilateral agreements with the EU. That explains why the initiators refuse to leave the slightest margin of discretion to the Swiss judiciary (see box on p. 7).

The ECHR and the agreement on the free movement of persons are not cast in stone

The ECHR and the agreement on the free movement of persons – like most international treaties – include a termination clause and can be renegotiated – for logical reasons, however, this has to be done by Federal Councillors and diplomats committed first and foremost to advancing the instructions of their sovereign, the Swiss people, rather than those of foreign powers. Therefore, we Swiss insist – and rightly so – that our authorities, including our judicial authorities, apply Swiss law, implement the popular will, stay honest and upright in their dealings with Strasbourg, Brussels and overseas countries and defend the interests of Switzerland with great dedication and courage.
The same applies to the control of immigration. The Federal Council is blatantly refusing to implement this in line with the popular will. Instead of seeking a regulation with maximum figures and quotas and instead of renegotiating the agreement on the free movement of persons with this aim in view, as has been required by the Federal Constitution for two years now (Article 121a and Article 197, item 9), Federal Councillor
Schneider-Ammann places himself in the same boat with EU-Commission President Juncker. With his talk of “protection clauses” which the Federal Council wants to manage on its own account – but in reality under the command of the EU-Commission – he is simply taking the renegotiation of the free movement agreement off the agenda.    •

1    https://www.sem.admin.ch/sem/de/home/publiservice/statistik/auslaenderstatistik/archiv/2015/11.html; “Staatssekretariat für Migration SEM, Ausländerstatistik November 2015”
2    http://www.bfs.admin.ch/bfs/portal/de/index/themen/19/03/05/key/ueberblick/wichtigsten_zahlen.html; “Bundesamt für Statistik bfs, Freiheitsentzug, Strafvollzug – Daten, Indikatoren – Überblick: Kennzahlen”
3    Press Release of the Federal Department of Justice and PoliceFDJP from 14.1.2009, “Gegenvorschlag zur Ausschaffungsinitiative: Vernehmlassung eröffnet”
4    “In exceptional cases, the court can refrain from a deportation if it would bring about a serious personal hardship for the affected foreign national, and if the public interest in a deportation does not outweigh the foreign national’s private interest in staying in Switzerland. The court shall take into account the special situation of foreigners who were born or raised in Switzerland.”

The Federal Court – a Swiss stronghold of law or a satellite of Strasbourg?

mw. Since some time the Federal Court openly refuses to apply provisions of the Federal Constitution because they would violate the European Convention on Human Rights. Such in a decision of 12 October 2012: There one can read that the Expulsion Initiative (or the new paragraphs 3–6 of Article 121 Federal Constitution) were “not directly applicable, but need to be put into practice by appropriate legislation; they would not take priority over the fundamental rights or guarantees of the ECHR“. And the judges add: “The values expressed by the constitution can be taken into account as far as they don’t result in any way in conflicts with overriding law [...].” [Accentuations by Current Concerns]
A handful of judges this way belittles a constitutional article set by the sovereign down to a gut feeling – arrogance beyond comparison! And they refuse to apply Swiss law, if this could be contrary to the escalating jurisprudence of the European Court of Human Rights!

The Federal Court – a (second) little brother of the EU Court of Justice?

The latest act of submission: On 26 November 2015, the Federal Court decided to take on the practice of the European Court of Justice (ECJ) as a principle, in the sense of a “most possible parallel jurisprudence”.
Despite the Yes of the sovereign to the Mass Immigration Initiative that represents constitutional law since two years, the sentence sais: “The Federal Court has already decided with regard to the Free Movement Agreement that this has priority over national law, even if the law intentionally differs from AFMP.” [Accentuations by Current Concerns]

(Decision of 26 November 2015, press release of the Federal Court; www.bger.ch/press-news-2c_716_2014-t.pdf)

Mind you: This is about the supreme court of the European Union (EU), which has nothing, absolutely nothing to order about the non-member-country Switzerland. And are we really angry over the court president Baudenbacher who calls his “EFTA Court” the “little brother of European Court of Justice”? If the Swiss Federal Court subordinates itself as another little brother of the jurisdiction of the great power and bluntly refuses to apply Swiss law, we can indeed join the EU right now...
Else we insist again and again on the enforcement of direct democracy!

Swiss Federal Judge takes position against direct democracy and offends the people

mw. It is astonishing: A federal judge, unauthorized, does voting propaganda and declares the “Durchsetzungsinitiative” “inadmissible and not compatible with the current conception of the Swiss democracy”, since it ignores  “minority- and individual rights”. So the “pluralistic concept of democracy” will be reduced to a “mere arithmetical concept” in which the majority would exclusively prevail. The “actual development” might give “reason for consideration”, whether the parliament will have to declare initiatives invalid “if they contradict fundamental principles of a state under the rule of law”. Finally Federal Judge Thomas Stadelmann comes up with an outrageous statement: “Could we exclude, for instance that we will vote on questions some day, like in Germany in the ‘30’s of the last century, when a law became valid, that deprived whole religious groups of their civil rights?”

Source: Schweiz am Sonntag from 9 January 2016

Offenses covered by the “Durchsetzungsinitiative”

1.    Paragraph 197, subparagraph 9 (new) allows for expulsion, independent of the duration of the sentence, under the following conditions:
a.    wilful killing, murder, homicide;
b.    grievous bodily harm, endangerment of life;
c.    burglary offense through cumulative [i.e. simultaneous] performance of the criminal offenses larceny,  criminal damage and trespass; [which means: a simple theft will not lead to expulsion, nor the theft of goods under SFR 300.- this is a mere misdemeanour];
d.    aggravated theft [professional or ring-based], robbery, professional fraud, aggravated extortion, professional dealing in stolen goods;
e.    fraud in the areas of welfare, social security, social abuse;
f.    human trafficking, aggravated unlawful detention and abduction, hostage-taking;
g.    sexual assault, rape, mutilation, furtherance of prostitution [introducing minors to prostitution, bringing someone in need to it, supervising someone in it, holding someone in it];
h.    genocide, crimes against humanity, war crimes;
i.    violation of narcotics act of 3 October 1951: paragraph 19 subparagraph 2 [scienter health hazard for many persons, ring-based trade, professional trafficking at a large scale or profit; professional trafficking near educational institutions for minors] or of paragraph 20 subparagraph 2 [professional trafficking at a large scale or profit]
2.    Expulsion after a second criminal sentence within the past ten years (prison sentence or pecuniary fine) for:
a.    actual bodily harm, exposure [of a child], brawl, assault [resulting in death or bodily harm for the assaulted];
b.    trespass in connection with criminal damage or theft;
c.    aggravated embezzlement [as authority member, civil servant, guardian, advisor, professional property guardian, official profession], professional fraudulent abuse of a data processing system, professional check or credit card fraud, professional price gouging;
d.    unlawful detention and abduction;
e.    sexual conducts with children, with dependants, sexual conducts with institution wards, prisoners, accused persons, exploitation of an emergency, pornography [recruitment of minors for participation in a pornographic performance];
f.    arson, deliberate causation of an explosion, endangerment through explosives and toxic gases in criminal intent, production, hiding and transport of explosives and toxic gases;
g.    forgery or adulteration of money;
h.    public incitement to crimes or violence, participation in or support of a criminal organisation, threat to public security by the use of weapons, financing of terrorism;
i.    violence and threat against authorities and civil servants, violation of an official expulsion from a canton or the state;
j.    false accusation [false accusation of a felony or an offence against better knowledge], aggravated money laundering, false statement, false expert opinion, false translation [false statement as interpreter/translator];
k.    wilful infringement of paragraphs 115, subparagraphs 1 and 2, 116 subparagraph 3 or 118 subparagraph 3 of the aliens act;
l.    infringement of paragraphs 19, subparagraph 1 or 20, subparagraph 1, narcotics act [see above, first section]
3.    […]
4.    An expulsion may be waived if the action has been committed in justifiable self-defence (paragraph 16 penal code) or in justifiable emergency. (paragraph 18 penal code)
5.    A person that has been imposed with legally binding expulsion will lose, independent of the legal status as an alien, his or her right of residence, as well as all legal claims for residence in Switzerland and return to Switzerland.
(Translation Current Concerns)