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Switzerland: Extended Deportation of Criminal Foreigners Rejected

(Mar. 7, 2016) On February 28, 2016, Swiss voters rejected by a vote of 58.9% to 41.1% the “Enforcement Initiative.” The initiative proposed the automatic deportation of foreigners who committed certain crimes, regardless of the imposed penalty. Foreigners are defined as persons who do not hold Swiss passports. (Volksinitiative “Zur Durchsetzung der Ausschaffung krimineller Ausländer“ (Durchsetzungsinitiative),Volksabstimmung vom 28. Februar 2016 [Popular Initiative “Enforcement of the Deportation of Criminal Foreigners” (Enforcement Initiative), Referendum of February 28, 2016], Federal Department of Justice and Police website (Feb. 28. 2016).)

The initiative proposed automatic deportation from Switzerland for foreign criminals in two types of cases. First, it stated that foreigners who committed certain major crimes, including homicide, aggravated assault, and rape, but also social security fraud and drug-related crimes, would be automatically deported from Switzerland for 10 to 15 years, regardless of the imposed penalty. This represents an increase over the current period of 5 to 15 years.  Second, it proposed the automatic deportation for a period of 5 to 15 years of foreigners who had been convicted of a felony or a misdemeanor within the last 10 years and who had committed another enumerated crime, including assault, trespassing, kidnapping, sexual assault of children, arson, counterfeiting, and false accusation. A deportation could only be avoided if the foreigner had acted in self-defense or out of necessity. (Bundesbeschluss über die Volksinitiative “Zur Durchsetzung der Ausschaffung krimineller Ausländer (Durchsetzungsinitiative)” [Federal Decision on the Popular Initiative “Enforcement of the Deportation of Criminal Foreigners (Enforcement Initiative)”], BUNDESBLATT [BBl.] [FEDERAL GAZETTE] 2701 (2015).)

Background

A similar initiative on the automatic deportation of foreigners who commit violent or sexual crimes or social security fraud had been approved by the Swiss voters in November 2010, with 52.3% voting in favor. (Bundesbeschluss über die Volksinitiative “Für die Ausschaffung krimineller Ausländer (Ausschaffungsinitiative)” [Federal Decision on the Popular Initiative “For the Deportation of Criminal Foreigners (Deportation Initiative),” AMTLICHE SAMMLUNG DES BUNDESRECHTS [OFFICIAL COMPILATION OF FEDERAL LAWS] 1199 (2011).) The current referendum was initiated by the right-wing Swiss People’s Party (Schweizerische Volkspartei, SVP) in 2012, because they were dissatisfied with the way the Swiss legislature proposed to implement the terms of the referendum and called it a “toothless paper tiger with a hardship exception.”  A judge has the discretion not to deport a foreigner if it would cause serious personal hardship. (Extrablatt der Schweizerischen Volkspartei [Special Edition from the Swiss People’s Party] (Jan. 2016), at 1, SVP website.)

Implementation of the 2010 Initiative

The Swiss law, which implements the 2010 initiative and will enter into force on October 1, 2016, states that a foreigner will be automatically deported and cannot return to Switzerland for 5 to 15 years if he or she has committed certain violent crimes, including homicide and aggravated assault, sexual crimes including rape, and social security and tax fraud. A judge has the discretion not to deport the foreigner if it would constitute a serious personal hardship. For felonies and misdemeanors not listed in the law, a judge has the discretion to deport the foreigner for a period of 3 to 15 years. (Schweizerisches Strafgesetzbuch und Militärstrafgesetz (Umsetzung von Art. 121 Abs. 3–6 BV über die Ausschaffung krimineller Ausländerinnen und Ausländer) [Swiss Criminal Code and Military Criminal Code (Implementation of Art. 121, Paras. 3-6, of the Swiss Constitution on the Deportation of Criminal Foreigners)], BBl. 2735 (2015); Press Release, Neues Ausschaffungsrecht tritt am 1. Oktober 2016 in Kraft [New Deportation Law Will Enter into Force on October 1, 2016] (Mar. 4, 2016), Federal Department of Justice and Police website.)