THE DRAFT BILL ON STATE PROTECTION (STAATSSCHUTZ)
In September 91 the government presented a draft bill on state protection. According the governments plans, the bill should be adopted by parliament at the latest in March 1993. In this event however, a popular referendum on the bill is probable.
A summary of the state protection bill
According to the draft, State protection (SP) has the following objectives:
- The timely detection of "activities aiming at the alteration of the order of the state by force";
- "the timely detection, prevention of and the combat against terrorist and intelligence activities as well as "violent extremism";
- the combat against "efforts gravely endangering Switzerland's foreign relations and thus its security";
- the combat against "organized crime" and the participation in "security policing tasks".
The responsibility for SP is with the Confederation. The Cantons (federal states) assist the Confederation according to the law.
The Federal Police is the organ of state protection.
The limits of state protection:
The organs of SP may not use means prohibited by penal law for penetrating into the spheres of privacy and secrecy. However, according to article 11 of the bill (covert collection of information) the organs of SP may "by way of exception also collect information with under-cover agents, mandated informants (beauftragte Gew"hrspersonen) and observation in the private sphere through optical and accoustic recordings.
Objects, length and modalities of such operations must be authorized by the president of the prosecuting chamber of the Federal Court.
No such authorization is required for the collection of personal data by "the observation of activities at public places, namely with video- and audio recordings" and the federal police has automatic access to all personal records under public administration (art. 10).
A consultative commission designated by the government advises the Federal Deapartment of Justice and Police (FDJP) and periodically produces situation reports which "serve as a basis for state protection tasks".
The government defines the general task of state protection which serves as a base for the particular instructions given to the competent services.
All public administrations and all organisations under federal public law are entitled to inform SP organs on threats for internal security on their own initiative.
In the event of "increased threat to internal and external security" the government regulates by ordinance, when such information is compulsory.
The federal police authorities assess on their own the accuracy and importance of their information.
SP data are processed with the help of an electronic data base accessible only to persons entrusted with SP. "Individual information" can however be communicated to third persons. Such "individual information" is transmitted to most federal administrations (as e.g. the authorities dealing with foreigners, asylum seekers, customs and border control, criminal prosecution, military intelligence, foreign trade, services dealing with security screening of persons). "Individual information" can also be handed out to private applicants, if such is "necessary for justifying a request for information".
The unrestricted communication of personal SP data to state security organs of foreign countries is permitted on condition that it is provided for by a law or a bilateral agreement or when it is "an imperative necessity for safeguarding considerable security interests of Switzerland or of the addressee" (art.13,2).
According to art.23 the government is entitled to conclude treaties on the carrying out of SP tasks with foreign states through its own competence, as far as they "comply with the principles of this law".
Any person is entitled to apply for access into the files concerning him. Information is however refused, restricted or postponed, "when this is necessary with regard to preponderant public or private interests...".
Any person can demand the errasure of incorrect information or the mention of his contesting statement concerning contents of his file.
An appeal procedure is provided for. The last instance of appeal is the Federal Court.
Security screening:
The government can introduce security screening for employees of the Confederation when, among other things, they have regular access to or influence on government, secrets of internal and external security, or defence matters.
The government regulates the right of insight of persons submitted to security screening and of the inquiring administration.
The Justice and Police department controls the legality, effectiveness and efficiency of SP organs.
Parliamentary control of SP activities is assured by a special commission.
The government periodically informs the public on the general mandate of state protection and on SP activities.
Source: Bundesgesetz über den Staatsschutz, Vorentwurf vom 30.9.1991, Eidgenössisches Justiz- und Polizeidepartement.A critical comment
"The law on state protection determines up to which limits the behaviour of the citizens may be kept under surveillance and registered before the presence of a materialized suspicion of a delictuous act justifying the opening of a criminal investigation. Thus it determines - more than any other law - the degree of personal freedom. A state protection law deserving its name must therefore unequivocally determine by which ways and means the political police may proceed and what is absolutely out of the question. The law must provide just as unequivocally which data may be registered and set maximum periods for their storage." (Peter Hug in an editorial in the Zurich daily "Der Tagesanzeiger").
These fundamental requirements are not met by the Swiss SP bill.
On the contrary, the draft constitutes a precedent for executive power efforts to undermine the rule of law by introducing laws with the character of general clauses. The aims and objectives of the law are vaguely defined in "elastic" provisions, while the government is entrusted with the promulgation of the ordinances and decrees which will give the law its real meaning. This leads to nothing less than the undermining of the rights of parliament.
The SP bill provides for preventive intelligence against "terrorism". In its official comment on the bill, the government defines as "terrorist" every threat of an "attack against the physical or psychological integrity of a person, aimed at achieving a political or illegal goal by creating fear and and fright".
With this definition attempt the Swiss have gone beyond the sweetest dreams of even the German police. Indeed, the mere intention to commit burglary would thus become a "terrorist threat"...
And what is "violent extremism"? The bill, it is true, prohibits political police activities against political and union organizations. But this restriction no longer applies, when the political police suspects the preparation not only of a serious crime, but of a simple delict. The following example shows what this can imply in practice: As late as 1989, Gret Haller and Anita Fetz, two members of the Swiss parliament, were secretly registered by the Federal Police, because they had both signed the "Basel Appeal against Gene-technology". A senior official of the Federal Folice later publicly justified the measure on the grounds that a series of bomb attacks had been carried out the same year against gene-technology institutes... in Germany. Thus, in the view of the federal police, any person in Switzerland opposed to gene-technology was to be put under preventive surveillance as a potentially "violent extremist".
As for the "efforts seriously endangering the foreign relations of Switzerland", the previous practice of the political police leaves no doubt about its future interpretation of the provision: For years, the political police spied upon AAB, the Swiss section of the Anti-Apartheid movement. AAB was infiltrated by the South African secret service with the knowledge (and tacit support?) of the Swiss authorities. Based on troubling evidence found in the police files on AAB members the Swiss weekly "Die Wochenzeitung" recently publicly suspected the Federal Police of having been informed in advance of the assassination of ANC-representant Dulcie September in March 1988 in Paris. "Wochenzeitung" draws its conclusions from the numerous entries relating to winter 1987/88 on the AAB-files. Important passages of the entries were blackened by the official delegate of the government in charge of communicating the files to the persons concerned. The "Wochenzeitung's" call for public disclosure of these entries has not been heard by the government so far.
The SP provides for the unrestricted video- and audiorecording of any activity in public places (e.g. peaceful demonstrations) and thus the hoarding of intelligence data "on stock". The use of undercover agents just as the bugging of bedrooms are legalized even beyond materialized suspicion of a crime.
The respect of official secretsy by public administrations and organizations is no longer guaranteed. According to the bill the post and telecommunication services are entitled, if not bound, to communicate information on "threats to internal security". This drew the following comment from Alexander Tsch"ppat, a judge member of the PUK I: "This very simply means: for the preventive, i.e. precautionary surveillance of telegrams and mail or the interception of telephone conversations there will no longer be a need for particular legal provisions. This is a step back in comparison with the regulations presently in force. All provisions concerning official secrets are invalidated in the sphere of state protection". Tsch"ppat's judgement of the bill as a whole is crushing: "Instead of eliminating the grievances revealed by the PUK in the domain of collection and passing on of personal data by the political police, the bill at issue in advance deprives any complaints of a legal ground. Thus, a situation intolerable from a constitutional point of view is not removed but simply legalized instead."
Opponents of the bill criticize the lack of sufficient parliamentary control. Indeed the planned hand-picked commission of control is not granted the right of complete information, and worse, can be prevented by the government from making its findings public. Obviously the government has not forgotten the role of parliament in going public with the "file scandal".
The temporally unlimited storage of data, the breach of official secret and the intrusion in the sphere of privacy provided for in the SP bill conflict with current Swiss legislation on data protection. The government intends to eliminate the problem by proposing an amendment of the data protection law. A new article 21 is to authorize the government to permit data processing in the domain of state protection and military security without a formal legal provision and beyond the restrictions of the data protection law.
The introduction of this exception clause in the data protection law and the cooperation with police and security of foreign countries provided for by the SP bill pave the way for the European harmonization of Swiss policing policies.
According to "Wochenzeitung" Switzerland intends to officially exchange liaison officers with the EC countries.
Already, Switzerland is leading with regard to the transfer of know-how in the domain of data-processing. South-Africa is among the countries, whose police forces have benefited from the expertise of their Swiss colleagues.
In the view of the critics of the political police, these developments lead directly to the country's integration into a "European snooping state".
In their opinion, there is only one alternative to unbridled political and "preventive" snooping: Political policing must be prohibited by law, the SP bill rejected. As judge Tsch"ppat puts it: "With the penal code presently in force and thus without a state protection law, a sufficient number of legal provisions exist which allow for an extensive protection of the state and its citizens."
Nicholas Busch
Sources: "Fichen-Fritz" (newsletter of the committee "Stop the Snooping State") no.1-9, Komitee Schluss mit dem Schnüffelstaat, Postfach 6948, CH-3001-Bern; "Der Brückenbauer", Zurich, 11.3.92; "Der Tages-Anzeiger", Zurich, 12.10.91; "WochenZeitung", Zurich; 4.10.91; "Tagwacht", 19.3.92. For further information contact: Catherine Weber, Komitee Schluss mit dem Schnüffelstaat, Postfach 6948, CH-3001 Bern, Tel: +41 31 454858; Beat Leuthardt, Postfach 1856, CH-4001 Basel, Tel: +41 61 2616464.</address>