NEW LAW ON "COMPULSORY MEASURES" AGAINST FOREIGNERS
On 18 March, the Swiss federal parliamentary assembly adopted new provisions of the foreigner law introducing "compulsory measures" against foreigners. The new articles allow for the detention of foreigners older than 15 for up to one year, even if they have not been found guilty of a crime. Furthermore, foreigners can be ordered to stay in or keep away from certain areas decreed by the authorities. Police may search any house on mere suspicion that a foreigner subject to an expulsion order might be hiding there. The new measures are unique in Europe.
Territorial bans
Police authorities of the Cantons (constituent states) can order any foreigner without a residence permit not to leave, or not to enter a designed particular area if he/she "disturbs or endangers public security and order". A ban remains in force even if a legal challenge to it has been mounted. Non-compliance may be punished with up to one year of imprisonment.
"Preparatory detention"
The law introduces a new form of detention, the so called "preparatory detention". It can be ordered by police authorities (!) in order to secure the execution of an expulsion procedure pending the preparation of a decision.
Preparatory detention can be ordered (for example) whenever the identity of a foreigner is uncertain due to his own behaviour, and when a foreigner fails to comply with a territorial ban, applies for asylum after a legally valid expulsion measure or is subject to criminal prosecution following serious threats against individuals.
Detention for expulsion
In order to secure the carrying-out of an expulsion measure following a first administrative decision, the cantonal authorities can
- keep a foreigner previously subjected to preparatory detention in custody;
- detain a person on the same grounds as the ones used to justify preparatory detention and, additionally, in presence of "concrete indications" that they intend to evade deportation.
This form of detention is limited to three months but can be prolonged by a maximum of six months upon approval of the judiciary. This implies that a foreigner first held in "preparatory detention" may be detained for up to a year without having been found guilty by a court and by mere decision of cantonal police authorities. Judicial control, if any, is provided for only after the event.
All measures above can be pronounced against foreigners older than 15 years.
Stephan Trechsel, a Professor of law and Swiss representative at the European Commission on Human Rights involved in drawing up the bill, involuntarily revealed the ambiguity of such legislation when asserting that even if someone had been deprived of their liberty under one of the above measures, this did not imply that they were in fact guilty of anything.
Bodily search and house search without a mandate by a judge
During an expulsion procedure a foreigner can be submitted to a bodily search and police can search any home or other premises without a mandate by a judge on the mere suspicion that a foreigner subject to an expulsion or deportation measure is hiding there.
According to the law, persons detained under the provisions above should, whenever possible, be held separately from convicted and remand prisoners.
Cantons that build detention centres for foreigners may have their costs reimbursed by the Swiss Confederation.
Referendum campaign against the new legislation
Against the background of a populistic right-wing campaign against "asylum abuse" and "criminal foreigners" (see CL No. 19, p. 3) the "compulsory measures" were introduced under an accelerated legislative procedure and without significant opposition in parliament.
Ever since, however, opposition against the new law has been on the increase.
Critics of the law have formed a committee aiming at obtaining a popular referendum. In Switzerland any law adopted by parliament must be submitted to a referendum if at least 50,000 voters require so by signing a referendum list.
The "Committee against compulsory mea-sures in foreigner law" hopes to gather the necessary signatures before 4 July, the date when the law will otherwise enter into effect.
The actual strong anti-foreigner sentiments among the Swiss population combined with a massive campaign on "internal security" by police authorities leave little hope for a popular vote against the new law. But for the initiators of the referendum campaign, manifesting opposition against a law they consider as unconstitutional and genuinely discriminatory is a matter of principle and political credibility and will pay off in the long term.
One of the prominent supporters of a referendum, the former UN High Commissioner for Refugees, Jean Pierre Hocké, does not mince his words: "The legislator has gone too far in order to placate the xenophobes. Yet by doing so, such people are only encouraged to demand more and more." The law creates the risk that different categories of foreigners will be created, Mr. Hocké asserts, and he warns against its possible effect of a "general discrimination against foreigners".
In the view of Andreas Auer, professor of public law at the University of Geneva, "never before has a law as discriminatory and dangerous for human rights been adopted in Switzerland".
Supporters justified the law by pointing to the need to combat drug related crime and improve public security. But the Swiss section of Democratic Jurists points out that the law is unlikely to become an efficient instrument of crime control considering that even existing criminal law is not systematically enforced. Instead, the "compulsory measures" are likely to foster arbitrariness, the Democratic Jurists claim. The law, they say, threatens not only fundamental rights of foreign offenders, but of foreigners as a whole and even genuine Swiss citizens. Indeed, the law permits police to carry out random house searches under the pretext of hunting a foreigner eluding deportation. There is unanimity among the opponents of the law that the "compulsory measures" could soon prove to have a domino effect by paving the way for the gradual introduction of further special legislation to the prejudice of other sectors of the population.
Until now, support from political parties for the referendum campaign has been all but non-existent. However, bowing to growing protests in its own ranks, the Swiss Social Democratic Party recently reversed its decision not to support a referendum campaign it viewed as doomed to certain failure and formally joined the referendum committee.
Sources: Bundesgesetz über Zwangsmassnahmen im Ausländerrecht (Federal law on compulsory measures in foreigner law), 18 March 1994; *Die Wochenzeitung* , 18.3.94; *Tagesanzeiger* , 23.4.94; *SonntagsZeitung* , 1.5.94.