International vs national law: a manufactured controversy?

The European Convention on Human Rights guarantees the right to lead a family life with one's children Keystone

The rightwing Swiss People’s Party is calling for a people’s initiative, saying that “democratically legitimised Swiss law” should take precedence over international law, despite the constitution stating the opposite. But human rights experts say the conflict is artificial.  

“I can’t rule out a special party conference on this topic this year,” People’s Party President Toni BrunnerExternal link told swissinfo.ch. After an internal party consultation process about a possible constitutional amendment in the field of “national law versus international law”, the party leadership will present a possible proposal later this summer. 

Specifically, it concerns the European Convention on Human RightsExternal link (ECHR), which Switzerland signed 40 years ago. Recently, in several political initiatives, the People’s Party has called into question the precedence of the convention.

The president of Switzerland’s largest party says the government, judges, prosecutors and law professors have made a decisive contribution to international law taking precedence over Swiss law. 

“People’s initiatives are no longer implemented. The democratic system is increasingly undermined,” he complained.

In contrast to international law, national law is democratically legitimised, he said. Therefore, the People’s Party will take countermeasures to stop “Swiss law being increasingly squeezed out by foreign law”.

“The ECHR is not foreign law but also Swiss law,” corrected Alex Sutter of the human rights organisation, Humanrights.chExternal link. 

“Switzerland has ratified the ECHR and this is part of the Swiss legal system. The difference which the People’s Party portrays between Swiss law and international law is completely built on political motives because the party sees an opportunity to capture votes from those people who know nothing about it.”

Mandatory international law

“We have noticed a creeping expansion of mandatory international law,” said Brunner. He refers to the cabinet and government decision to declare invalid one clause of the “enforcement initiative”. 

With this initiative, the People’s Party has been demanding the consistent implementation of its previous “deportation initiative” which called for the deportation of foreigners convicted of serious crimes and which was adopted by Swiss voters in 2010.

In the enforcement initiative, the People’s Party lists in detail the crimes for which foreigners should be deported from Switzerland, providing mandatory international law is not violated.  

However, the text has narrowed the definition of mandatory to the prohibition of torture, genocide, war of aggression, slavery and the prohibition of returning an individual to a country where he or she is threatened by torture or death.

“We want clarity on how it relates to mandatory international law,” said Brunner. “It is strange that the cabinet says you shouldn’t define mandatory international law according to its original purpose.”

According to Justice Minister Simonetta SommarugaExternal link, mandatory international law concerns universal basic rights which the international community has agreed and which cannot be defined or limited by a single country. 

With this declaration, made in November, she explained why the cabinet considered the enforcement initiative to be partially invalid.

The government has also listed what in its view belongs to mandatory international law. “It is a more sophisticated and more extensive list than the People’s Party has drawn up,” said Sutter.

‘Worst offenders protected’

The People’s Party is not satisfied with the government’s response. “We are observing that mandatory provisions of international law are increasingly derived from the jurisdiction of the European Court of JusticeExternal link. Even the Federal Court in LausanneExternal link is taking into account the possible revision of its decisions in Strasbourg.”

Brunner is outraged. “We are aware of judgements that have nullified constitutional amendments with reference to international law. Some of the worst criminal offenders of foreign origin have been protected from deportation under the pretext of family reunification and they have even been awarded compensation.”

The People’s Party returns again and again to the judgment of the European Court of Human RightsExternal link of April 2013 in the case of the Nigerian, known by his initials K.U. The man’s biography and offences have been extensively documented and published. 

“It doesn’t comment on the extent of this person’s criminality, because it is a purely subjective interpretation,” said Sutter. It concerns article eight of the ECHR, the “right to respect for private and family life”, i.e. the right to lead a family life with one’s children.

Weighing up conflicting interests

“In such cases, the courts – also the Federal Court – have to balance on the one hand the public interest in deporting the person and on the other hand the interest of the family of the deportee,” said Sutter.   

“This trade-off can be very complex in individual cases because different factors play a role: biographical situation, length of stay, social integration, prognosis and in particular relationships with children. It is also particularly about the rights of the child.” 

However, Brunner sees a pattern. “I know of a case in canton Thurgau or the Basel region where an offender quickly got someone pregnant.  And when a child is on the way, the offender is protected and is allowed to stay in Switzerland on grounds of family reunification,” he said.

“That is pure fantasy,” countered Sutter. “All courts always deal with individual cases. The fact that there’s a child does not mean that the father can remain in the country. There are many examples of people being deported although there were children whose rights were defended by the European Court of Human Rights. The children are an important factor, but they don’t automatically mean you can’t be deported.”

In the past 40 years – that is, since Switzerland recognised the European Convention on Human Rights – the “right to respect for private and family life” has led to only 27 reprimands from Strasbourg.

Case study

Switzerland is allowed to deport Kosovar national A.U.,  who has been convicted of serious crimes. The European Court of Human Rights unanimously approved the eviction on June 24, 2014. According to the court, the ruling does not contravene the “right to respect for private and family life”.  In 1998, A.U. fled to Switzerland from the conflict in Kosovo with his mother and siblings. As a result of various sentences imposed by the juvenile court, A.U was made aware that he was at risk of being deported. In 2005, he was sentenced to two-and-a-half years in prison for several thefts, break-ins and property damage. While in detention, he married a Swiss citizen.

After the Swiss electorate approved the deportation initiative in 2010, the Swiss authorities decided to deport A.U.. The Federal Court dismissed A.U.’s appeal. It emphasised his criminal energy, potential for violence and lack of integration.

(Source: European Court of Human Rights)

(Translated from German by Vincent Landon)