New deportation law applies from October 1, 2016
A few days after the SVP enforcement initiative failed, the Federal Council today brought into force the legal provisions implementing the deportation initiative on October 1, 2016. The new provisions bring stricter regulations for the deportation of foreign nationals who have committed criminal offences. However, thanks to a hardship clause, the courts can take special situations, such as those of secondos, into account.
On March 20, 2015, Parliament had passed the amendment to the Criminal Code and the Military Criminal Code to implement the popular initiative "for the deportation of criminal foreigners"; the referendum deadline expired unused on July 9, 2015. The Federal Council had to wait for the outcome of the referendum on the enforcement initiative before enacting the new provisions of the law.
Preparations in the cantons and at the federal level
In a survey conducted last year on the entry into force of the new legal provisions, half of the cantons saw little or no need for adjustments. The other half of the cantons and the Swiss Conference of Public Prosecutors (SSK), on the other hand, expected extensive restructuring, particularly in the area of the police, the public prosecutors' offices, the courts and the migration offices, as well as adjustments to the corresponding organizational and enforcement decrees. They therefore claimed a sufficiently long preparation time of more than one year.
The Federal Council is of the opinion that the population expects the deportation initiative to be implemented quickly. In addition, with regard to the time required by the cantons, it should be noted that, due to the prohibition of retroactivity, the new legal provisions on expulsion only apply to crimes committed after the entry into force on October 1, 2016. It is therefore expected to take several months before the first court rulings involving expulsion become legally binding. This time will be additionally available to the cantons to adapt their decrees.
The entry into force of the new legal provisions also requires the amendment of numerous ordinances at the federal level. As the cantons are directly affected by some of these changes, a consultation with shorter deadlines is planned for these ordinances. Nevertheless, these ordinances can only enter into force on January 1, 2017. The staggered entry into force is possible because the ordinances in question primarily concern the enforcement of expulsion from the country and it will take several months until the first final judgments with an enforceable expulsion from the country are available.
In addition, the Swiss Criminal Register must be adapted so that sentences involving expulsion from the country can be entered and administered in accordance with the legal requirements. The new legal provisions and the adaptation of the corresponding ordinances will also create the legal basis for the implementation of the Müri motion (13.3455), which demanded enforcement statistics on the deportation of criminal foreigners.
Stricter regulation, but limited automatic expulsion
Compared to today, the new legal provisions implementing the deportation initiative provide for a significantly stricter regulation for the deportation of criminal foreigners. A mandatory expulsion is ordered by the criminal court if it convicts a foreign person of clearly defined offenses. It lasts from 5 to 15 years, or 20 years or life if the offence is repeated. The list of offenses includes, in particular, crimes in which people are killed, seriously injured or their life and limb endangered, serious sexual offenses and all serious crimes against property.
The court may exceptionally dispense with the mandatory expulsion if this would cause severe personal hardship for the foreigner and the public interests in the expulsion do not outweigh the private interests of the foreigner in remaining in Switzerland. The special situation of foreigners who were born or grew up in Switzerland must be taken into account.
In the case of all other felonies and misdemeanors under the Criminal Code and secondary criminal law, the court may also impose expulsion. This is not obligatory, but is based on a detailed examination of the individual case. This expulsion lasts between 3 and 15 years.
