Swiss vote to automatically expel foreign criminals. Sensible or perverse?

In 2010, 52.9% of Swiss voters agreed that foreigners convicted of certain crimes should be deported. Following the vote, in March 2015, Switzerland’s parliament approved laws enacting the measure. The Swiss People’s Party (UDC/SVP), the vote’s organiser, cried foul, claimed the new laws watered down the original text, and proposed a more rigid formulation that voters will accept or reject on 28 February 2016.

The history and politics of deporting convicted criminals

The first vote on the deportation of foreign criminals was on 28 November 2010. The vote was proposed and organised by the Swiss People’s Party, who cited disproportionately high rates of serious crime among Switzerland’s foreign population, neglect of the rights of crime victims, and the high cost of housing foreign criminals. The initiative was designed to strip foreigners of the right to stay in Switzerland if they were convicted of homicide, a break-in, robbery, human trafficking, serious sexual crimes, drug trafficking or benefits fraud.

© Denis Linine | Dreamstime.com

© Denis Linine | Dreamstime.com

Concerned the changes would be in conflict with the Swiss constitution and international laws, both the Swiss parliament and the cabinet advised voters to reject the initiative. Seven of Switzerland’s main political parties also rejected the plan. Those parties supporting it were La Lega dei Ticinesi, the Federal Democratic Union and the Swiss People’s Party.

After the votes were counted the often-seen differences between rural and urban voters and between French and German speakers were evident. These can be seen on the map below.
In the end 20 out of 26 cantons” voted Yes”, and 6 “No”. The cantons in the “No” camp were Fribourg, Basel City, Vaud, Neuchatel and Geneva.

After nearly 5 years of Government to-ing and fro-ing, laws implementing the initiative were finally passed in March 2015. The final laws gave judges discretion and allowed for exceptions. A clause was added that allows judges to consider proportionality and hardship when deciding whether to apply the new rules, particularly when applying them to secondos – non-Swiss who were born and grew up in Switzerland.

The Swiss People’s Party did not like the discretion given to Swiss judges and decided to take the issue back to voters. An application for a second popular vote on the subject had been lodged back in December 2012, so the second vote was already to go when the laws passed in March 2015 didn’t meet with the Swiss People’s Party’s expectations. The government had had the threat of a second vote hanging over it for more than two years.

Swiss People's Party advertisement - Source: Swiss People's Party

Swiss People’s Party advertisement – Source: Swiss People’s Party

The text being put to vote this time rules out the judicial discretion included in the March 2015 laws, and would make expulsion automatic, preventing judges from using their judgement.

Some think the new text is perverse. Law makers and many in government are wondering how they will make it compatible with international laws and the Swiss constitution.

Others think it’s a pragmatic way to reduce crime and cut spending on prisons.

Foreign criminality statistics

Swiss Statistics Office figures show that the percentages of convictions handed to foreigners for certain crimes are high relative to their numbers. In 2014, 57% of the year’s 200 murder convictions were handed to foreigners. Percentages of convictions handed to foreigners for robberies (59% 0f 1,242), break-ins (73% of 4,273) and rape (61% of 463) were also disproportionately high. Given foreigners made up 24.3% of Switzerland’s population in 2014, their conviction rate for these crimes was a multiple of the rate for Swiss citizens.

Swiss prison statistics present a similar picture. Foreigners made up 71% of the total prison population of 6,884 in 2015. While the percentage of foreigners is high, absolute prisoner numbers are low by international standards. There were only 83 people per 100,000 incarcerated in Switzerland in 2015, 95% of them men. In 2013, the United States had 2.2 million people behind bars, or 698 per 100,000. Many other countries in Europe have higher incarceration rates than Switzerland. 2016 statistics for England and Wales put their rate at 147 per 100,000 residents. Italy (86), France (95), and Austria (95) all have higher rates. Germany (76) is the only neighboring country with a lower rate.

© Willeecole | Dreamstime.com

© Willeecole | Dreamstime.com

In a paper published in 2012, André Kuhn, professor of criminology at the Universities of Lausanne, Neuchâtel and Geneva, explains that this phenomenon is not unique to Switzerland. Foreigners are overrepresented in prisons in most countries. He believes linking criminality to nationality is largely false causation. Instead the real drivers are, in order, gender (mainly men), age (mainly young), wealth (mainly poor) and level of education (usually low). He then puts nationality last, and finds it has an impact only sometimes. It is not hard to argue there is false causality here too. Poverty and poor education are often symptoms of something else. Most of those at risk of expulsion in Switzerland have no residence permits (see below), a big barrier to finding work, making poverty almost automatic. And men could be more inclined than women to commit burglary because of cultural norms that place more pressure on them to generate income.

Expulsion numbers

These numbers are provided by cantons and are not easy to compile for the whole country, however a report by the Tages Anzeiger, shows that 670 convicted criminals were deported in 2012. Numbers for 2004 (350), 2008 (615) and 2009 (750) were also quoted.

© Photographerlondon | Dreamstime.com

© Photographerlondon | Dreamstime.com

The Swiss Statistics Office took national conviction figures for 2014 and estimated the numbers that would be deported under the recent March 2015 laws, and under the proposed initiative. Under the current rules 3,863 qualify for expulsion. Under the 28 February 2016 proposal, 10,210 would be expelled. Under both scenarios the vast majority are individuals with no residence permits. Of the 3,863 qualifying under the recently approved laws, 2,355 (61%) were described as having no permit or unconfirmed status. Under the proposed rules 6,750 (66%) of those deported would fall into this camp.

The Swiss government rejects the latest initiative

In 2010 voters were asked: “Do you accept the popular initiative for the deportation of foreign criminals?”. This time they are being asked:”Do you accept the popular initiative for the effective deportation of foreign criminals?”.

As they did in 2010, both the cabinet and parliament advise voters to reject the latest initiative. The National Council (cabinet and parliament together) voted 140 votes against 57, with no abstentions, to reject the initiative, while the Council of States voted 38 votes against 6, with no abstentions to reject it.

The government says the initiative undermines parliament’s role as lawmaker. Putting the proposed text in the constitution removes parliamentary power to decide on the rules. They also say it reduces the power of the courts and conflicts with the principal of proportionality enshrined in the Swiss constitution.

Swiss-parliament-in-Bern

Swiss-parliament-in-Bern

Some opponents argue that the initiative threatens the separation of powers. Separation of powers ensures that distinct bodies of people are involved in the execution of law making, law application and executive leadership. The initiative could remove judicial wiggle room but it will not allow parliamentarians to simultaneously act as judges or vice versa. Nor will it interfere with the courts’ ability to decide whether someone is guilty of a crime or not. Instead the government is worried that popular votes are increasingly being used to bypass parliament and other institutions that have traditionally governed the country.

Polls suggest it could go either way

A recent poll published in 20 Minutes puts “Yes” voters in the lead on 51%, “No” voters at 48% and those undecided at 1%. These results show a marked shift from a poll taken in early January, which showed 61% planned to vote “Yes” and 36% “No”.

© Bizoon | Dreamstime.com

© Bizoon | Dreamstime.com

According to political analyst Thomas Milic, the slide in the number of “Yes” votes polled, is due to the intensive campaign that has been run by those opposing the vote. He says ” the PLR has never been more opposed to a vote.” He then notes that the opposition should not rejoice too soon, “It’s going to be very tight.”

Update: this initiative was rejected by 58.2% of Swiss voters.

More on this:
Swiss government vote information (in French)  – Take a 5 minute French test now
Recent poll results in 20 Minutes (in French)
Swiss prison statistics (in English)
How to explain the over representation of foreign criminals – by André Kuhn (in French)
28 November 2010 vote results (in French)

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