FECL 19 (October 1993):

PREVENTIVE INTERNMENT OF "CRIMINAL" ASYLUM SEEKERS

A debate focusing on the involvment of asylum seekers in drug related crime has become public issue number one in Switzerland. Leading tabloids are fueling the debate with stories on drug dealing asylum seekers. Politicians from various parties are pressing for the introduction of legislation permitting for the immediate deportation or, alternatively, the preventive internment of crime suspected asylum seekers. Such legislation would however violate constitutional guarantees and international law.

So far, the Federal Office of Refugees (and not the judiciary) orders the internments, based on provisions in the law on entry and stay of foreigners (ANAG) and the Asylum law. The provisions provide for a temporary admission, eventually by internment, if and when a deportation measure cannot be carried out. Internment is, however only permitted, when the asylum seeker can be reproached with posing a serious threat to public order. On this ground, more than 30 asylum seekers and other foreigners sentenced for repeated dealing with small amounts of drugs have already been interned since autumn 1992. Furthermore, applications of delinquents and "dissocial" asylum seekers are subject to accelerated and summary consideration.

In the opinion of growing circles who view "false refugees" as the main root of Switzerland's increasing problem with drug abuse, this is not enough.

The call for a clamp-down on asylum seekers is most outspoken in Zurich, where, until now, all efforts of the authorities to bring the the city's notorious "drug scene" under control have lamentably failed. Right-wing groups soon made use of the situation in campaigning against foreigners and, in particular, asylum seekers. Already in 1991, a "neighbourhood action group" in a district of Zurich particularly exposed to drug delinquency published a half-page advertisment in the city's leading daily. Zurich, it said, had become a "super-market for drugs" supplied by "gangs armed with knifes, brass knuckles and guns, from Yugoslavia(cocaine), Lebanon (heroine), and Turkey (both)" and: "Some of these people have applied for asylum in our country".

A Working Group "Asylum" formed by the parties represented in Switzerland's longstanding federal coalition-government soon took up the message. In its final report (February 1992) it says: "Delinquent asylum seekers must be centrally accomodated pending legal enforcment of their sentence and the final outcome of their asylum and foreigner police procedures. Their asylum applications shall be processed with first priority." Thus, the alleged link between asylum seekers and drug delinquency was officialised.

Soon, some politicians, bowing to grass-rout pressure and a full-scale campaign led by the tabloids, went even further. In blatant disregard of the principle of presumed innocence, the head of the Zurich police, a Social Democrat, demanded that asylum seekers be interned "already in presence of the slightest suspicion".

So far, the police chief and other hardliners have met some resistance both from magistrates and the Federal Government. A Zurich public prosecutor reminded that the question was about "people against whom the police cannot prove anything, or at least any delict of importance". In a press documentation, The Federal Minister of Justice and Police, Arnold Koller, underlines that some of the demands for immediate deportation or internment of "undesirable" aliens are incompatible with constitutional guarantees and international law.

The guarantee of equal treatment, for instance, comprehends the right of appeal, the interdiction arbitrariness, etc., with regard to both Swiss nationals and foreigners. Unequal treatment of foreigners is admissible only so far, as they have no right of stay in Switzerland.

Article 33 of the Geneva refugee Convention and article 3 of the European Convention on Human Rights prohibit the deportation of a refugee or foreigner to a state, where he risks torture or inhuman or degrading treatment. The principle of "non-refoulement" is binding for Switzerland even if the country cancelled the conventions concerned, as, according to the jurisdiction of the Swiss federal Court, it has already become international common law.

However, "non-refoulement" cannot be pleaded, if there are serious reasons to believe that a person endangers the security of the country or must be considered as dangerous to the public after having been finally sentenced for a particularly heavy crime.

Thus, every foreigner has a right to have his claim of persecution considered in an asylum procedure and to appeal against a negative decision, irrespective of any delictuous or socially deviant behaviour. Only in case of heavy crime does the principle of non-refoulement not apply. Yet, even in such cases, the delinquents concerned can not always be deported, as no country is prepared to take back undocumented persons.

The Federal Minister of Justice and Police therefore stresses that "a solution to the problem" (of delictuous asylum seekers) must be found in the first place in the framework of penal prosecution and execution of sentences in the cantons (federal states) and points at the lack of personal resources and of room in detention centres. He further underlines that the practice of priority and summary procedures for applications from delictuous asylum seekers has already proven very effective.

In June 1993, the government set up a committee of experts which examined if, when, and how liberty privative measures could be imposed on delictuous asylum seekers.

Among other coercitive measures, the committee proposes new regulations to be included in foreigner and asylum legislation, providing for extended use of detention measures pending deportation.

The committee has drafted a legal framework that includes a so-called "preparatory detention" (up to 3 months) pending the asylum procedure. It could be ordered in case of threat to public security and order, e.g. after repeated arrests or condemnations. After an asylum decison by the first instance, a genuine and prolongable "detention pending deportation" would take the place of the "preparatory detention", on condition again, that there is a danger for public security and that there is reason to believe that the foreigner concerned will elude a deportation measure.

With the legal construction proposed by the committee, even foreigners not guilty according to the law, or not sentenced to imprisonment, could be detained for many months without any formal violation of constitutional guarantees or international law.

By submitting the committee's proposals to the parliament under "accelerated regular legislative procedure" rules, the Minister of Justice and Police hopes that the new regulations on internment could enter into force as early as 1 July, 1993.

N.B.

 

Sources: "Die Schweiz interniert - und keiner schaut hin", article in "Fluchtseiten" No.27, June 1993; Press documentation presented by the Federal Department of Police and Justice at a press conference held by Minister A. Koller in Bern, 3.9.1993 (in German).