By Richard Johnson
Council of Europe Commissioner for Human Rights, Thomas Hammarberg, has expressed concern about rising racism and xenophobia in Switzerland, and called for an overhaul of the Swiss criminal law to do away with impunity for perpetrators of racism.
“Manifestations of racism and xenophobia appear to be on the rise in Switzerland. Disturbing political campaigns with aggressive, insulting slogans against foreigners are tendencies of great concern,” says Hammarberg on a letter addressed to Federal Councillor Didier Burkhalter, Head of the Swiss Federal Department of Foreign Affairs.
The Commissioner says, during his visit to Switzerland from February 20 to 23, 2012, he had witnessed himself “a disturbing xenophobic manifestation, widely reported in the press, consisting of aggressive, insulting slogans on the website of a local office belonging to a major political party, which targeted migrants coming from certain South East European countries”.
Hammarberg adds in the letter of March 12: “While recognising the value and importance of an open political debate, it has to be made clear that freedom of expression is not absolute: hate speech violating the rights of others is unacceptable. The Swiss criminal law needs to be overhauled in order to put an end to impunity for xenophobic and racist public discourse.”
Freedom of expression, as enshrined notably in Article 10 of the European Convention on Human Rights, is not absolute and has to be exercised in a responsible manner. It can and at times must be restricted by the authorities in order to safeguard the human rights and fundamental freedoms of others, especially socially vulnerable persons targeted by acts of incitement and spread of hatred or intolerance, adds the letter.
Commissioner Hammarberg reminds national political leaderships that they bear a significant responsibility in this context, being bound to effectively safeguard the rule of law, human rights and pluralism in a democratic society.
He considers it of the utmost importance that the authorities at federal, cantonal and municipal level adopt “a proactive, vigorous approach towards all manifestations of racism and intolerance, condemn them immediately and publicly,” and adopt all possible measures in order to effectively safeguard the fundamental values of Swiss society and the European human rights standards to which Switzerland has subscribed.
Commissioner Hammarberg adds: “. . . To fully meet European and international human rights standards, Switzerland needs to strengthen its anti-discrimination legislation. A comprehensive law against discrimination would help overcome the persisting deficiencies, not only when it comes to the rights of non-nationals but also for the protection and promotion of gender equality, the rights of disabled persons and of lesbian, gay, bisexual and transgender persons.”
The Swiss Criminal Code already bans such xenophobic activities. Article 261 prohibits public incitement of hatred or discrimination against a person or group of persons because of their race, ethnic group or religion, the letter points out.
Around 84 per cent of all cases judged in court on their merits result in convictions, whilst half of the cases presented are dismissed for not being relevant to racial discrimination, as this is defined in the Article.
Notably, political discourse of xenophobic and racist nature is generally not interpreted as falling under Article 261 and therefore not criminally sanctioned by the courts. For example, the public display of racist symbols or recruitment of members to racist groups is not criminally sanctioned. Furthermore, the existing provision in the Criminal Code is not coupled with corresponding ones in civil and administrative law and does not cover all fields of public life.
All these factors lead to a degree of impunity when it comes to combating racist and xenophobic acts and call for the adoption of measures in order to amend and strengthen the law and practice in this field. “To this end, the authorities may usefully draw upon General Policy Recommendation No. 7 of the European Commission against Racism and Intolerance on national legislation to combat racism and racial discrimination (2002).”
The Commissioner has also noted that there are complaints concerning police action or use of force affecting individuals who are visibly identifiable as non-Europeans. This problem has been recognised by the authorities and also the police itself and measures have been taken to prevent police misconduct, such as the amendments to the Federal Code of Criminal Procedure in 2010 which replaced the 26 cantonal codes and introduced standardised procedures.
Nevertheless, Hammarberg notes, reports received by the Commissioner raised questions as to the promptness and impartiality of the existing police complaints system. The Commissioner recalls his Opinion concerning independent and effective determination of complaints against the police (CommDH 2009(4)), on which the authorities may draw, noting at the same time that certain cantons have set up independent police complaint mechanisms which may be considered to be examples of good practice.
During his visit to Switzerland, the Commissioner also discussed the practice of ‘popular initiatives’, a civil right in the Federal Constitution, through which by a collection of 100 000 citizens’ signatures an amendment to the Constitution can be proposed and put to vote.
Certain popular initiatives, such as those concerning the ban of minarets and the automatic expulsion of migrants having committed a certain crime, raise serious issues of compatibility with human rights standards – notably those of the European Convention on Human Rights, Hammarbeg says in his letter.
The Commissioner also voices concerns about a recent decision to limit migrants’ right to family unity and about further proposals to make such family reunification in Switzerland even more difficult. The principle of respect for the family life of migrants, as reflected in the European Convention on Human Rights and the Court’s case law, has for decades been part of the Swiss integration policies. It would be unfortunate if this positive tradition now were overturned, noted the Commissioner.
On the other hand, he welcomes the intention by the authorities to shorten the unduly lengthy asylum procedures, and introduce a comprehensive system of legal aid in order to safeguard fairness in asylum procedures.
At the same time, the authorities were urged to make sure that no asylum seekers are transferred to Greece by virtue of the ‘Dublin Regulation’, in compliance with the European Court of Human Rights’ case law that has made clear that asylum seeking and protection in Greece is currently impossible.
Commissioner Hammarberg underlines the need for independent and effective mechanisms of supervision, redress and prevention of human rights violations at all levels of the federal system.
“Switzerland’s human rights protection system would greatly benefit from the establishment of Ombudspersons in all cantons, complemented by a Federal Ombudsperson with a coordinative function and a long awaited National Human Rights Institution,” states the Commissioner. Good practices to be drawn upon, such as the city ombudspersons of Zurich and Basel, already exist.