The European Commission said today (29 November) it will carefully study the implications of Sunday's referendum in Switzerland deciding that foreigners should be automatically expelled if convicted of crimes ranging from murder to working on the black.
Switzerland is surrounded by the European Union. According to the European Commission website, over 900,000 EU citizens live and work in Switzerland, and many more cross its borders or travel through the country on a regular basis.
The accession of Switzerland to the Economic Free Trade Association (EFTA) in 1960 and the signing of the Free Trade Agreement of 1972 between the European Economic Community (EEC) and Switzerland form the basis of its EU relations.
Following the rejection of EEA accession in a 1992 referendum, negotiations between the two sides continued. The referendum was a major defeat for the government and marked the rise of the Swiss People's Party (SVP), a right-wing political force headed by Christoph Blocher.
In addition to the Free Trade Agreement of 1972, an agreement on insurance (1989), bilateral agreements (1999) and Bilateral II (2004), as well as more than 100 technical agreements, govern relations between Switzerland and the EU.
Last year, Switzerland was on the brink of a major crisis in its relations with the EU due to a referendum on opening up the country's labour market to Bulgarian and Romanian workers.
Switzerland last year backed a ban on building new minarets in a referendum. Federal government officials had opposed the notion. The outcome of the Swiss vote was welcomed by right-wing parties across Europe, with some calling for similar votes to be held in their countries.
In February, a visa spat between Switzerland and Libya affected the EU, as Berne has been a member of the Schengen border free zone since 2008.
53% of Swiss voters backed a proposal to automatically deport foreigners convicted of crimes including rape or drugs trafficking.
The deportation of foreign criminals had until now been treated on a case-by-case basis.
Under the terms set by the referendum, the Swiss government would automatically be required to expel foreigners convicted of serious crimes after they have completed a prison sentence of a full year. Such criminals would also be prevented from returning to the country for up to twenty years.
Referenda are binding under Swiss law.
Foreign residents make up over 20% of Switzerland's population and include second-generation immigrants. Under Swiss law, second-generation migrants do not qualify for citizenship unless they have lived in the country for at least twelve years.
In accordance with the referendum results, a committee will now start drawing up a draft law that will be submitted to parliament for a vote. The Swiss government said it would do the necessary to ensure that the draft law "minimises" any conflict with the country's international obligations.
The proposal, put forward by the right-wing Swiss People's Party (SVP), is seen as the latest sign of increasing hostility towards immigrants in the Alpine nation. The SVP said foreigners were responsible for nearly 60% of murders in the country last year.
The same party drummed up support last year for a ban on building of minarets in the country, drawing widespread condemnation (see 'Background'). It also notoriously displayed a picture of a group of white sheep kicking a black sheep off the Swiss flag during the 2007 federal elections.
In contrast, Swiss citizens living abroad largely voted against the deportation proposal, preferring instead a watered-down version of the law proposed by the Swiss parliament.
An international conflict?
As a member of the Schengen area, Switzerland is obliged to allow citizens of other Schengen members to live, work and study in the country. Switzerland could be accused of infringing the free movement of persons principle, a fundamental right guaranteed to EU citizens.
The new legislation could also be considered to be in breach the UN Convention Against Torture, signed by Switzerland, which requires signatories to refrain from deporting people to countries that practice torture.
As nearly half of Switzerland's 1.6 million residents come from non-European countries, there is a risk that the country could deport migrants to their countries of origin, where torture may occur.
A spokesperson for the European Commission said Brussels would carefully study how the results of the Swiss referendum would be translated into legislation and expressed hope that Berne would continue to respect its international obligations.
At a regular press briefing on Monday, Commission spokespeople were pressed to comment on declarations by Commission President José Manuel Barroso, who expressed concern about the rise of xenophobia in Europe.
Barroso, speaking on Monday on French radio station Europe 1, did not mention any country in particular but confirmed "a general fear precisely in this sense," a spokesperson said.
"There is today in Europe a push of populism and of extremes which is very serious and worries me. I see societies with a long tradition of openness and democracy mounting a nationalist, chauvinistic, xenophobic push, sometimes of very, very aggressive populism," said Barroso, speaking in French.
The International Commission of Jurists (ICJ) expressed on 29 November its concern over the approval by referendum of a popular initiative on expelling foreigners.
The ICJ warned that the approved initiative, which extends to persons convicted of a range of offences from murder to "abuse of social benefits," could lead to the transfer of individuals to face the death penalty or torture in other countries, in violation of the constitutional and international prohibition of non-refoulement.
"The initiative could have dire consequences for Switzerland's compliance with its international human rights obligations," said Massimo Frigo, legal advisor for the ICJ Europe Programme.
"There is a real risk that certain persons subject to expulsion could face the death penalty, torture, cruel, inhuman or degrading treatment, denial of fair trial or arbitrary detention. Automatic expulsion, without a determination as to [...] risk, contravenes the European Convention of Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture. These treaties are all binding on Switzerland."
The UN Committee against Torture had expressed similar concerns in its concluding observations on Switzerland last May.
"This new legal regime also entails potential breaches of the expellee's right to respect for family life and to the best interest of his or her children, as their needs will not be balanced with the seriousness of the crime committed when deciding on the expulsion," explained the ICJ's Frigo.
"This consequence runs counter to Switzerland's international obligations under the European Convention, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child," the ICJ stated.
The European Network Against Racism (ENAR) said that the referendum was the result of a "xenophobic and discriminatory campaign launched by the populist Swiss People's Party".
"This rhetoric and the expulsions risk reinforcing prejudice and discriminatory perceptions against immigrants and more generally against Swiss ethnic minority citizens perceived as foreigners," it warned.
Describing the measures proposed by the SVP as a "double penalty" leading to the creation of "second-class categories of persons," ENAR said that this was "a clear breach of the fundamental human rights principle of equality before the law. In addition, it is not clear where the limit will be set: 1st, 2nd, 3rd or even 4th generation immigrants?".
"This new referendum is obviously part of a deliberate policy by the Swiss People's Party of moving forward step by step by referendum, instead of pushing through a series of reactionary laws which would provoke opposition," it argued.
The referendum is "a reflection of tendencies happening elsewhere in Europe as well, following decades of populist discourse linking immigration and criminality," said ENAR President Mohammed Aziz.
"We need to ring alarm bells and reverse the trend towards extremist rhetoric in Switzerland and across Europe. It is time to recognise the daily contribution made by migrants to Europe's economic, social, cultural and political life, as well as the importance of equality and diversity to a vibrant society and economy," he added.