Certainly: Rudolf Strahm rejects SVP self-determination – like me. But in his last column on DerBund.ch/Newsnet he packs in his arguments a criticism of the Federal Court, which I can not stand as a former federal judge. It's full of mistakes.
Strahm accuses the Second Public Service Division of the Federal Court of having fundamentally changed the proven practice of the Federal Court in a politically unilateral composition. Thus, the SVP was triggered to launch the initiative of self-determination. The case is different.
In October 2012, two years after the adoption of the Deportation Initiative, the Federal Supreme Court had to evaluate three cases of deportation. On the basis of the initiative, the speaker, the main member of the department, requested the automatic identification of the three delinquent aliens, that is, without examining the proportionality of that measure. If the department had followed the request, it would have deviated from previous practice.
There can be no doubt about a change of practice, as Strahm says.
For most of the court, however, it was clear that automatic expulsion would be inconsistent with the Federal Constitution or the European Convention on Human Rights (ECHR). Both decrees require examination of proportionality for serious violations of fundamental rights – in this case, the right to private and family life.
In two cases, the Federal Court considered the expulsion as proportional and dismissed the complaints. The third case concerned a Macedonian who had been sentenced to a conditional sentence. Here the court said that his complaint was good and canceled the expulsion. The reason: routing would have been disproportionate.
If the court had followed the president's provocative proposal and had expelled the foreigners without examining proportionality, it would have violated the ECHR and the Federal Constitution. There can be no doubt about a change of practice, as Strahm says. On the contrary. The situation is different with the case of a residence permit assessed by the Federal Court in 2015. In this respect, one can not speak of a change in practice.
After all, Strahm's assertion of a politically unilateral composition of the court is incomprehensible, indeed frankly adventurous. On both occasions, the six-member division decided on the cast of five men: two judges belong to the SVP, one to the SP, one to the CVP, one to the Greens and one to GLP in 2015.
The accusation that the Federal Supreme Court, by negligence, triggered the self-determination initiative is therefore void.
Niccolò Raselli was a federal judge from 1995 to 2012. He belongs to SP. (Editors Tamedia)
Created: 13/11/2018, 21:13 clock