Switzerland, law of asylum, amendment, Swiss Federal Constitution, Article 12

The right to aid in distress, according to Article 12 of the Swiss Federal Constitution, derives from the dignity of man, the right to live and personal freedom as a fundamental guarantee. It ensures means that are indispensable human needs, such as nutrition, clothing, shelter and essential medical supply to every person situated in Switzerland, as far as they are not able to maintain themselves.

The clause intended by the Council of States enables the cantonal authorities to either shorten or entirely withdraw the aid in distress. The cancellation of this right was supposed to establish a means of executing pressure upon non-cooperating asylum seekers. This clause can be seen as part of the effective economy measures from 2003, formulated in the so called “Entlastungsprogramm”, a program with specific measures to relieve the states’ econ-omy, which has been enacted on 1st April 2004. It provides that legally rejected asylum seek-ers can be excluded from social aid. As “illegally present people” they are instructed to leave Switzerland immediately by themselves. Until now, they still had the right to receive aid in distress, provided that they fulfilled the necessary preconditions. The amendments of the law of asylum though, not only tried to deprive asylum seekers of their right to aid in distress, but also generally cancelled social welfare benefits for all rejected asylum seekers. This regula-tion has been strongly criticised by the Swiss Refugee Council (SRC; Schweizerische Flücht-lingshilfe). Based on the experiences with the “Entlastungsprogramm” from 1st April 2004, the organisation argues that the affected persons have regularly been driven into misery and illegality, wherefore the criminality rates could be expected to rise. The cost-savings, as the official goal of these measures, was qualified as doubtful, too.

It is usually either legally forbidden or factually impossible for asylum seekers to look after themselves, so that they regularly find themselves in a state of necessity in real terms and therefore need to have the possibility to seek for and receive aid in distress. The withdrawal of this right as a mean of coercion therefore does not only breach the right to aid in distress according to Article 12 of the Swiss Federal Constitution but also human dignity (Article 7), possibly the protection against arbitrariness (Article 9) and the prohibition of inhuman and degrading treatment according to Article 3 of the European Convention on Human Rights.

Due to the clear legal situation, the Council of States and the Minister of Justice and Federal Counselor, Christoph Blocher, had to expect such a decision from the Swiss Federal Court. A legal expertise by Prof Jörg Paul Müller had qualified the clause as unconstitutional al-ready, before the Courts decision had been made. Further notable experts on international and constitutional law had clearly criticised other rules. Apparently the expertises were not considered thoroughly. The debates in parliament proceeded uncommonly fast. A serious verification of the constitutionality of the altered regulations was not possible due to the lack of time.

The amendment of the law of asylum appears in a rather strange light. Furthermore, the re-mark of Christoph Blocher, implicating that the Constitution, which expressly contains the right to aid in distress, can also be altered, suggests an alarming direction that the new law seems to be about to take. Together with the amendment of the law of asylum, fundamental questions have arisen and have put into question basic values. May the Parliament and the Government of Switzerland deal with the Swiss Constitution and with human rights in such a frivolous way? Are the proposed measures really necessary and useful for the budgetary policy or is this just an excuse for a restrictive asylum policy? Indeed, the ones who will suffer will be the asylum seekers. But additionally, Switzerland’s international reputation should be kept in mind. If Switzerland makes asylum seekers illegally pass the borders into its neighbouring countries, this practice contradicts the principle of state-cooperation and the objective of European harmonisation in particular. Hope remains that the discussions will not stop and that the criticisms will be considered in the remaining parliamentary consultations. Maybe, then the worst can still be prevented.

Mirina Grosz, Migrationsrecht.Net - German version a @  http://www.Migrationsrecht.Net
 
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