Background
see 4.1
Summary
Primacy of the ECHR over the Federal Constitution: ruling of 12 October 2012 in the case X. v Migration Office of the Canton of Thurgau (BGE 139 I 16)
The Federal Supreme Court had to decide whether a foreigner convicted of drug trafficking who had come to Switzerland as a child could be expelled from Switzerland. According to the Federal Act on Foreign Nationals and Integration, a settlement permit may be revoked under certain conditions which were fulfilled in the case under assessment. However, like any state action, the measure must respect the principle of proportionality. According to Federal Supreme Court rulings, several elements must be taken into account in that respect. These correspond to the elements developed by the ECtHR on the admissibility of measures terminating residence from the standpoint of the protection of private and family life. In the case under review, the Federal Supreme Court considered expulsion to be disproportionate in view of these elements. The problem, however, was that a majority of the Swiss people and the Cantons had agreed to a popular initiative to amend the Federal Constitution, according to which foreigners lose their right of residence if they have been convicted, among other things, of drug trafficking. The Federal Supreme Court nevertheless refrained from the expulsion. In view of the tension between this particular norm and fundamental values recognized by Switzerland under constitutional and international law, it was unclear how it should be read. The Court thus denied direct effect and called upon the legislature to implement the constitutional norm. A potential conflict with international law is created particularly by the fact that automatic expulsion precludes a proportionality review as required under Article 8 ECHR and UN Covenant II and circumvents the requirements of individual case review and of the requirement of the existence of a clear and present threat to public safety and order under the Agreement on the Free Movement of Persons between Switzerland and the EU as a condition of expulsion, as well as the issue of the best interests of the child under the the Convention on the Rights of the Child. The Court held that even if the constitutional norm were directly applicable, expulsion could not be upheld. Having consistently upheld the primacy of international law over older and more recent federal laws in its rulings, the Federal Supreme Court now for the first time had to rule on the relationship between international law and a subsequently enacted constitutional provision. The issue is controversial in legal literature. The Federal Supreme Court ruled categorically that, with the ECHR and the possibility of individual complaints, Switzerland has not only taken over the conventional substantive guarantees but also their enforcement mechanisms, entailing the central obligation to implement the necessary specific and general measures following a ECtHR ruling to prevent similar future violations of the Convention, including by amending its national law. The Federal Supreme Court is also bound by this in relation to recently introduced constitutional amendments. When deciding on an expulsion order under laws governing foreign nationals, it is imperative to weigh up the private interest of the person concerned to remain in Switzerland versus the public interest in the expulsion of said person. The constitutional provision, taken in its own, did not allow for this process of weighing and balance the interests at stake. It thus cannot be applied in isolation.
