Urteil des Bundesgerichts vom 12. Oktober 2012 in Sachen X. gegen Migrationsamt des Kantons Thurgau (BGE 139 I 16)
Background
While under item 3.2 the question of the direct applicability of an international legal norm had to be decided in the context of a possible conflict between a federal law adopted by the Federal Assembly and an international treaty approved by the Federal Assembly, the Federal Supreme Court decision discussed here shows a different constellation: a conflict between a constitutional provision inserted by way of popular initiative, other constitutional provisions and multiple international human rights-related agreements approved by the Federal Assembly. Parliament had no possibility of influencing the text of the constitutional amendment prior to the referendum. The following procedure is particular regarding popular initiatives to amend the Federal Constitution: Parliament is compelled to declare a validly constituted popular initiative wholly or partially invalid if it violates a non- derogable international norm of jus cogens. If non-prescriptive international law is violated the initiative must be submitted for referendum vote unchanged, although Parliament can still recommend the initiative be passed or rejected or submit a counter-proposal on the same matter. If the popular initiative passes, the Constitution is amended or supplemented. The situation is different in the case of federal laws proposed. Already in its draft bills sent to Parliament the Federal Council discusses the effects of the act regarding fundamental rights, compatibility with higher-order law. The relationship to European law and to international law is addressed in the report to Parliament and in parliamentary deliberations. There is thus a guarantee that Parliament too will address the issue, endeavouring to avoid an act conflicting with fundamental rights and international law and constitutional provisions. The possibility of exerting influence prior to the referendum is unavailable with popular initiatives to amend the constitution. With the ruling summarized below, the Federal Supreme Court enables Parliament to ensure “practical concordance” in the follow-up to the referendum to ensure that there is no conflict and to clarify the relationship with other constitutional provisions. This constellation can only arise in connection with successful popular initiatives to amend the Federal Constitution. The constitutional courts of other countries do not face this problem because they do not have this instrument of direct democracy. Following the Federal Supreme Court ruling, the legislature obliged the criminal courts to consider proportionality in cases of expulsion from the country in certain cases of criminal conviction instead of automatic expulsion applying.
Conflicts between cantonal constitutional law amended on the basis of a popular initiative and fundamental rights under the Federal Constitution and international law are cleanly resolved by the constitutional tenet that federal law has primacy over cantonal law, because it includes international law binding Switzerland is understood to be federal law. Action can be brought before the Federal Supreme Court arguing violation of that tenet.
Summary
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. Under the Federal Act on Foreign Nationals and Integration, a settlement permit may be revoked under certain conditions which in the case under review were fulfilled. However, like any state action, the measure has to comply with the principle of proportionality. The Federal Supreme Court noted in its opinion that several elements have to be taken into account which correspond to the elements developed by the ECtHR on the admissibility of measures terminating residence in view of the protections of private and family life. In the case under review, the Federal Supreme Court deemed expulsion to be disproportionate, in view of these elements. However, the people and the cantons had agreed to a popular initiative to amend the Federal Constitution to the effect that foreigners would automatically lose their right of residence if convicted for drug trafficking, among other things (known as the ‘deportation initiative’). Yet, the Federal Supreme Court still did not support the expulsion on grounds that the constitution is not unitary but rather a structure which has evolved over a certain period, consisting of different principles, guarantees and mandates that are not always consciously connected or coordinated. Where constitutional lawmakers do not expressly recognize that an individual provision has precedence, it was argued, all provisions must be deemed principally equivalent in their interpretation. The constitution is to be interpreted with regard to structural principles, conformity with international law and a minimal unity, which is why individual provisions could not be applied exclusively in the manner understood by the initiators of a popular initiative. The more recent provision does not take precedent without consideration. In other words, the Constitution is to be interpreted so as to create practical concordance between the various existing constitutional and fundamental rights in force. Whether constitutional provisions are sufficiently defined to be directly applicable without implementing legislation and direct effect for individuals is to be determined by way of interpretation, taking constitutional particularities into account. In the case of the new deportation norm in the Federal Constitution, the Federal Supreme Court took the view that, in view of the principle of legality and the tension between the norm and fundamental values recognized by Switzerland in its constitutional law (principles of the rule of law, respect for constitutional values) and its obligations under international law (ECHR, Agreement on the Free Movement of Persons between Switzerland and the EU, Convention on the Rights of the Child), it was an open-ended norm in terms of how it may be evaluated, requiring specification by the legislature. Thus it was ruled that the norm was not directly applicable.