On 28 February 2016, Swiss voters decided on the SVP initiative «for the effective expulsion of foreign criminals (implementation initiative)». The text sought to write a detailed, directly applicable catalogue of automatic expulsions of convicted foreigners into the transitional provisions of the Constitution, sharply limiting judges' discretion.
The initiative followed the 2010 acceptance of the «expulsion of criminal foreigners» initiative. Deeming Parliament's implementation too soft, the SVP launched this second text even though the legal deadline had not expired and the chambers were still at work. In 2015 Parliament nonetheless adopted its implementing law; with no referendum called, it entered into force independently of the ballot.
The campaign triggered mobilisation on an unprecedented scale. The Operation Libero movement, civil society, business circles, the churches, legal scholars and almost every party denounced an attack on the rule of law, proportionality, the separation of powers and the free movement of persons agreed with the EU.
Voters rejected the initiative with 58.9 % against and 20 cantons. Turnout reached 63.73 % — the highest since the 1992 EEA vote. Only six central-Swiss cantons and Ticino accepted it.
▲ Cantons that accepted Appenzell Inner Rhodes, Nidwalden, Obwalden, Schwyz, Ticino, Uri (6 cantons) | ▼ Cantons that rejected Aargau, Appenzell Outer Rhodes, Bern, Basel-Landschaft, Basel-Stadt, Fribourg, Geneva, Glarus, Graubünden, Jura, Lucerne, Neuchâtel, St. Gallen, Schaffhausen, Solothurn, Thurgau, Vaud, Valais, Zug, Zurich (20 cantons) |
Actors and personalities
▲ Yes camp • SVP (party behind the initiative) • AUNS (Campaign for an Independent and Neutral Switzerland) • Lega, MCG, EDU (smaller parties in favour) | ▼ No camp • Operation Libero (citizens' movement, propelled by this campaign (Flavia Kleiner)) • Federal Council (Simonetta Sommaruga, head of the FDJP) • SP, FDP, Christian Democrats, Greens, GLP, BDP (cross-party opposition) • economiesuisse, SGV (business circles) • Churches, jurists, artists (broad civil-society front) |
Arguments and verdicts
▲ Arguments FOR (Yes camp) Parliament's implementation is too soft: criminals will not be expelled « Without our initiative, judges will go on failing to expel criminal foreigners. » — SVP initiative committee, 2016 campaign ✗~ Partly refuted Parliament's implementing law (art. 66a ff. of the Criminal Code) entered into force on 1 October 2016 and has since led to several thousand criminal expulsions ordered. The expulsion regime does work, without the initiative having been necessary. Source: art. 66a Criminal Code (in force since 01.10.2016); criminal-expulsion statistics, FSO. The people voted for expulsion in 2010: it must apply with no loophole « The 2010 popular will must be implemented without a clause that hollows it out. » — SVP, 2016 campaign ✓~ Partly confirmed The 2010 will was indeed implemented through art. 66a of the Criminal Code, with real expulsions. But the demand for automatism «with no loophole» did not prevail: the law retains a hardship clause leaving the judge a margin of appreciation — precisely what the initiative sought to abolish. Source: implementing law of art. 121 para. 3-6 Constitution; art. 66a para. 2 Criminal Code (hardship clause). | ▼ Arguments AGAINST (No camp) The law already adopted is enough: the initiative is unnecessary « Parliament has done its job; this initiative adds nothing and bypasses the institutions. » — Federal Council and broad No front, 2016 ✓ Argument confirmed The implementing law adopted in 2015 entered into force in October 2016 and applies the expulsion of criminal foreigners for a catalogue of offences. The substantive goal was thus achieved without the initiative, confirming it was not needed. Source: entry into force of art. 66a Criminal Code (01.10.2016). Automatism without proportionality violates the rule of law and the ECHR « Stripping the judge of all discretion betrays proportionality and our international commitments. » — Legal circles and Operation Libero, 2016 ✓~ Partly confirmed The Federal Court's later case law on criminal expulsion has repeatedly stressed proportionality and respect for Article 8 ECHR (private and family life). The proportionality principle the initiative sought to remove proved central to applying the law. Source: Federal Court case law on art. 66a Criminal Code and Art. 8 ECHR. |
Affiches de campagne (23)
Factual record
1 Confirmed | 2 Partly confirmed | 1 Partly refuted | 0 Refuted |
| ✓ | Criminal foreigners are indeed expelled Rejecting the initiative did not prevent the expulsion of criminal foreigners: art. 66a of the Criminal Code, in force since October 2016, has led to several thousand criminal expulsions. The substantive goal was achieved by the parliamentary route. Source: art. 66a Criminal Code; FSO criminal-expulsion statistics. |
| ~ | The hardship clause: a valve, not a floodgate The hardship clause the SVP feared did not hollow out the law. It is applied only in a minority of cases and its use has been strictly framed by the Federal Court. Expulsion remains the rule for serious offences. Source: Federal Court case law on art. 66a para. 2 Criminal Code. |
| ✓ | The rule of law preserved By rejecting the initiative, the people avoided writing into the Constitution an automatism excluding judicial discretion. Proportionality, reaffirmed by case law, remained guaranteed without harming the effectiveness of expulsions. Source: Federal Constitution; Federal Court case law. |
28 February 2016 remains a turning point: an SVP initiative on a supposedly winning theme — the expulsion of criminal foreigners — is swept away by nearly 59 % of the vote, at the end of civic mobilisation unmatched in a quarter-century. It is also the political birth of Operation Libero.
The vote's paradox fits in a sentence: the initiative was rejected, but its substantive goal was already achieved. The implementing law Parliament adopted in 2015 came into force in October 2016; since then, the criminal expulsion of convicted foreigners has been a reality counted in the thousands. The people did not refuse to expel criminals — they refused to do so by removing the judge.
What the SVP portrayed as a «loophole» — the hardship clause — proved a narrow valve, strictly framed by the Federal Court, not the gaping hole announced. Conversely, the No camp's fear of an automatism incompatible with proportionality and the ECHR found an echo in case law that never stopped invoking those requirements.
The 2016 vote thus illustrates a Swiss peculiarity: a rejection at the ballot box can coexist with the effective application of the measure debated. Criminal foreigners are expelled; the judge, however, was not shown the door.