English Forum Switzerland

English Forum Switzerland (https://www.englishforum.ch/forum.php)
-   International affairs/politics (https://www.englishforum.ch/international-affairs-politics/)
-   -   EU human rights law under bilateral treaty [Moved] (https://www.englishforum.ch/international-affairs-politics/19918-eu-human-rights-law-under-bilateral-treaty-moved.html)

cynik 03.03.2008 16:21

EU human rights law under bilateral treaty [Moved]
 
OK, we all know that the visa situations for ALIENS has changed because of the bilateral treaty, but what is the status of the human rights upheld by the ECJ inside Switzerland?

Put another way, do Swiss courts follow the ECJ or do they interpret the treaty?

I am curious, because the bilateral treaty APPEARS to be based on EU law, or rather the treaty. All the information I can get says that the Swiss just said "OK, we will accept these laws". They didn't write their own law and say "This is how we interpret the laws".

As a consequence, did the Swiss cede authority on human rights law to the ECJ?

I know the short answer to that: a bilateral treaty can't cede authority without breaking the swiss constitution. AND YET.... I am curious. In practical terms, what could a Swiss court say if the swiss government were sued for failing to enforce the bilateral treaty ACCORDING TO THE UNDERSTANDING OF THE ECJ?

"No, we interpret it how we like?"

How could that work? I mean, it would invalidate the treaty, in practical terms. It would mean that individual cantons could "interpret" the treaty how they like. The ECJ wouldn't accept that, no way. They would argue that, if the EU states are bound to respect human rights under the treaty, so are the swiss. They would argue reciprocacy or bust. If there is no equivalence, there can be no treaty.

And my point here is that, as far as I can tell, the swiss fedral authorities signed this treaty with the intention to bind the cantons. If not, they ought to have not signed it. Just so, under swiss policy and regulations, the federal government left the interpretation of the treaty to the cantons.

This case is like the reverse of the "so lang" cases in germany, where the ECJ was denied supreme jurisdiction because it lacked any authority to apply human rights law. Here we have Switzerland agreeing to the free movement of people, and impliedly accepting the ECJ's jurisprudence on human rights law. At the same time, there is no authority in the swiss constitution for the feds to cede law making power away from Swiss government to the ECJ.

I am curious toknow what folks would think would be the verdict if a european sued the swiss government for not issuing a work permit to a spouse WITHOUT BEING ASKED. This is the case in the UK just now. The UK government cannot charge EU folks (or Swiss folks) for their residency cards. They can't even call it a "PERMIT", because the government has no power to deny fundamental human rights, and therefore no power to permit them or otherwise. That is the ECJ speaking, and the UK courts have upheld this logic of human rights.

Would the swiss courts do the same, or would they risk an awful press storm where they are accused of enjoying human rights for their own citizens in europe, but at the same time denying them to Europeans in Switzerland?

i think I have got to take this case, even though I would have advised anyone else that it is crazy to sue the swiss government in Switzerland.

But this is human rights, it is families, and it is the bilateral treaty. It is also the sort of case the Swiss might like to lose, to show the world they care about kids and human rights and all that happy clappy shit.

I wonder if I can spin that line? "This is the right case for you guys to lose. If you lose, we all win. I want 500,000 for my client, and that is a bargin for everyone. any less and the press will say you are not serious."

Mmm. Could work.:msnsarcastic:

Shorrick Mk2 03.03.2008 16:26

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by cynik (Post 182670)
I am curious toknow what folks would think would be the verdict if a european sued the swiss government for not issuing a work permit to a spouse WITHOUT BEING ASKED.

How would they know they have to issue one if they're not asked to do it?

cynik 03.03.2008 17:00

Re: EU human rights law under bilateral treaty
 
That's a good question. The UK have had to deal with this logic, and they did have some problems.

In short, the ECJ has said that folks who have the rights don't need to ask for a residency permit. They don't need one, they do not need to ask for one.

Now the UK still issues them when asked, because sometimes folks need proof of where they are resident (going on holiday to Russia, getting a loan, or whatever). BUT,... they can't penalize anyone who doesn't have one. They can keep records, for their own satisfaction, but they can't demand folks have a residency card.

Now if this logic of fundamental rights is held to apply in Switzerland, that totally puts the cat among the cantonal pigeons. Remember that the UK were hardly thrilled with this ECJ ruling. They had been charging EU folks £350 for a spouse visa. All that revenue was scrapped, and they had to wear it.

So, it all comes down to the legal question of whether Switzerland agreed to apply the human rights law as defined by the ECJ, or whether they reserved the right to interpret that law to fit their own constitution.

This is a weird one. I am pretty much totally for Swiss independence from the EU, and yet I find myself making a case against the Swiss law because of the bilateral treaty. I think the Swiss need to clarify who is interpreting their obligations under the treaty, because so far it looks as though the swiss feds have done a fairly half hearted job in defining their obligations. If they let the ECJ define the law......

cynik 03.03.2008 17:05

Re: EU human rights law under bilateral treaty
 
To explain further and try to answer your question a bit better, the law in the UK is now that folks who can prove their status as EU citizens exercising human rights cannot be denied these rights. So, UK immigration has been told that they must accept marriage certificates and other evidence of the existence of such rights AT THE AIRPORT. They can't dissallow such a lack of a residence card, and they are obliged to give folks time to gather evidence if they do not have such at the airport.

It is strange, but that is the EU law in action. Essentially the government must prove the suspect has no rights before they can act.

If these principles are upheld in Switzerland, you can imagine the reaction from the swiss natives. They will, in a very real sense, have less rights in their own country than EU workers.

That is currently the case in the UK.

miniMia 03.03.2008 17:27

Re: EU human rights law under bilateral treaty
 
I'm sorry, but I have no idea what you are asking.

What will the "natives" get all upset about? People being allowed in at the airport? Spoused following their family? No more cash for the issuance of a "permit"? Changing the name of "permit" to "visa"? What on earth is your question? How will Swiss "natives" have less rights than EU citizens?

I'm lost.

Shorrick Mk2 03.03.2008 17:31

Re: EU human rights law under bilateral treaty
 
If your point has anything to do with admission of spouses, you might know already that unlike the prescriptions of Article 3, the protection of the right to respect for private and family life is not absolute. Interferences can be justified in law provided that the interference is prescribed by law, in the pursuit of a legitimate aim and proportionate.

Even though there is a right to respect for family life this, in principle, does not extend to a right to respect for the choice of marital or family home. Where there is an alternative country in which the spouses/family can reside and there are no ‘insurmountable obstacles’ to relocation and settlement there, or where a person subject to immigration control could return to the country of origin and obtain entry clearance as a family member in the ordinary way without risk or excessive delay, declining residence in the UK may not amount to an interference with the right to respect for family life.

I don't quite know what to make of the rest of your plights.

cynik 03.03.2008 18:01

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by miniMia (Post 182709)
I'm sorry, but I have no idea what you are asking.

In short, what do you think the Swiss courts would decide about the ECJ interpreting the scope of human rights law? Would they accept the ECJ view, as the UK has done, or would they reject it?

Quote:

Originally Posted by miniMia (Post 182709)
What will the "natives" get all upset about? People being allowed in at the airport?

No, the erosion of swiss law and the establishment of a superior body of law made by the ECJ. See, if the Swiss have agreed to abide by the ECJ's interpretation, the ECJ may decide to change swiss law, particularly the role of the cantons in issuing permits.

Quote:

Originally Posted by miniMia (Post 182709)
Spoused following their family?

Nah, Spouses have no rights, or rather they have no standing. But just so, you can't deny a person their spouse without ruining their family, so an action would still be available for the EU citizen if their spouse was denied without good cause. Now the important point is the burden of proof. With permits the government can sit back and demand proof of the right. With fundamental rights (family, freedom from torture etc) the government cannot deny your rights because it wanted paperwork.

Quote:

Originally Posted by miniMia (Post 182709)
No more cash for the issuance of a "permit"?

Not so much the cash, but rather the POWER to demand the cash. Governments hate losing the power to push little folks around.

Quote:

Originally Posted by miniMia (Post 182709)
Changing the name of "permit" to "visa"?

No, changing the substance of a permission to a fundamental right. If you can be made to play games with paper, it is a permission.

A government can no more issue permission to exercise basic human rights than they can take away that permission. If a government can take away fundamental rights, they are not fundamental (legally speaking)

Quote:

Originally Posted by miniMia (Post 182709)
What on earth is your question?

How do the swiss courts consider human rights?

Quote:

Originally Posted by miniMia (Post 182709)
How will Swiss "natives" have less rights than EU citizens?

Well, this is difficult, and the law doesn't make much sense, but I will explain as best I can.

When the EU created its bag of "fundamental human rights", it did so in response to the german constitutional court rejecting the authority of the ECJ. The germans said "you can't have supreme authority unless you apply human rights law, you don't have any, we don't want another holocoust, human rights are important"

It was, if you think about it, a good argument.

So after that the ECJ started being the champ for human rights. Oh, how the ECJ loved human rights from that point. So did the commission, all of a sudden. Suddenly (i suspect in a bid to gain greater power for its own sake) human rights were part of the EU, and suddenly the ECJ was interested in human rights.

Anyway, that is the context for the weird law I am about to explain: huge amounts of insincerity and hand wringing about human rights.

Now, why do swiss natives have less rights than visiting Europeans?

The answer is found in english law, taken to the ECJ. The EU citizen can only ENLIVEN HIS RIGHTS (make them applicable) if he or she crosses an EU border. They cannot stay in their own country and demand human rights as an EU citizen.

So, in England, consider the following two cases: One lady is english and has an african husband. She has never left england. another lady is, say, french. And she also has an african husband. Well, the lady who is french does not need a marriage visa, because she can exercise her fundamental human rights. The English lady cannot exercise the same rights in England. She could, if she moved to france.

Believe it or not, that is the law of england today. The EU law is not enlivened unless one crosses a border, and so folks who stay in their own countries have fewer rights than visitors from other EU states.

Think of it like the leftover vestige of national governments running their own immigration policy.

Quote:

Originally Posted by miniMia (Post 182709)
I'm lost.

You are not alone. This surely the craziest law going just now. Not only is it difficult intellectually, it is uncertain and the procedures for enforcing it change from month to month.

What is certain is that we see a trend in the EU for state governments to devolve rule making power on immigration to a central authority. That is the clear trend, everywhere in Europe.

So my question is, what happens when the ECJ points its finger at little Switzerland and says "You too!"?

cynik 03.03.2008 18:07

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by Shorrick Mk2 (Post 182712)
If your point has anything to do with admission of spouses, you might know already that unlike the prescriptions of Article 3, the protection of the right to respect for private and family life is not absolute. Interferences can be justified in law provided that the interference is prescribed by law, in the pursuit of a legitimate aim and proportionate.

Sure, but what of the right to exercise the rights? Is it a permission or a right?

Quote:

Originally Posted by Shorrick Mk2 (Post 182712)
Even though there is a right to respect for family life this, in principle, does not extend to a right to respect for the choice of marital or family home. Where there is an alternative country in which the spouses/family can reside and there are no ‘insurmountable obstacles’ to relocation and settlement there, or where a person subject to immigration control could return to the country of origin and obtain entry clearance as a family member in the ordinary way without risk or excessive delay, declining residence in the UK may not amount to an interference with the right to respect for family life.

Once again, we presume there is the right to demand "entry clearance" by the government. Is there? And if there is, can a government demand what form that entry clearance takes, or are the substantive facts the issue?

If the Swiss say yes and the ECJ says no, then what? I mean, I don't know. I am just noting that EU case law and the law you describe here appear to be different.

Quote:

Originally Posted by Shorrick Mk2 (Post 182712)
I don't quite know what to make of the rest of your plights.

...pass!

miniMia 03.03.2008 18:27

Re: EU human rights law under bilateral treaty
 
Ok. You really need to take out most of what you have written for people to understand you. You have lots of opinion and reparte mixed in with questions, rhetoric, making "points" and exclamations, etc.

I still don't know what law you are talking about as you haven't showed me the law so I can read it and then comment on it.

A right to entry clearance is not the same as residency permit and, again, I assume as I haven't read the law, with the right comes obligations. Like, you have the right to freedom unless you kill someone. You have the right entry unless x, you have the right to residency unless y, you have the right to freedom of speech unless z, etc.

Then you have a process to follow to attain those rights. I.e. As a spouse of a Swiss citizen, you want residency then you go to the commune and declare your presence. You do not ask permission. You tell them you are there and unless you do something like x, y, z (have criminal record, blond hair, can't support yourself and your spouse (or vice versa), whatever) then you get your permit.

Anyway, some laws pertaining to spouses are already governed at the federal level and not at the canton level: ie. facilitated naturalization for spouses of Swiss citizens. The canton doesn't have a say in the process.

Shorrick Mk2 03.03.2008 18:36

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by cynik (Post 182737)
Once again, we presume there is the right to demand "entry clearance" by the government. Is there?

As far as we are, it appears there is - I don't think this has been repealed so far. Maybe you can come up with some jurisprudence?

Quote:

And if there is, can a government demand what form that entry clearance takes, or are the substantive facts the issue?
I suspect you're having issues with the principle of parliamentary sovereignty.

By the way, "the law I describe there" is UK's interpretation of EU case law and specifically of the EU Human Rights convention.

That's more or less as far as I'm willing to go on this go-nowhere topic.

cynik 03.03.2008 19:05

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by Shorrick Mk2 (Post 182747)
As far as we are, it appears there is - I don't think this has been repealed so far. Maybe you can come up with some jurisprudence?

Sure. Actually, you already did. Annex 1 to the bilateral agreement that sets out how Article 3 of that agreement (free movement of folks). I followed that up and find the following:

Annex 1, Art 1, section 1:

1. The Contracting Parties shall allow nationals of the other Contracting Parties and members of their family within the meaning of Article 3 of this Annex and posted persons within the meaning of Article 17 of this Annex to enter their territory simply upon production of a valid identity card or passport.

No entry visa or equivalent requirement may be demanded save in respect of members of the family and posted workers within the meaning of Article 17 of this Annex who do not have the nationality of a Contracting Party. The Contracting Party concerned shall grant these persons every facility for obtaining any necessary visas.

Annex 1, Art 3, section 1:
Members of the family
1. A person who has the right of residence and is a national of a Contracting Party is entitled to be joined by the members of his family.

So, that is the agreement between the states.

Reasonable men may differ, but I would say that this language indicates a legislative intention to create rights that MUST be respected. Note particularly the extra sentences demanding that folks being given "every facility" to get their paperwork. In the ECJ, this has been interpreted as meaning that states cannot even charge a fee for this "service".

Reading this law in light of the ECJ interpretations of the very same provisions and terms in EU law, I would hesitate to suggest that, on the face of it, EU nationals even need a B permit. It seems that the law allow the Swiss to keep track of family members who are not EU nationals (but not the right to deny them without cause), but I can't read this law without wondering if the whole B permit system for europeans is misguided and unlawful, according to the treaty.

This is what I meant earlier when I said the Swiss feds have been half hearted in drafting their view of the law. They allowed the bilateral agreement to be written in the language of the EU, and now they must show cause as to why the ECJ should not be the authority of this law, and the lawful authority of its scope.

Quote:

Originally Posted by Shorrick Mk2 (Post 182747)
I suspect you're having issues with the principle of parliamentary sovereignty.

Your damn straight I do. Anyone who doesn't wonder about sovereignty has no political imagination at all.

Quote:

Originally Posted by Shorrick Mk2 (Post 182747)
By the way, "the law I describe there" is UK's interpretation of EU case law and specifically of the EU Human Rights convention.

Yeah, that's right. Except to be pedantically accurate, the UK courts uphold the case law of the ECJ, they do not interpret it. And it isn't the Human Rights Convention they follow, but rather the Human Rights Act 1998 (UK), a very controversial piece of legislation that forces UK courts to abide by the human rights law of the EU, as set out by the ECJ and commission.

Actually, this isn't pedantry. It is kind of what this whole thread is about. Does the treaty give power to the ECJ to set standards, or does it allow states to interpret the law as they like?

Quote:

Originally Posted by Shorrick Mk2 (Post 182747)
That's more or less as far as I'm willing to go on this go-nowhere topic.

:msnshock:

Well, thanks anyway. It is kind of boring for most folks to discuss these things, it is fun to have company.

smithash 03.03.2008 19:41

Re: EU human rights law under bilateral treaty
 
Your confusing the issue as the directive that applies to the UK http://eur-lex.europa.eu/Notice.do?m...rds=2004/38/EC~

has not been signed to the best of my knowledge by the Swiss.

The deal was that by April 2007 all signatories would include the directive in National law.

We had major problems with the French when we relocated last year this took a few months to resolve but is now sorted.

ash

gbn 03.03.2008 19:46

Re: EU human rights law under bilateral treaty
 
Your point is, caller?

Most people's perception of Human Rights comes from hearing about prisoners being denied weekly shags or burglars injuring themselves falling off your roof.

Normal people just get on with their lives.

Polorise 03.03.2008 19:51

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by gbn (Post 182787)
Normal people just get on with their lives.


http://www.wortfilter.de/kurios/0701...roll_spray.jpg

might be in the answer ?

:msnsarcastic:

gbn 03.03.2008 19:53

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by Polorise (Post 182791)
*snip*

might be in the answer ?

:msnsarcastic:

I know, I know, but I'm a sucker for a coherent, lucid and literate troll posting :msnblush:

04.03.2008 10:27

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by cynik (Post 182670)
I am curious toknow what folks would think would be the verdict if a european sued the swiss government for not issuing a work permit to a spouse WITHOUT BEING ASKED.

You'd lose, obviously, as a work permit isn't required and hasn't been for quite some time. Further, the only way the local authority wouldn't be "asked" for a RESIDENCE permit would be if the person failed to register within the 8 days specified. The person wouldn't have to ask - just register and then it's automatic.

Shorrick Mk2 04.03.2008 11:13

Re: EU human rights law under bilateral treaty
 
Quote:

Originally Posted by gbn (Post 182793)
I know, I know, but I'm a sucker for a coherent, lucid and literate troll posting :msnblush:

The troll is coherent and lucid but certainly not literate enough. Had he been so - this thread wouldn't have been started.

For starters, the Agreement on Free Movement contains explicit directions towards the implications of ECJ jurisprudence.

If the application of the Agreement involves notions of EC body of law, jurisprudence prior to the date of the Agreement's signature will have to be considered (that is article 16 para 2. of said Agreement) So unlike what the OP would have us believe, the issue certainly wasn't addressed half-heartedly by the Swiss government; and there certainly is no leeway in the way the cantons address this as it is federal legislation.

Further, there has been no reticence in Swiss Courts to take into account jurisprudence posterior to the Agreement's signature, (which is not to be applied by default stricto sensu, but rather be examined initially by a Mixed Committee - and nota bene this is what the agreement says; so all claims that the Swiss having their own interpretation would jeopardise the legislative equivalence principle are preposterous, as that right is agreed upon).

The Federal Court has consistently issued jurisprudence along the lines of EC jurisprudence as far as family reunion is concerned - see sentence in 2A.238 of 2003, consid. 5.2.2 which builds along the lines of Baumbast C-413/99.

Not only that but the Federal Court has also used references to EC law to fill voids in Swiss law (even though the matter judged was not governed by the Agreement) - see ATF 129 I 265 (consid. 5.2).

I might be wrong, but I don't believe the purpose of the European body of law is to supersede the national bodies of law as far as immigration is concerned. As a matter of fact, the European directive on Family reunion (2003/86/CE) specifically excludes EU citizen, their condition being addressed by the respective national bodies of law.

The rest, as I said, I won't comment upon.

By the way, this should be moved either under Politics or Off-Topic, as it has nothing to do here.

cynik 05.03.2008 23:36

Re: EU human rights law under bilateral treaty [Moved]
 
Shorrick, please stop calling me a troll. I am not interested in trading insults, and I have no idea why you are so abusive, so quickly.

Ever since I came to this forum, you have displayed immense arrogance and petty nastiness. I made an effort to be nice, and since gave that up.

You have already made it clear that you consider yourself above this thread, and have promised twice now to say no more. If you want, you can be as good as your word.


All times are GMT +2. The time now is 16:58.

Powered by vBulletin® Version 3.8.4
Copyright ©2000 - 2021, Jelsoft Enterprises Ltd.
LinkBacks Enabled by vBSEO 3.1.0