What is the case with arranged marriages
Law against forced marriage passed
Switzerland received a law that provides for a sentence of up to five years in prison for people who force someone to marry. This was decided by the National Council and the Council of States in the spring and summer sessions of 2012, respectively. The two chambers agree that stronger action against forced marriages is necessary in Switzerland. Against the will of the Federal Council, the councils inserted a passage into the law according to which forced marriages should automatically be divorced. This means that in future a court will have to repeal a forced marriage even if the married couple want to continue the marriage.
The new law comes into force on July 1, 2013.
On relevance from a human rights perspective
Due to individual cases that have become known, forced marriages have increasingly come into focus of political attention: Marrying young women against their will in particular is a far-reaching violation of human rights. It violates the right to freedom of marriage (Art. 23 para. 3 UNO Pact II and Art. 16 para. 1 lit b of the Convention on the Elimination of All Forms of Discrimination against Women) and is forbidden as a slavery-like practice. Forced marriage also indirectly leads to further human rights violations, for example with regard to the rights to sexual self-determination and freedom of movement.
This results in a need for action on the part of the state authorities. Because the people affected must be protected from the violation of their rights by third parties, also in the private sphere. In addition, the state must ensure that they can actually exercise their rights. These protective obligations include criminal prosecution measures. In addition, from the perspective of human rights, the state has the duty to create the conditions so that people who have entered into a marriage under duress have the opportunity to free themselves from their forced situation. These measures must apply to all potentially affected persons, i.e. both in the case of forced marriages between partners who are in Switzerland and in the case of forced marriages from abroad to Switzerland or from Switzerland abroad.
The Federal Council's catalog of measures
On the basis of the results of the consultation process in 2008, the Federal Council decided, contrary to its original plan, to create a specific penal norm on forced marriages. He particularly hopes that this will send out a signal. A new Article 181a is to be created in the Criminal Code, which stipulates that persons who compel someone to marry through violence, threats of serious harm or other restrictions on freedom of action will be prosecuted ex officio.
The Federal Council's catalog of measures also stipulates that the civil status authorities must ensure that the persons to be married have not been forced into marriage. If there is any suspicion, the civil registry officer is obliged to report this and to refuse the marriage ceremony. The officials would now have to file a lawsuit if they are to marry a couple in whom one of the spouses has not yet reached the age of 18 at the time of the marriage.
An amendment to private international law (IPRG) is also planned. Here the provisions on marriages with minors are to be tightened. In the future, marriages before the age of 18 should no longer be permitted in Switzerland, even for foreigners, even if this corresponds to the rules of their home country. In principle, marriages concluded abroad with minors should no longer be tolerated.
Further adjustments are planned in the law on registered partnerships and in the Aliens and Asylum Act.
Debate in the National Council and Council of States
The National Council treated the business as the first councilor on the occasion of the 2012 spring session. The question of whether marriages with a minor partner can also be declared invalid retrospectively led to controversy. The Federal Council takes the view that in this case a marriage should be declared null and void, unless the partner who was once forced to do so wants to continue it. In the case of a marriage that was concluded with a minor wife abroad, he provides for a similar treatment. This means that if the underage wife has an overriding interest in the continuation of the marriage (e.g. because of children), it should not be declared null and void. The large chamber decided with 98 to 80 votes to approve the Federal Council's regulation.
The Council of States contradicts the National Council on this point. The small chamber wants forced marriages to be declared invalid in any case, even if the affected parties actually want to continue the marriage. This is to prevent the spouse from being forced by the family to continue the marriage. The Council of States rejected the Federal Council's formulation in this regard with 23 votes to 14. However, they passed the proposal unanimously in the overall vote.
Federal Councilor Sommaruga argued that a “forced divorce” would be disproportionate and would severely interfere with the constitutionally protected rights of people. She emphasized that a forced divorce could constitute a violation of fundamental rights and could therefore also be condemned by the European Court of Human Rights.
Regardless of Sommaruga's warnings, the National Council followed the Council of States in adjusting the differences.
Proposal for a minimum penalty was supported by many
In the debate about the measures against forced marriage in the National Council, it became clear that some politicians are not only concerned with protecting those affected. A minority application for a mandatory minimum sentence of two years was justified by the author (Ruedi Lustenberger, CVP / LU) with the fact that delinquents would have to leave Switzerland after a conviction if the deportation initiative was implemented one day. This proposal was rejected relatively narrowly by the National Council with 86 votes against 95.
It was forgotten that a corresponding rule not only means that convicted foreign parents can be expelled from Switzerland. It is obvious that victims are unlikely to turn to the state if the family is threatened with deportation. Those affected would hardly be helped and such a regulation would force them to accept a forced marriage. The entire template would therefore have nothing more than symbolic character. Regardless of the defeat in the National Council during the debate on forced marriage, these circles are sticking to their demand: A CVP representative submitted a motion at the beginning of March 2012 that takes up exactly this point again.
Comment from humanrights.ch of March 12, 2012
It seems that political circles are all too quick to forget what the aim of a proposal is when it comes to migration issues. You are primarily concerned with the deportation and not the integration of the young generation of foreigners.
In contrast, the steps taken by the Federal Council are largely to be welcomed. It should be remembered that, from the perspective of human rights, the authorities in particular have a duty to provide meaningful preventive measures and advisory services. With the adoption of the Tschümperlin motion, there is now corresponding political pressure for this. In addition, there are some legal loopholes in the adopted bill that can still be improved in Parliament. In order to adequately protect young victims without a Swiss passport, it is important that they do not lose their right of residence in Switzerland after six months if they are married off by their families during their holidays abroad. A regulation such as that adopted by Germany in this area in mid-April 2011 would make sense here (right of return for 10 years).
In October 2009, the Federal Council commented on the consultation on the measures against forced marriages and stated that the majority welcomed the legal measures in the consultation. In his press release, however, he also mentioned that there had been a lot of detailed criticism. He therefore gave the FDJP the mandate to work out a message by the end of 2010 and, in particular, to provide for increased protection under criminal law.
The Federal Council proposal, which went into consultation in 2008, did not provide for any specific penal norm. The government did not want to include a provision in the penal code that explicitly criminalized forced marriages. Forced marriages are covered by the fact of coercion, the Federal Office of Justice stated at the time. They would be prosecuted ex officio and punished with imprisonment of up to three years or a fine. In its press release of November 2008, the FDJP stated that such a penal norm could heighten public awareness of the problem. In view of the linguistic and cultural barriers, however, it is doubtful whether this signal would even reach perpetrators and victims.
Motion Heberlein as a trigger
The legislative changes now envisaged go back to a motion by Councilor Trix Heberlein. In a motion in 2006, the Federal Council demanded that the Federal Council be instructed to «immediately take all necessary legislative measures (criminal law, civil law, immigration law, etc.) and develop a comprehensive concept that is suitable for preventing forced and arranged marriages, to provide effective support to the victims (exit aid, identity, etc.) and to protect their fundamental rights ». After the Council of States had already accepted the motion in the 2007 spring session, contrary to the Federal Council's proposal, the National Council also approved it in the 2008 spring session. At the request of the preliminary advisory commission, however, the National Council decided not to explicitly mention the arranged marriages in the motion text. The Council of States followed this unanimously in the 2008 summer session.
Between the handling of the business in the Council of States in 2007 and in the National Council in 2008, the Federal Council had already drawn up a detailed report on the problem of forced marriages in Switzerland in 2005 in compliance with the postulate “Criminal liability of forced and arranged marriages” by the State Political Commission. In this report, the Federal Council opposed the inclusion of an explicit penal norm in the criminal law. Forced marriages would already be covered by the fact of coercion.
Chronological list of parliamentary initiatives on the subject of forced marriage:
Humanrights.ch/MERS: Prevention instead of repression
The original way of the Federal Council to dispense with an explicit penal norm was welcomed by human rights organizations such as humanrights.ch and Amnesty International. However, humanrights.ch was disappointed that "the proposals are essentially limited to expanding repressive measures and ultimately offer little support to the victims of forced marriage." Humanrights.ch was of the opinion that the existing law, if it were applied correctly and consistently, would already have enough repressive instruments in place to take action against forced marriages. Humanrights.ch therefore emphasized that prevention and counseling work to prevent forced marriage is particularly important. «The aim of the revisions should be to guarantee the victims of forced marriage or threatened forced marriage protection and assistance in any case. Humanrights.ch also spoke out in favor of measures to educate and raise awareness. These should clearly convey that forced marriages will not be tolerated. In the opinion of humanrights.ch, corresponding measures - apart from the affected population groups - must also be directed at the educational institutions, the guardianship authorities, the police and civil registry officials. "
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