E-Book (PDF): DOI 10.33057/Chronos.1529 Publications of the Independent Expert Commission (IEC) on Administrative Detention
Total Page:16
File Type:pdf, Size:1020Kb
Unabhängige Expertenkommission Commission indépendante d’experts Commissione peritale indipendente Administrative Versorgungen Internements administratifs Internamenti amministrativi MECHANICS OF ARBITRARINESS ADMINISTRATIVE DETENTION IN SWITZERLAND 1930–1981 FINAL REPORT asagrande C VOL. 10 D Independent Expert Commission on Administrative Detention lphil | Edizioni lphil A V Chronos erlag | Éditions PUBLICATIONS BY THE INDEPENDENT EXPERT COMMISSION (IEC) ON ADMINISTRATIVE DETENTION – VOL. 10 D INDEPENDENT EXPERT COMMISSION (IEC) ON ADMINISTRATIVE DETENTION (ED.) MECHANICS OF ARBITRARINESS ADMINISTRATIVE DETENTION IN SWITZERLAND 1930–1981 FINAL REPORT EDITED BY THE INDEPENDENT EXPERT COMMISSION (IEC) ON ADMINISTRATIVE DETENTION CHRONOS VERLAG | ÉDITIONS ALPHIL | EDIZIONI CASAGRANDE TABLE OF CONTENTS Foreword 9 ADMINISTRATIVE DETENTION IN SWITZERLAND 1930–1981 SYNTHESIS REPORT 13 URS GERMANN, LORRAINE ODIER WITH THE ASSISTANCE OF NOEMI DISSLER AND LAURA SCHNEIDER 1 Introduction 15 1.1 Historical injustice as a challenge for today 16 1.2 Mandate of the IEC, research priorities and methodology 24 1.3 Objectives and structure 32 2 A rule-of-law “monster”: Development, criticism and repeal of the laws on coercive welfare measures 37 2.1 Opening considerations: The place of administrative detention in the Swiss legal order 38 2.2 Between inertia and transition: The origins and development of administrative detention law 44 2.3 Problematic law: Undefined legal terminology, wide discretionary powers and absence of legal remedies 61 2.4 Persistent, but marginal: Public criticism of administrative detention law 67 2.5 New alternatives: From administrative detention to involuntary commitment 74 2.6 Interim conclusion: Special laws as gap fillers 87 SOURCE 1: Maintaining social order 91 SOURCE 2: Success against the arbitrariness of office 94 3 The “defenceless”: The individuals targeted by administrative detention 101 3.1 Temporal and cantonal variations in the use of administrative detention 102 3.2 The risk factors of administrative detention 107 3.3 An instrument for imposing sanctions on men 115 3.4 Survival artists 119 3.5 Interim conclusion: Administrative detention measures always targeted the disaffiliated 124 4 The pathways to detention are many: Social stigmatisation and official intervention 127 4.1 Administrative detention procedure: Numerous actors and many imponderabilities 128 4.2 Pushed to the margins: Social exclusion and stigmatisation as preludes to official interventions 137 4.3 The authorities intervene: Rationales and rationalisations 143 4.4 Living with detention: Between impotence and resistance 163 4.5 Interim conclusion: Unpredictability as structural violence 169 SOURCE 3: Disregard of procedure 172 SOURCE 4: Expert opinion with far-reaching consequences 175 5 Locked away: Theory and reality in the enforcement of administrative detention measures 179 5.1 The Swiss institutional landscape: Structures and evolution 180 5.2 Daily life in closed detention: Isolation, discipline and forced labour 204 5.3 Release and surveillance: The path to freedom? 220 5.4 Interim conclusion: Insufficient funds and lack of social recognition 230 SOURCE 5: Work for no wage? 234 SOURCE 6: Freedom through abstinence 239 SOURCE 7: Violence in closed facilities 242 6 Marked for life: Consequences of administrative detention for the later lives of detainees 247 6.1 Heightened risk of poverty 249 6.2 Problems in social and family life 256 6.3 Tactics for defending against the risk of poverty 261 6.4 Resisting stigma 266 6.5 Fighting for the future: Never again! 270 6.6 Interim conclusion: From detention to recognition – a lifelong obstacle course 281 SOURCE 8: Freedom under surveillance 285 SOURCE 9: Coerced into adoption 289 7 Conclusion 293 8 Bibliography 315 TEXTS BY PERSONS AFFECTED BY COMPULSORY SOCIAL MEASURES 329 URS ALLEMANN-CAFLISCH 332 ERNA AMSLER-SOOM 335 URSULA BIONDI 337 ROBERT BLASER 342 DANIEL CEVEY 345 SERGIO DEVECCHI 348 PHILIPPE FRIOUD 352 HUBERT MEYER 358 CAROLINE MONTANDON 361 GIANNI MORA 365 GABRIELA PEREIRA 369 FOURTH WORLD 373 M. STEINER 377 USCHI WASER 379 RECOMMENDATIONS OF THE INDEPENDENT EXPERT COMMISSION (IEC) ON ADMINISTRATIVE DETENTION 383 1 General introduction 385 2 Recommendations 393 2.1 Rehabilitation of CSM victims through additional financial benefits 393 2.2 Rehabilitation of CSM victims through support for citizen action 394 2.3 Rehabilitation of CSM victims through facilitated access to knowledge and culture 396 2.4 Rehabilitation of CSM victims through the production and dissemination of knowledge 397 3 House of the Other Switzerland project 401 4 Conclusion: Basic human rights – an issue that remains open? 403 Authors 405 9 FOREWORD In this Final Report, the Independent Expert Commission (IEC) on Admin- istrative Detention illustrates the results of its research work and presents its recommendations for the authorities. The Federal Council appointed the IEC on 5 November 2014, electing Markus Notter president and Jacques Gasser, Beat Gnädinger, Lukas Gschwend, Gisela Hauss, Thomas Huonker, Martin Lengwiler, Anne-Françoise Praz and Loretta Seglias members. The IEC was charged with the task of examining administrative detention up to 1981 with a measure-oriented approach and of drawing up conclusions for the authorities. The research was to focus on the history of administra- tive detention, on the point of view of the people involved and of the vic- tims as well as on the analysis of state intervention and official action. The IEC also had to take into account the correlations with all the other kinds of compulsory welfare measures and custody arrangements before 1981. The appointment of an IEC was set forth in the Federal Act of 21 March 2014 on the Rehabilitation of Administrative Detainees. In line with the appointment order, the IEC was assigned to the Fed- eral Department of Justice and Police and had its headquarters in Bern. It had its own secretariat and was authorised to employ academic and administrative personnel independently as well as assign mandates to ex- ternal experts. As far as the financial means were concerned, 9.9 million Swiss francs were allocated for the planned four-year period of activity. The IEC defined its organisation and workflows in an internal set of rules, as prescribed. Setting up an academic project with over 30 researchers within the Federal Administration, where the regulations in force are moulded on the requirements of a governmental administrative appara- tus, was in itself a challenging task. A temporary academic unit is essen- tially an alien body. Nonetheless, together with the offices involved, the IEC was able to find pragmatic solutions and create a productive working environment. Even though the project was not actually structured as a participative research, it was our wish from the outset that the victims be involved in the research process on equal terms. We maintained regular contact with the victims and their organisations, discussed the research design together with them, and informed them at public workshops and exchange events 10 about the interim results and the progress of the research. In so doing, we received valuable feedback and benefited from the victims’ knowledge and experiences, which made them experts in the matter. We are, however, also aware that we were unable to fulfil all the expectations regarding the sci- entific reassessment of administrative detention. Our encounters with the victims were the most impressive aspect of our work. We discovered the myriad of ways of coping with the past and can today better understand how years of damage caused by state action cannot simply be undone with official declarations and one-off payments. That is why many victims can- not reconcile themselves with this state. And they have every right not to. The Final Report is divided into three parts. The scientific synthesis develops an independent point of view, sets the main focus and creates cross references between the individual re- search volumes. It pursues three objectives: first, it gives concise and dif- ferentiated answers to the most pressing questions regarding the forms and causes of the wrongdoings of the state. Here the report accomplishes a balancing act between analytical generalisations and detailed analyses of case examples. Second, the results of the IEC’s research are embedded in the national and, where possible, international research environment. At the same time, the IEC creates specific references to current discussions on measures involving deprivation and limitation of liberty. Third, the Syn- thesis Report points out open issues and indicates possible future areas of research. The report was drawn up on behalf of the Commission by Urs Germann and Lorraine Odier with the collaboration of Noemi Dissler and Laura Schneider and in close cooperation with the IEC President and his two deputies. In the 14 texts that form the second part of the Final Report, the vic- tims express their expectations concerning the work of the IEC, but also describe their life situation and the circumstances of their rehabilitation. It was important for us that the Final Report reproduce the victims’ voices in their original form. The IEC’s mandate also included drawing up conclusions for the au- thorities. With the recommendations in the third part of the Final Report we fulfil this task. On the one hand, we illustrate measures which aim to reduce the damage caused and, on the other hand, we wish to dissemi- nate knowledge and considerations regarding current issues in the fields of adult and child protection, but also of poverty, exclusion and marginal- isation in general. The recommendations were discussed with the victims 11 and were developed and drawn up by Christel Gumy in close collaboration with the Commission. The IEC was supported in its work by many people. Without the co- operation of the various archives, especially the cantonal archives, our re- search would not have been possible. A number of Federal Administration offices helped us with issues concerning infrastructure and organisation. We were also grateful for the interest and the responses of the researchers we contacted both in Switzerland and abroad.