Article 66a of the Penal Code (CP) came into effect on October 1, 2016, following the adoption of Articles 121 paragraphs 3 to 6 of the Federal Constitution (CST) related to the expulsion of criminal foreigners. The primary aim of this provision is public safety, specifically to prevent foreign individuals from committing new offenses in Switzerland.
This article includes a list of offenses that result in expulsion from Switzerland. Expulsion means that the state imposes a mandatory order for a person to leave the country (under threat of enforcement). It is usually accompanied by a re-entry ban. Therefore, a person who commits one of these offenses is expelled from Swiss territory for a period of 5 to 15 years. In the case of repeat offenses, the expulsion lasts 20 years (Article 66b paragraph 1 CP).
The list comprises offenses specified in Article 121 paragraph 3 letter a CST, supplemented by other offenses, mainly serious crimes against specific legal interests, namely:
Serious crimes against life and bodily integrity (Article 66a paragraph 1 letters a and b CP): murder (Article 111 CP), assassination (Article 112 CP), manslaughter (Article 113 CP), incitement and assistance to suicide (Article 115 CP), punishable abortion (Article 118 paragraphs 1 and 2 CP), serious bodily harm (Article 122 CP), female genital mutilation (Article 124 paragraph 1 CP), exposure (Article 127 CP), endangerment of another’s life (Article 129 CP), assault (Article 134 CP).
Serious crimes against property (Article 66a paragraph 1 letters c to f CP): aggravated breach of trust (Article 138, para. 2 CP), aggravated theft (Article 139 paras. 2 and 3 CP), robbery (Article 140 CP), professional fraud (Article 146 para. 2 CP), professional fraudulent use of a computer (Article 147 para. 2 CP), professional abuse of credit cards or cards (Article 148 para. 2 CP), extortion and blackmail (Article 156 paras. 2 to 4 CP), professional usury (Article 157 para. 2 CP), professional handling of stolen goods (Article 160 para. 2 CP), theft (Article 139 CP) related to burglary (Article 186 CP), fraud (Article 146 para. 1 CP) related to social insurance or social assistance, illicit acquisition of social insurance or social assistance benefits (Article 148a para. 1 CP), fraud (Article 146 para. 1 CP), fraud concerning benefits and contributions (Article 14 paras. 1, 2, and 4 of the Federal Act of March 22, 1974 on Administrative Penal Law), tax fraud, embezzlement of withholding tax, or other public law contribution offenses punishable by a custodial sentence of one year or more.
Serious crimes against liberty (Article 66a paragraph 1 letter g CP): forced marriage, forced partnership (Article 181a CP), human trafficking (Article 182 CP), kidnapping and abduction (Article 183 CP), aggravated kidnapping and abduction (Article 184 CP), hostage-taking (Article 185 CP).
Serious crimes against sexual integrity (Article 66a paragraph 1 letter h CP): sexual acts with children (Article 187 para. 1 CP), sexual coercion (Article 189 CP), rape (Article 190 CP), sexual acts with a person unable to discern or resist (Article 191 CP), encouragement to prostitution (Article 195 CP), pornography (Article 197 para. 4, 2nd sentence CP).
Serious crimes creating a collective danger (Article 66a paragraph 1 letter i CP): intentional arson (Article 221 paras. 1 and 2 CP), intentional explosion (Article 223 para. 1 CP), use of explosives or toxic gases with criminal intent (Article 224 para. 1 CP), intentional use without criminal intent (Article 225 para. 1 CP), manufacturing, concealing, and transporting explosives or toxic gases (Article 226 CP), dangers from nuclear energy, radioactivity, and ionizing radiation (Article 226bis CP), punishable preparatory acts (Article 226ter CP), intentional flooding or collapse (Article 227 para. 1 CP), intentional damage to electrical installations, hydraulic works, and protective structures (Article 228 para. 1 CP).
Crimes or offenses against public health (Article 66a paragraph 1 letter j CP): intentional endangerment by genetically modified organisms or pathogens (Article 230bis para. 1 CP), spreading a human disease (Article 231 para. 1 CP), intentional contamination of drinking water (Article 234 para. 1 CP).
Crimes or offenses against public communications (Article 66a paragraph 1 letter k CP): qualified obstruction of public traffic (Article 237 para. 1 CP), intentional obstruction of railway services (Article 238 para. 1 CP).
Crimes or offenses against public peace (Article 66a paragraph 1 letter l CP): preparatory criminal acts (Article 260bis paras. 1 and 3 CP), participation or support of a criminal organization (Article 260ter CP), endangerment of public safety by means of weapons (Article 260quater CP), terrorism financing (Article 260quinquies CP).
Genocides and crimes against humanity (Article 66a paragraph 1 letter m CP): genocide (Article 264 CP), crimes against humanity (Article 264a CP), serious violations of the Geneva Conventions of August 12, 1949 (Article 264c CP), other war crimes (Articles 264d to 264h CP).
Article 66a paragraph 1 letter n CP: intentional violation of Article 116 para. 3 or Article 118 para. 3 of the Federal Act of December 16, 2005, on Foreigners.
Article 66a paragraph 1 letter o CP: violation of Article 19 para. 2 or Article 20 para. 2 of the Federal Act of October 3, 1951, on Narcotics.
An exception to expulsion is outlined in Article 66a paragraph 2 CP. The judge may exceptionally refrain from expelling a foreigner if the following two conditions are met:
The expulsion places the foreigner in a serious personal situation.
The public interests in expulsion do not outweigh the foreigner's private interest in remaining in Switzerland. In this regard, the judge will consider the particular situation of the foreigner who was born or grew up in Switzerland.
The law does not provide guidance on interpreting a "serious personal situation" or the criteria for weighing interests. Therefore, the doctrine generally suggests referring to the criteria outlined in Article 31 of the Ordinance of October 24, 2007, on Admission, Stay, and Employment (OASA). According to this provision, a residence permit may be granted in cases of extreme gravity. It requires consideration of factors including the applicant's integration, respect for Swiss legal order, family situation, particularly the schooling period and duration of children's education, financial situation, willingness to participate in economic life and acquire education, length of stay in Switzerland, health status, and reintegration possibilities in the country of origin. The judge must also consider the offender’s prospects for social reintegration (ATF 144 IV 332, consid. 3.3.2).
Finally, the judge must consider the particular situation of the foreigner who was born or grew up in Switzerland. The intensity of the foreigner's ties to Switzerland and the difficulties of reintegration into their country of origin should be considered. It should be noted that, in any case, a foreigner who was born or grew up in Switzerland has a significant private interest in remaining in Switzerland, which must be taken into account when weighing interests (ATF 144 IV 332, consid. 3.3.3).
For example, a case of hardship under Article 66a paragraph 2 CP may be recognized when expulsion would constitute a significant interference with the individual's right to respect for private and family life as guaranteed by the Constitution (Article 13 CST) and international law, particularly Article 8 of the European Convention on Human Rights (ECtHR) (TF 6B_143/2019 of March 6, 2019, consid. 3.3.1).
It may also be assumed that, depending on the individual's health status and the healthcare services available in the country of origin, expulsion from Switzerland could place them in a serious personal situation under Article 66a paragraph 2 CP or be disproportionate under Article 8 paragraph 2 ECtHR (ATF 145 IV 455, consid. 9).
If you wish to obtain more information on this topic, the Valentin Legal Consultation will be happy to welcome you to our offices at 1 Rue du Valentin, 1004 Lausanne to answer any questions you may have. We are also reachable by phone at 021 351 30 00 and by email at info@cjdv.ch.
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