The 62-year-old IV-pensioners consumed even cocaine, sold a couple of grams and about 900 grams of marijuana. Neither the consumer nor the small sales can lead to a deportation.
But found in his bedroom, the authorities still corresponds to 127 grams of cocaine with a Purity of more than 90 percent of the 109 grams of pure Cocaine hydrochloride. Thus, it is a severe case, because he can bring the health of many people in danger.
For such cases, the penal code, in the case of foreigners provides for the mandatory deportation of five to fifteen years. The district court condemned the Italians to a conditional sentence of imprisonment of 20 months, but did not play a land reference. The fault of the man was "easily classified". Whether a country reference has to be pronounced, but neither of the Severity of the fault by the amount of the penalty.
On the measure may only be "exceptional" if the deportation "would result in for the foreigners a serious personal hardship, and the public interests of the country in reference to the private interests of the foreigner on the whereabouts in Switzerland do not outweigh". The prosecution further moved the judgment of the district court to the Supreme court. The 62-Year-old, the 16-Year-old in Switzerland, should be referred to for five years in the country.
"It is an absolute borderline case. The decision was on a knife-edge."From the grounds of judgment of the Supreme court
The Prosecutor referred in his explanatory statement on a fact sheet to the public Prosecutor. After that, the court is to apply the rule only in two cases, a waiver of the country of reference to:
For one, if the alien has a close bond with Switzerland and only a conditional penalty of not more than twelve months is requested. To the other, if the foreigner is born in Switzerland, the major part of his life here and has spent, at the time of Adjudication and has a valid residence permit and a conditional penalty of not more than 24 months will be requested. Both of these conditions, the state's attorney, were not met for the 62-Year-old.
The Supreme court is not bound to the guidelines of the Supreme public Prosecutor's office – guidelines, which were formulated before the Federal court has expressed the hardship provision. Also, the Supreme court renounced a country of reference, and noted: "It is an absolute borderline case. The decision was on a knife-edge."
60 years of law-abiding
The man lived for 46 years in Switzerland, I worked as a construction worker almost thirty years, until he due to a heart attack and back pain had become invalid.
He's been over 30 years with a Swiss woman married, the second wife, an eleven-year-old son and a daughter from his first marriage, a one-year-old grandson. To all the care he is a "close contact". Switzerland was the centre of his life. "The loss of the right of residence would interfere in his life."
Nearly sixty years he had kept the law. Now he's, what threat to him, doesn't know if he would re-offend.
hardship provision: are people
Every foreigner must expect a country of reference, if he has drugs or is sold, which he knows because of their amount, or must accept that he can bring as a result, "directly or indirectly, the health of many people in danger". That's why the 62-year-old Italian IV-pensioners stood in front of the court (Text links). For the same reason, a 54-year-old Italians this week in court. The 62-Year-old who liked to keep a stash at home 109 grams of pure cocaine, wanted to refer to the office of the public Prosecutor of the country. The 54-Year-olds, on the other hand, of not less than 840 grams of pure Heroin sold on the street, wants to abandon the prosecution on the referral.
Why a country of reference, according to the law, only "exceptionally" to be dispensed with, the 54-Year-olds have a "severe personal hardship" would result, it is not apparent from the indictment. It was written at a time when the uncertainty is large, what is supposed to be a hardship.
recently, now has formulated the Federal court, what aspects need to be considered in the country of reference. They are: degree of Integration, respect for the law, family relationships, financial Situation, desire to participate in the economy and to the acquisition of education, duration of presence in Switzerland and health status. Of importance is also whether the alien is born in Switzerland and grew up, his views on social reintegration and the possibility of reintegration in the country of origin. Even if the game stay rooms, the hardship clause must be applied to the Federal court in a restrictive manner. (Editorial Tamedia)
Created: 14.01.2019, 08:37 PM