A Swiss-born Spaniard, reference is made in spite of a committed robbery, not of the country. He falls under the hardship clause. This was decided by the Federal court and in order for a complaint of a man partially approved.
The Vaud cantonal court sentenced the man last year for robbery, as well as for violations of the weapons and narcotics act to imprisonment for a term of twelve months. In addition, he was expelled for five years in the country.
In the years 2012 to 2016, the man was already four Times been convicted. It involved fines for damage to property, threat, offence against the weapons act and even left the 33-year-old man in his car of a Person who had no driving licence.
For robbery article 66a of the criminal code compulsory deportation. It can, however, be waived when a severe personal hardship exists that outweighs the public interest in deportation.
called in such A case, according to a Thursday by the Federal court published judgment. For the balancing of interests, the Federal court of the criteria, as they apply in the immigration law for the granting of a residence permit in a serious personal hardship. In the penal code, no such criteria are listed. And also from the parliamentary debate resulted in the drafting of the law, according to the Federal court, no guidelines can be derived.
The debate will show, however, that the exceptions from the mandatory country of reference are restrictive rules. Also, the legislature wanted to restrict judicial discretion in individual cases strongly, write to the Lausanne judges in their considerations.
As criteria for the assessment of a personal hardship if the Federal court takes into account the Integration, the respect of law and order, the family situation, the financial situation and the employment situation. To the weight, the duration of Attendance in Switzerland, the health condition and the possibility of reintegration in the country of origin fell.
in Addition, the criminal must observe the judge, in accordance with the highest Swiss court, as well, the prospects of social reintegration of the Convicted person. In this specific case, the Federal court is of the view that the public interest in a country of reference does not outweigh the private interest of the Spaniard. The man never lived in Spain. His whole family lives in Switzerland, including the mother, grandmother, and his two children. To the children he has a close relationship, even if he lives separately from their mother.
For its financial expenses, the Convict was always self-applied, to a short period of time after the loss of a job in August 2016. In addition, the Federal court considers the prospects for social reintegration to drug dealer can serve the sentence of imprisonment to be realistic. (judgment 6B_209/2018 from 23.11.2018) (fal/sda)
Created: 20.12.2018, 12:08 PM