As is well known, the Swiss Federal Council decided on 28 February to adopt all EU sanctions against Russia – not voluntarily, according to those familiar with the geopolitical situation, but in any case with more zeal than demanded in Washington and Brussels, because it also wants to please the EU and NATO turbos at home.1 Since then, the Federal Council has been constantly adapting its decrees – each time with the phrase that this does not harm Swiss neutrality(!).2 Before Easter, the Federal Council adopted the fifth package of sanctions, not without a rather casual commentary on the situation in general and the Russian “war guilt” in particular.

The Russian government is right to protest against Switzerland’s abandonment of neutrality and against the ahistorical and anti-neutrality statements of our government (see box). Fortunately, however, there are also Swiss personalities who are countering and insisting on respect for neutrality and the rule of law.

by Dr iur. Marianne Wüthrich

Implementation of the sanctions against Russia:
“We are among the best in the world!”

“We are not only on track, we are among the best in the world,” Federal President Ignazio Cassis boasted to the Swiss state media on 16 April: “We have virtually sanctioned eight billion francs and we have seized twelve buildings.” To “track down Russian assets”, the Federal Council is working closely with EU, US and G7 task forces, Cassis said, adding: “This action by Switzerland is 100 per cent compatible with the country’s neutrality” – you almost cannot hear it anymore!3
  So quickly – and without opposition – is our sovereignty being sold off. At the same time, every person’s fundamental right to the protection of their personality is being thrown in the rubbish. Because according to Art. 16 Para. 1 of the "Ordinance on Measures in Connection with the Situation in Ukraine" of 4 March 2022 (which the Federal Council relies on the Embargo Act), an “obligation to report” applies to everyone: “Persons and institutions that hold or manage funds or know of economic resources that may be assumed to fall under the blocking pursuant to Art. 15 para. 1 must report this immediately to SECO.” Spying on neighbours? Along the lines of “Every Russian is suspect”? That is reminiscent of dark times…
  Let us give the floor to a Swiss expert to put this outrageous process into perspective, the former president of the Swiss National Bank and todays vice-president at the world’s largest US asset manager “Blackrock”, Philipp Hildebrand, who views todays situation for Switzerland, Europe and the world with concern not only as a banker but also as a Swiss citizen: “What worries me is the legal arbitrariness with which some of the actions have been taken. Who will decide which accounts are closed – which will force companies to close because they no longer have bank access and can no longer pay wages? Who will decide who is close to Putin? I wouldn’t be surprised if there is a lot of concern among clients of Swiss banks because for years they relied on the stability, legal certainty and long-term nature of Switzerland. These were the core values of the Swiss financial centre.4 Incidentally, the media are already discussing whether the obligation to disclose should also apply to lawyers – that would be the beginning of the end of lawyer-client confidentiality!

Swiss constitutional state: Here we are not (any longer) among the best

I asked the General Secretariat of the Federal Department of Economic Affairs, Education and Research (EAER) three questions about the confiscation of Russian assets and houses. Here are excerpts from the answers given by Michael Wüthrich, the media spokesman for the EAER.

What is the constitutional basis for the freezing of bank accounts and the seezing of buildings?

Michael W.: The Federal Council took the decision in principle [...] on 28 February to adopt EU sanctions in connection with the situation in Ukraine. [...] The ordinance on measures in connection with the Situation in Ukraine was issued by the Federal Council on the basis of the Embargo Act (EmbA) and will be adapted when new sanctions are adopted.

Note: The “Federal Act on the Implementation of International Sanctions” (Embargo Act) of 22 March 2002 allows the Confederation to take coercive measures to enforce sanctions imposed by the UN, the OSCE or “Switzerland’s main trading partners” which “serve to ensure compliance with international law, in particular respect for human rights”. (EmbA Art. 1) The EmbG lists some very widely defined articles as constitutional bases, for example FC Art. 54 para. 1: “Foreign affairs are a matter for the Confederation”. Everything can be based on this!
  From the point of view of international law, the only permissible sanctions against a state are those decided by the UN Security Council – which in fact hardly ever happens, because as a rule at least one of the five veto powers votes against it. The fact that Switzerland has laid down in law that sanctions imposed by “Switzerland’s most important trading partners” (the EU? the USA? China?) are to be enforced by means of coercive measures is also very questionable in terms of neutrality law. 

How do you seize a building?
The freezing of assets is to be distinguished from confiscation; according to the Embargo Act, property rights remain with the sanctioned person in the first case (rule of law). Houses, cars and the like are also blocked, provided these persons are listed. In concrete terms, however, these assets are not confiscated. Trading in them, however, is prohibited. As an example: a house may remain inhabited by a sanctioned person, but it may not be sold or rented out. 

Note: The guarantee of property is one of the most important fundamental rights in the constitutional state (Federal Constitution Art. 26). By theoretically leaving the sanctioned homeowner his or her property rights, the state cloaks the actual encroachment on the guarantee of property. If a homeowner is not allowed to rent or sell his house, what are his property rights? 

What remedies do the sanctioned individuals and companies have?

Currently, 1091 natural persons and 80 companies and organisations are listed in Annex 8 of the “Ordinance on Measures in Connection with the Situation in Ukraine” – analogous to the EU. [...]
  Individuals, companies and organisations sanctioned by Switzerland can submit a so-called delisting request to the competent Department of Economic Affairs, Education and Research EAER. The EAER examines this and issues a contestable ruling. Any delisting would have to be decided by the Federal Council as a whole. This ensures that the rule of law is upheld.

Note: In order to be removed from the list, the person concerned must therefore apply to the same department that is entrusted with implementing the sanctions. The EAER, ultimately its head, Federal Councillor Guy Parmelin, examines the application and then decides, together with the other six Federal Councillors, whether the applicant’s name should be removed from the list. Since the decision on who to put on the list was made in Brussels and Washington respectively, the Federal Council is presumably neither willing nor able to judge the legality or illegality of the sanction. “The rule of law is therefore upheld,” replies the EAER – really?

Take countermeasures and hold on to Swiss values!

There is an urgent need for voices of dissent to these devastating events in Switzerland. There are some in our country, for example Guy Mettan, member of the Grand Council of the Canton of Geneva and former editor-in-chief of the “Tribune de Genève”, who was quoted in the last issue of Current Concerns with his striking statements on the abandonment of our neutrality by our “own team”.5 In a recent lecture, he called on us citizens to resist: “Switzerland has given up its neutrality, which it has held on to for two centuries, in a few days without a fight. I no longer recognise my country! Now it needs the resistance of a small minority.” That feels good.
  Blackrock banker Philipp Hildebrand also proves himself to be a good Swiss and a critical citizen of the world in a recent interview with the Handelszeitung(see box). Towards the EU, he advises Switzerland to “act wisely, buy time and wait to see how things develop.” Now is not the time to seek the next round of talks with Brussels. On neutrality: “Neutrality was indeed undermined very quickly, without a constitutional amendment and without a clear legal basis.” Hildebrand raises the question of what it means for diplomacy “if one could and would like to offer good services, but at the same time is no longer in a truly neutral situation and is therefore no longer even requested.” According to Philipp Hildebrand, Switzerland is facing a major challenge: “if the world moves back into a kind of Cold War logic, one has to rethink and articulate the foreign policy strategy [...].”6
  It is to be hoped that our representatives in Bern will “act wisely” in this sense and first rethink their positioning in Europe and in the world in the future, instead of manoeuvring our country into a situation from which we almost cannot find our way out.   •

READ MORE:

https://www.zeit-fragen.ch/en/archives/2022/no-10-10-may-2022/swiss-economic-sanctions-against-russia-undermine-neutrality-and-the-rule-of-law.html

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