- September 29, 2021
- Posted by: Hafez A. CHAMAT
- Category: Criminal law, Migration law
An occasional slap in the face or an insult during an argument is not considered domestic violence by the Swiss Supreme Court
Unfortunately, according to the Federal Statistical office, 20 123 people (mostly women) were victims of domestic violence in Switzerland in 2020 (https://www.bfs.admin.ch/bfs/en/home/statistics/crime-criminal-justice/police/domestic-violence.html) and almost two thirds of them were foreigners. It is likely that many more cases went unreported because of cultural values, the difficulty of reporting or, in the case of many foreigners, a desire to stay in Switzerland. Some victims fear that they will lose their right to remain in Switzerland after denouncing such violence, so instead they suffer in silence and absorb the pain.
In this article, we will shine a light on this issue and see what the law says and how the tribunals decide in these matters.
First, let’s start with the law: normally, a foreigner who is married to or who is in a civil partnership with a Swiss national or a holder of a C permit (indefinite settled status) has the right to live in Switzerland by means of family reunification. However, as soon as this family link dissolves, the foreign partner is asked to leave the country (if they have not yet graduated to a C permit in their own right). That said, article 50 of the Federal Act on Foreign Nationals and Integration (FNIA) stipulates two scenarios where this foreign partner can remain in Switzerland and ask for an extension to their permit:
1. The family union lasted for at least three years and the foreign partner is well integrated;
2. The foreign partner has a major personal reason to remain in Switzerland. The same article gives examples of these personal reasons, and domestic violence is one of them.
One important point to note is that this article applies only to the foreign partners of Swiss nationals or C-permit holders, so foreign partners of B-permit holders who have been granted family reunification do not benefit from it.
Now, let’s break down article 50 and work out what it means in practice. First of all, what constitutes family breakdown? According to Switzerland’s supreme court, family breakdown means only divorce or death of one partner. In the case of divorce, to invoke the first reason for staying in Switzerland, the family union must have lasted for at least three years, but when do we start counting these years? The Swiss supreme court answered that the period to be taken into account is limited to the period when the couple lived in Switzerland after their marriage or partnership up until they got separated, so the length of the union before moving to Switzerland is irrelevant. It is worth mentioning that the period considered ends upon separation and not divorce; the period after the separation does not count even if the partners were still officially married. On the other hand, these three years of living as a couple in Switzerland do not need to be consecutive: you can live here together for one year and then move abroad before returning and living together again.
After establishing that the three-year period applies, the authority will focus on the partner’s level of integration, because these are cumulative conditions. Integration is an undefined term and is looked at on case-by-case basis, but some major factors for consideration are whether:
1. You respect public safety and order;
2. You respect the values of the Swiss Constitution;
3. You can demonstrate reasonable language skills;
4. You are working or in education.
Suppose though that you don’t meet the conditions for the first scenario mentioned in article 50 (i.e. three years of marriage and a good level of integration). In this case, you will need to invoke domestic violence as a major personal reason for staying in Switzerland after family breakdown. So what qualifies as domestic violence?
The Federal Statistical Office states that “violence in a closed social environment is not defined by legal provisions but is derived from the relationship between the defendant and the victim”. Thus the definition of domestic violence is very broad and can take many forms: physical, psychological, or even financial. Interestingly, however, the Swiss supreme court has not considered an occasional slap in the face after a family dispute or an insult during a discussion to be domestic violence (ATF 138 II 229 consid. 3.2.1 ; 136 II 1 consid 5.3). In order for violence to be considered as such, it should be systematic with the aim of asserting control over the victim. A one-off slap in the face and some screaming and crying, therefore, do not have the intensity to be regarded as domestic violence, though repeated offenses, insults and violence do. The issue remains, though, of how to prove that these repeated actions took place? The perpetrator does not necessarily have to have been convicted to determine the occurrence of domestic violence, but a conviction could help to prove the victim’s suffering. In addition, proofs such as medical certificates, psychiatric reports, police reports, witnesses (family or neighbours) etc. can help to build a case.
In conclusion, the onus is on the victim of domestic violence to prove that she or he is suffering systematic and intense violence from their partner and that the aim of that conduct is to assert control over them. Thus, while the law technically allows a victim of domestic violence to remain in the country after breakdown of the relationship that gave them the right to live here, it is by no means easy and does not help those who are victims of serious but only occasional violence. We believe that this position will change soon as more and more victims raise concerns about this jurisprudence, arguing that it forces victims to hide their suffering for fear of being refused a permit if they end the relationship, and consequently allows the perpetrators to stay out of sight of the law.
Written by: Hafez A. CHAMAT