24.09.2014 Oberwinterthur: transit sites only for Swiss travellers is unlawful

Hirsekorn (2014) reports on the reopening of the transit site in Oberwinterthur. Different journalists reported that the transit site was closed in late August due to strong hygienic issues. Primarily foreign travellers, above all, foreign travelling Rroma were made responsible for these issues. After maintenance work, the site has now been reopened, but only for Swiss travellers, as the police commander of Oberwinterthur, Daniel Beckmann, states. Therewith one enters a legal grey area, since a transit site only for Swiss travellers is unlawful according to various legal experts: “prohibitions of stay and separate sites for Swiss and foreigners remain legally contentious for several reasons: prohibition of discrimination I: the federal constitution guarantees equal treatment for all people (Art. 8, paragraph 2). No one shall be discriminated against, not because of his heritage or lifestyle. “Unequal treatment is appropriate only when there are serious objective reasons”, says Markus Schefer, professor of constitutional and administrative Law at the University of Basel. Whether these reasons are given with the Jeniche not using this site and the problematic hygienic conditions in Winterthur is highly questionable. Prohibition of discrimination II: according to the agreement on the free movement of persons (FMP), every EU-citizen must not be hindered or denied stay or entry into Switzerland. “As long as no congestion for transit travellers occurs, there is no problem”, says Fiona Wigger of the federal agency for culture. This is contradicted by Schefer: “If a traveller is part of the FMP, the site prohibition is a serious problem.” Prohibition of discrimination III: “Such an interdiction generalises in a serious manner”, said Schefer. If this leads to a collective judgment, the case is even more problematic. It feeds the suspicion that per se, they behave badly: “The result are pejorative stereotypes against a particular group.” Huber’s statement (2014) that a ban on foreign travellers does not violate the prohibition of discrimination is therefore incorrect. In addition, a general interdiction of foreign travellers contradicts the principle of proportionality. Andrea Egbuna from the Swiss Competence Centre for Human Rights (SCHR) states that therefore, in the event of problems, one must evaluate if individual travellers can be sanctioned with a deposit for cleaning costs, rather than cast a general suspicion on all foreign travellers. As has been repeatedly criticised by the Rroma Contact Point, the conflict concerning permanent and transit sites in Switzerland is a general problem of too few sites for travellers. This conflict is then fought on the backs of foreign Rroma who are instrumentalised as scapegoats for these general structural problems. That there are indeed such massive differences between foreign-travellers and Swiss Jeniche that make any peaceful co-existence impossible is doubtful. The claim that Rroma use no toilets and instead do their business outdoors is absurd. Particularly the Rroma have strict hygiene regulations, which is reflected in the tradition of ritual impurity. Moreover, it seems that the differences between Jeniche and Rroma are deliberately highlighted and exaggerated because of occasional conflicts. Most Rroma are sedentary and not travelling anyway.