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Protect the fundamental rights of pandemic fighters

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Civil protection is an important support in the event of disasters of any kind, in addition to blue light partners, the army or even nursing staff. Since 2020, she has been heavily involved in the fight against the pandemic, for example in hospitals, in nursing homes or in support of the vaccination campaign. In the canton of Vaud, 67,000 days of service were carried out during the first wave alone, and the feedback from partners is laudatory. Those on duty – of which the undersigned has the honor to be a part – sacrifice their time without counting and demonstrate a great commitment to the country.

Read also: Civil protection is not spared by hiccups

This force is made up of men of Swiss nationality declared unfit for the army for medical reasons, who are however deemed suitable for civil protection; they have no choice in this assignment. Despite their service, the majority of them see an annual federal military service exemption tax, which is marginally reduced for each day of service. Many on-callers will certainly see their taxes greatly reduced because of their many days of service in 2020 and 2021, but the principle remains and decisions continue to be rendered.

A “pirouette” in response

Already in 2009, the European Court of Human Rights (ECtHR, in a Glor v. Switzerland judgment) ruled that the exemption tax violated the fundamental rights of those on duty. It discriminates against (i) Swiss fit for the army but who choose to perform alternative civilian service and are therefore in principle not liable for tax and (ii) Swiss doubly unfit for the army and civil protection due to a more serious handicap, who have no service to perform and in principle pay no tax.

Switzerland responded to this judgment with what some call a “pirouette”, restricting its application to such an extent that it has materially had (almost) no effect. In January 2021, the ECtHR confirmed that the measures taken by Switzerland are insufficient and that the tax, in its current state, still violates the fundamental rights of those on duty. This decision can still be referred to the Grand Chamber of the ECtHR by the Confederation, but is already a strong signal despite which the exemption tax continues to be collected.

Parliament should work towards an outright repeal of the exemption tax

The European Convention on Human Rights (ECHR) was enacted shortly after World War II to prevent such atrocities from happening again. It was for the European continent (unrelated to the EU) to impose a minimum standard of the rule of law and democracy. The ECHR is an integral part of the Swiss legal order and takes precedence over domestic law, its aim being precisely to avoid abuses by individual states.

The ECtHR was established to ensure the application and uniformity of the interpretation of the ECHR. Its jurisprudence must be respected, failing which the system is only a paper dragon and the rule of law a utopia. A restriction of fundamental rights by a State is in principle prohibited but can be made lawful if certain conditions are met, namely in particular that it serves a legitimate aim and is proportionate. This reasoning is invoked to justify the measures promulgated against the pandemic, but in no way justifies the exemption tax, which the ECtHR has twice stated.

Lisa Mazzone’s intervention

In these times of pandemic, there is no doubt that we must stick together and accept some legitimate restrictions on fundamental rights. Nevertheless, it is our civic duty to speak out vigorously against any illegitimate violation of fundamental rights in Switzerland, in particular when they target people who tirelessly fight against the pandemic.

Thus, it is necessary to react on three fronts:

– The penalty persons concerned must imperatively claim against any problematic taxation decision. This procedure is free and is the means of suspending the entry into force of decisions, while waiting for the State to respect its obligations.

– The Confederation must face up to its responsibilities: (i) by not referring the case of Ryser v. Switzerland before the Grand Chamber and (ii) by immediately instructing the cantons to suspend all taxation of the persons concerned.

– The exemption tax is on the agenda of the Council of States on March 10. The relevant intervention of Ms Lisa Mazzone (Verts-VD) predates the Ryser v. Switzerland and the scope of the discussion is therefore a priori limited. Despite this, the parliament should work towards an outright repeal of the exemption tax, insofar as it violates the ECHR.

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