Country report and updates: Switzerland

19 August 2009

Issues

• Substitute service is 1.5 times longer than military service.


• Those unfit for service have to pay a substitute military tax.

Military recruitment

Switzerland maintains conscription.
According to article 58 of the constitution, “in principle, the
armed forces shall be organised as a militia”¹.
Although the Armed Forces include some professional soldiers, the
great majority are conscripts. From 134'886 in 2008, about 17,506
were officers, 22,650 non-commissioned officers, and 4,230 other
professional soldiers or soldiers on time restricted contracts².

The Swiss Army has almost no
full-time active combat units but is capable of full mobilisation
within 72 hours. There is virtually no standing army apart from
training cadres and a few essential headquarters staff.

Conscription

Conscription is enshrined in article
59 (1) of the Swiss constitution: “Every Swiss man is required
to do military service. Alternative civilian service shall be
provided for by law”. According to paragraph 2 of the same
article, “military service shall be voluntary for Swiss women”³.

It is further regulated by the 1995
Federal Law on the Armed Forces and Military Administration (MG)⁴
and the 2002 Ordinance on Recruitment of Conscripts (VREK)⁵.

All men between the ages of 19 and 25 are liable
for basic military training. The length of basic military training is
21 weeks, and 18 weeks in some exceptional circumstances.

Women who volunteer for basic military training
have the same obligations as male conscripts once they have been
accepted⁶.

After basic military training, all men have
reservist duties of up to 21 days up to the age of 34, and up to 50
for officers. Reservist duties consist of 6 or 7 refresher training
periods of a maximum of 17 days each. The total length of military
service thus amounts to 260 days and up to 600 days for officers.⁷
20-30% of the recruits in basic training are obliged to do officer
training, according to article 15 of the Federal Law on the Armed
Forces and Military Administration, and article 85 of the service
regulations⁸.
Reservist duties also include home maintenance of equipment, a rifle
and ammunition.

It is also possible to apply to serve the total of
military service as one service (“Durchdiener”). In this
case, the total length of military service is 300 days for
conscripts, and more for non-commissioned officers and officers⁹.
This applies also to women who volunteer for military service.

Military exemption tax

According to the Law on Military
Exemption Tax¹⁰,
all those not fulfilling their military duties are in principle
liable to a military exemption tax. According to article 2 of the
law, this applies to all those liable to military service living in
Switzerland or abroad who for more than six months of a given tax
year have - for whatever reason - not been attached to a military or
reserve unit, or who have failed to attend when summoned to perform
their military service. However, article 4 defines a range of
exemptions, for handicapped people, and especially for Swiss citizens
living abroad.

According to article 13, the
military exemption tax is rated at 3% of taxable income, and a
minimum of 200 Swiss Franks (to be increased to 400 Swiss Franks from
2010). For handicapped people who are not exempt according to article
4 the tax is reduced to 50%.

Non-payment of the military
exemption tax can be punished with a fine of 200 Swiss Franks and
seizure of wages to recover the tax debt¹¹.

The Law on Military Exemption Tax
does not provide for a conscientious objection. As only those fit for
military service can apply for conscientious objection and perform a
substitute service, those with a conscientious objection who are
unfit for military service are liable to the payment of military
exemption tax. Also conscientious objectors who in a certain tax year
fail to serve in substitute service have to pay the military
exemption tax¹².

In April 2009, the European Court of
Human Rights decided on the case of a Swiss complaining about
discrimination for being obliged to pay the military exemption tax in
spite of being willing to to military service, but not being allowed
to due to health reasons. In this case, the ECtHR declared the Swiss
exemption tax a violation of article 14 in conjunction with article 8
of the European Convention of Human Rights, “finding that the
applicant had been the victim of discriminatory treatment as there
had been no reasonable justification for the distinction made by the
Swiss authorities between, in particular, persons who were unfit for
service and not liable to the tax in question and those who were
unfit for service but were nevertheless obliged to pay the tax”¹³.
It remains to be seen what the impact of this judgement will be on
the military exemption tax in Switzerland.

Professional soldiers

The Swiss Armed Forces are mainly
based on conscription. However, there are some posts for soldiers
serving on contracts. Applications are only possible for members of
the Armed Forces – conscripts or women volunteers after basic
military training and before the end of their reserve duties¹⁴.

Those applying for a post as
professional soldiers have more requirements. In addition to the
above, they need to have a professional education of at least three
years¹⁵.

Both
positions are mainly for people who are interested in a career as
officer or non-commissioned officer.

Professional soldiers sign an employment contract according to the Federal
Personnel Law (Bundespersonalgesetz)
from 2001¹⁶.

Conscientious objection

Conscientious objection for conscripts

In 1999, the right to conscientious objection was
included in the new Constitution. According to Article 59: “Every
Swiss man is required to do military service. Alternative civilian
service shall be provided for by law”¹⁷.
The right to conscientious objection is regulated by the 1995 Law on
Substitute Civilian Service, last amended on 3 October 2008¹⁸.

Both religious and non-religious grounds for
conscientious objection are legally recognised. According to article
1 of the Law on Civilian Service: “Those liable to military
service who cannot serve the military service for reasons of
conscience have on application to serve a longer substitute civilian
service according to this law”¹⁹.
The newly amended law does not require any explanation of the reasons
for conscientious objections, besides stating a conflict of
conscience with military service²⁰.

There are no time limits for submitting CO
applications. Applications can thus be made before, during and after
military service (by reservists).

If an application is made by a serving conscript
serving a term of more than 4 months, the application has to be
decided within two weeks. During this period, the applicant is not
released from the army.

Applications cannot be made by people who are too
old for reservist training or by those who are legally exempt from
service for medical or other reasons.

Applications must be made to the Central Civilian
Service Authorities (Ministry of Economic Affairs). Since 1 April
2009, applications are in writing only²¹.
Before 1 April 2009, a personal interview took place with a
commission. Its members were civilians who had been selected and
appointed by the Ministry. If the application is rejected, there is
a right of appeal to the Federal Court. Those who applied before 1
April 2009, but have not been recognised by 31 March 2009, will be
recognised without personal interview²².

Substitute service

According to article 8 of the Law on
Civilian Service, substitute service is 1.5 times longer than
military service. For conscientious objectors who were
non-commissioned officers or officers during their time as
conscripts, substitute service lasts 1.1 times longer than the
remaining military service²³.

Substitute service is administered by the Ministry
of Economic Affairs. It can be performed in any public or private
body that serves the public interest, such as social welfare, the
health sector and environmental protection.

After completion of substitute service, COs are
liable for ‘extraordinary civilian service’. COs may only be
called up for extraordinary civilian service during time of war or
emergency²⁴.

Since the Law on Civilian Service came into force
in 1996, the number of CO applications has been relatively stable
with approx. 2,000 per year. Since 2001, the following number of CO
applications has been made:

• 2001: 1,870

  
  

• 2002: 2,102

  
  

• 2003: 1,955

  
  

• 2004: 1,805

  
  

• 2005: 1,656

  
  

• 2006: 1,752

  
  

• 2007: 1,727

  
  

• 2008: 1,948²⁵

  
  

Decision-making by the commission could be rather
strict, which was exemplified by the case of Marino Keckeis in 2001.
His application was rejected because he failed to convince the
commission of his conscientious beliefs. He continued to refuse
military service and was sentenced by military court to five months’
imprisonment, although he repeatedly stressed that he was willing to
perform substitute service. During his imprisonment he went on hunger
strike and after three months in prison, he was released early. His
case attracted considerable international attention. In fact, Amnesty
International considered the rejection of his application to be “due
to a very limited interpretation of conscientious objection”.²⁶

Conscientious objection for professional soldiers

According to information provided by
the Beratungsstelle Zivildienst in Zürich,
the law on substitute civilian service also applies to those on the
path to becoming a professional soldiers, as long as they are still
serving time which is regarded as compulsory military service
(depending on the rank between 260 and 500 days or more).

After
this initial period, a professional soldier has a contract with the
Armed Forces and the notice periods in this contract (or the Federal
Personnel Law) apply²⁷.
This does not constitute a right to conscientious objection, but does
allow for leaving the Armed Forces prematurely, albeit with giving
several months notice.

Background

Switzerland was one of the last
Western European countries to recognize the right to conscientious
objection and provide for a substitute service outside the armed
forces. Before 1996, the treatment of COs was harsh. During the 80s
and 90s, approx. 360 COs were imprisoned each year.

The Law on Substitute Service that
was adopted in 1996 is the result of years of campaigning by Swiss
peace groups. The decision to pass a CO law was in fact made by a
referendum (In Switzerland, anyone may call for a referendum to be
held, providing that a sufficient number of signatures is collected).
In a referendum that was held in 1991, an 82.5 per cent majority
voted in favour of amending the constitution, which allowed for a
substitute service outside the armed forces. This amendment allowed
for the drafting of the law on substitute service, which was
eventually passed by the Swiss Parliament in 1995.

Draft evasion and desertion

Penalties

According to article 81 of the
military penal code, refusing military service can be punished with
up to 18 months imprisonment or a fine²⁸.

According to article 81 (3), members
of a religious community who refuse military service for reasons of
conscience and do not apply for substitute service will be sentenced
to community service, the length of which is based on the Law on
Civilian Service. Also, the conditions of the community service will
be according to the Law on Civilian Service. This article has been
introduced especially for members of the Jehovah's Witnesses.

Being absent without leave can be
punished with a fine equivalent of 180 days imprisonment. However,
during active duty the punishment is up to three years imprisonment.

Practice

Since 1996, between 41 and 110
conscripts per year refuse to perform both military and substitute
service. According to article 81 of the Military Penal Code , total
objection is punishable by up to 18 months’ imprisonment²⁹.
In practice, total objectors are sentenced on average to eight to
twelve months³⁰.

Total objectors also remain liable
to the military exemption tax, even after a criminal conviction for
their refusal to perform military and substitute service. Non-payment
of the exemption tax can again lead to fines and seizure of income.

Notes