Concerning the seizure and extradition of Swiss Citizens:
On June 19th, 2014 at 11:45 am, the Swiss Federal Court had a public hearing. On the bench were 5 federal judges along with a clerk of the court with advisor status. Another 25 people were present, among them people from the Higher Cantonal Court of Bern, the KESB [the Swiss Social Services], along with 3 of our friends, our daughters Hannah, Havah, as well as our lawyer and a colleague.
This is a follow-up to the post, “For whom does the bell toll?“
Federal Judge W. (president of the second civil section) spoke first. In his presentation he pleaded for the federal court not to take on our appeal. His points were very technical. He quoted the Hague Conventions HKSÜ, art. 5, par. 1, 7.1. He pointed to the fact that before the temporary order of September 5th, 2013, Merea and Eva Krumbacher’s habitual address was in Germany per District Court of Ansbach, and therefore according to international law (HKSÜ) it was only in Germany’s jurisdiction, and the federal court was therefore not responsible.
Next came Federal Judge S. who gave a counter presentation and demanded that the federal court take our appeal on. He was committed and personal. He even mentioned being the father of three children. His explanations were the only ones which were not so technical, which we found to be clear and comprehensible. He pleaded for taking the appeal on, because he distinguished between the international treaty (Hague Conventions) and the Swiss Federal Constitution (Art. 25, which states “no Swiss citizen may be extradited to another country against his will.”)
In doing so he placed the federal constitution above the international treaty. Also, Judge S. emphasized that the HKSÜ does not rule out the possibility of Swiss courts reviewing the concrete situation. In this case the temporary measure to seize and extradite our children was really a measure of execution because it cannot be corrected.
This creates a space for state despotism because in the seizure and rush to the border no court review was possible. The parents were confronted with a fait accompli.
(From French, meaning an accomplished act, an irreversible accomplishment.) This is how the Jugendamt has always dealt with us since 5 September 2013, without communication, without consideration, and without appeal.
Mrs. Federal Judge E. spoke briefly and formally. She pleaded for not taking the appeal on, even though indirectly she reproved the KESB and pointed out that there must be legal protection for parents.
Federal Judge M. pleaded for not taking the appeal on, even though he did consider some arguments as important. Eventually, the argument that the case was a temporary measure, which can therefore not be contested, prevailed with him. He points out that the appellant could have filed an appeal for a delay of justice.
(When could we have done this? During the chase to the border, perhaps? Would the courts have heard our plea on Friday afternoon from a cell phone?)
Federal Judge H. was committed and agreed with Judge S. on some points, but did not think it was all right from a formal point of view for the federal court to stand up for our cause.
Federal Judge W. re-emphasized that the federal court is not competent with regard to content and that according to the HKSÜ the German courts have jurisdiction.
Federal Judge S. questions once more the temporary measure in the case of the extradition of our children. He said that it was not a temporary measure, i.e. it was not a provisional measure but a measure of execution. An execution cannot be compensated. The dead are dead.
A temporary measure can be compensated. The content of the measure is important and has to remain correctable. Example: if in the way of a temporary measure a death sentence is pronounced and executed immediately, then it is not correctable and therefore not a temporary measure but a measure of execution.
After all, the KESB could say, “The matter is taken care of as far as we are concerned if we deport the children.”
This is state despotism because they act without any check by a court, without hearing from the parents or the children. The parents and children then have no voice, only their cries to the policemen who see themselves as having no authority to contravene the directions they have received…about which the parents had no time to appeal.
Justice, the rule of law must be preserved. There must be a way for us to work this matter out through the court system. The citizen must have a way of defending himself through the court system. Legal protection must be preserved. How can we guard over this legal protection?
Federal Judge M. said that the temporary measure needs to be converted into an ordinary measure, and this is in the jurisdiction of the lower courts.
The President and Federal Judge called upon the federal judges to cast their votes.
4 federal judges vote for the federal court to not take on the appeal.
1 federal judge (S.) votes for the federal court to take on the appeal.
The decision is 4 vs. 1 for not taking on the appeal.
Thus we were dismissed.
According to the lawyer, we will be mailed the written decision with the reason in about one or two months.
Therefore now the main court-hearings will start – beginning on the Swiss lower courts and eventually reaching the Federal Court again.
Ohevi and Rachel Krumbacher