HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF SWITZERLAND


Human Rights Committee

13 October 2009

The Human Rights Committee has considered the third periodic report of Switzerland on measures undertaken to implement the provisions of the International Covenant on Civil and Political Rights.

Presenting the report, Michael Leupold, Director of the Federal Office of Justice of Switzerland, said that since Switzerland had joined the United Nations in 2002, it had been a very active member of the Organization. Switzerland had shown a very special commitment to the Human Rights Council and had played a very active role in its establishment. Switzerland had been one of the first States to voluntarily come forward in the Universal Periodic Review process, and it had accepted the majority of recommendations that had been made. Switzerland had also contributed to current efforts to reform the treaty body system and had notably committed itself to looking at the possibility of an expanded common core document complemented by specific reports to be submitted to each treaty monitoring body.

Switzerland had also ratified several important instruments since it had presented its second periodic report to the Committee, including the Rome Statute of the International Criminal Court, the Optional Protocol of the Convention against Torture and the Optional Protocol of the Convention on the Elimination of Discrimination Against Women. As for the International Covenant on Civil and Political Rights, Switzerland had been able to withdraw several reservations during the period of interest. Turning to domestic events, Mr. Leupold said that in 2005 Parliament had adopted the legal basis for a complete reorganization of the Swiss judiciary instances inferior to the federal level. The objective of this project was to reduce the excessive workload of the federal tribunal and to simplify procedures and legal avenues. Further, the new civil procedures simplified access to justice, allowing legal remedy on a daily basis.

Over the course of two meetings, the Swiss delegation answered questions by Committee members relating to a number of issues, including whether Switzerland intended to withdraw its reservations to several articles of the Covenant in the near future; why the accession to the first Optional Protocol of the Covenant was no longer on Switzerland’s agenda; how the Federal Court ensured that cantonal laws and acts were in keeping with the Constitution, and in conformity with the Covenant; regarding the need for the creation of a national human rights institution; legislation in the field of non-discrimination; the dissemination of information on the Covenant; and legislation on firearms and the link to the rate of suicide and homicide in the family.

Experts particularly highlighted their appreciation for Switzerland’s strong international action to ensure respect for human rights. The Committee should not fall into the trap to hold Switzerland to a higher level of human rights than other countries. However, Switzerland’s reservation to article 20 of the Covenant could be withdrawn with positive outcomes. It was also important that the accession to the Optional Protocol to the Covenant would occur. Experts were also struck by the fact that there was no national human rights plan in Switzerland. Further, the system for verifying consent to assisted suicide was of concern to Committee members, and there needed to be a means of ensuring that such decisions were made without any sense of compulsion. Committee members also questioned the admissibility of the initiative on minarets, tabled for voting on 29 November.

The delegation of Switzerland also included members of the Federal Office of Justice, the Federal Department of Home Affairs, the Federal Department of Foreign Affairs, the Federal Office of Police, the Federal Office for Migration and the Conference of Cantonal Justice and Police Directors.

When the Committee resumes its work this afternoon at 3 p.m. it will start its review of the second periodic report of the Republic of Moldova (CCPR/C/MDA/2).

Report of Switzerland

The third periodic report of Switzerland (CCPR/C/CHE/3) notes, with regard to equality between men and women, that since August 2002 two women have been members of the seven-member Swiss Federal Government, and the proportion of women has reached 25 per cent in the National Council. The Federal Council has also commissioned a detailed evaluation of the effectiveness of the Federal Act on equality between women and men. As part of this undertaking, all the decisions handed down on equality by the competent courts have been collected, systematically examined and evaluated. Further, since 2001 almost all the cantons have enacted measures on the protection of victims of domestic violence or are preparing to do so, and police legislation has accordingly been supplemented, codes of criminal procedure adapted, and specific laws on victim protection enacted. Other measures have also been introduced in recent years in many areas of life with a view to improving equality, combating discrimination and securing the advancement of women. The array of such tools include legal reforms, including those relating to the interruption of pregnancy and compensation for loss of earnings owing to maternity; as well as equality programmes as such, combining various activities in a single targeted policy; and funding of equality projects of State or private institutions and systematic public relations work to combat stereotypes.

The report also notes, with regard to non-discrimination in the exercise of the rights embodied in the Covenant, that the Swiss Government regards its commitment to combat racism, anti-Semitism and xenophobia as a permanent task, and it had still further intensified its efforts to combat racism during the period under review. Switzerland has also been taking an active part in the fight against discrimination and intolerance at the international level, and has, among others, co-introduced in 2002 the initiative leading to Decision 6 of the Council of Ministers on tolerance and non-discrimination. As an expression of its intention to act on the outcome documents of the World Conference against Racism, the Swiss Government also created in the Federal Administration the Service against Racism in 2001. From 2001 to 2005 the Service against Racism was in charge of managing the Fund for Projects to Combat Racism and Promote Human Rights, which had 15 million francs to support training, awareness-raising and prevention projects, among others. Further, rightist extremism in the Swiss army has been the subject of several reports and has led to the establishment of a Special Service against extremism the army. The legislation to combat racism has also been amended with article 386 of the Criminal Code coming into force on 1 January 2006.

Presentation of the Report

MICHAEL LEUPOLD, Director of the Federal Office of Justice of Switzerland, introducing the report, said with regard to major events that had occurred since the last report, in September 2002 Switzerland had become a member of the United Nations. Since it had joined, Switzerland had been a very active member of the Organization. The objectives of the United Nations Charter coincided with those of the foreign policy of Switzerland, which in particular consisted of alleviating populations in need and promoting the respect for human rights and democracy.

Switzerland had also shown a very special commitment to the Human Rights Council. The idea for this Council originally stemmed from Switzerland which had played a very active role in the Council’s establishment. As a member of the Council since its beginning, Switzerland had submitted once again its candidature for the 2010-2013 period.

In the same context, Switzerland had been one of the first States to voluntarily come forward in the Universal Periodic Review process. Switzerland had also accepted the majority of recommendations that had been made during this process. Furthermore, it had paid due attention to following-up the review process by holding a meeting with stakeholders, including non-governmental organizations, so as to take stock of this first year.

Switzerland had contributed to current efforts to reform the treaty body system and had notably committed itself to looking at the possibility for an expanded common core document, complemented by specific reports to be submitted to each treaty monitoring body.

Similarly, at the international level, Switzerland had ratified several important instruments since it had presented its second periodic report to the Committee. By way of example, Mr. Leupold said that Switzerland had ratified the Rome Statute of the International Criminal Court, the Optional Protocol to the Convention against Torture and the Optional Protocol of the Convention on the Elimination of Discrimination Against Women.

As for the International Covenant on Civil and Political Rights, Switzerland had been able to withdraw several reservations during the period of interest, thus confirming its will to ensure a complete implementation of the provisions of the Covenant. The reservations which had been withdrawn had related to the assistance of a lawyer free of cost; the assistance of an interpreter in judiciary procedures; the separation of young detainees from their parents; and the possibility to have recourse to a judiciary judgment.

Regarding domestic events, Mr. Leupold said that he would limit himself to a few legislative projects. After many years of debate, in 2005 parliament had adopted the legal basis for a complete reorganization of the judiciary instances inferior to the federal level. The object of this project was to reduce the excessive workload of the federal tribunal and to simplify procedures and legal avenues. Important changes had occurred with the unification of civil and criminal procedures. Separate laws governed procedures applicable to minors. The new civil procedures simplified access to justice, allowing legal remedy on a daily basis. They would also contribute to transparency and enable unified jurisprudence. This judiciary procedure would enter into force on 1 January 2011. Switzerland had also adopted a law to eliminate inequality which affected persons with disabilities and same-sex couples, also allowing the latter to legalize their union. Switzerland had also adopted a new law on transparency and the regulated usage of police constraints, especially to guarantee the principle of proportionality.

Answers to Written Questions Submitted in Advance by Experts

With regard to the written questions that had been submitted in advance by experts, Mr. Leupold said that these questions were very complex, and that he was not able to give complete replies here. As for the question on whether Switzerland intended to withdraw its reservations to articles 12, paragraph 1, 20, 25 (b) of the Covenant in the near future, Mr. Leupold said that Switzerland could not withdraw its reservations unless it was possible to make the necessary changes to legislation. No change to this was foreseen at this time.

With regard to the question on why the accession to the first Optional Protocol was no longer on the agenda of Switzerland, Mr. Leupold said that for 35 years Switzerland had been subject to control mechanisms by the European Convention of Human Rights. However, troubled by some challenges to this Convention, Switzerland had been very active in finding appropriate solutions, and it would be organizing an event on this in the near future. Within the Universal Periodic Review framework, Switzerland had voluntarily committed to looking into the possibility of accessing to the Protocol.

As for the question on how the Federal Court ensured that cantonal laws and acts were in keeping with the Constitution, and in conformity with the Covenant when applying article 191 of the Constitution, Mr. Leupold said that the answer was rather technical. However, they should be reminded that this article of the Constitution did not stop the competent authorities from general monitoring.

With regard to the enquiry on whether Switzerland had established a mechanism to achieve coherence and concordance of cantonal and communal policies, Mr. Leupold said that in Switzerland the federal system was a true political culture. This meant that the defense of local specificities was a virtue. Several instruments allowed for harmonious cohabitation. According to the Constitution, cantons were sovereign, and the Federation could only act in areas where competence had been attributed to it, but cantonal constitutions must be approved by the federal parliament.

As for the question relating to the creation of a national human rights institution, in 2007, a Working Group had been established to examine the need for such an institution. This Working Group had submitted its report in May 2008 and it was clear that there were different opinions regarding the appropriateness of a new institution. A pilot plan, where one or several universities would create a centre of competence, was suggested and was approved in July this year.

As for the application of the Covenant at the level of cantons and communes, the periodic reports of Switzerland were available on the Internet. It was also expected that the Federal Office of Justice would publish the recommendations of the Committee in the three official languages.

On whether action had been undertaken with regard to a federal law prohibiting discrimination in all spheres, including in the private sector, Switzerland had adopted provisions regarding racial discrimination and elimination of inequalities regarding persons with disabilities. A federal law prohibiting discrimination in all spheres was however not necessary in these circumstances.

As for the inquiry relating to combating the stigmatization of foreigners, the delegation emphasized that the term "stigmatization" was not appropriate to refer to the situation of foreigners in Switzerland. Measures were currently implemented in this regard, an initial evaluation had been conducted and intermediate results would be submitted to the Human Rights Council. Among the cantons and communes there were differences regarding standards and measures, and it was thus at these levels that efforts for integration needed to be anchored.

As for the question on the extension of residence permits of migrant women who had been victims of domestic violence, the Swiss delegation said that new rights had been introduced for foreign spouses. Swiss law also ensured that no person who had undergone domestic violence must leave Switzerland if the person could not reasonably go back and start life again in the country of origin.

With regard to legislation on firearms and the link to the rate of suicide and homicide in the family, the delegation said that Switzerland had revised its firearm legislation on two occasions during the last two years, and Swiss legislation was now consistent with current European policy.

Oral Questions by Committee Members

An Expert said that he appreciated Switzerland’s strong international action to ensure respect for human rights. Switzerland had a good reputation regarding human rights, but he was surprised by the large number of reservations made by Switzerland to the Covenant. Currently, reservations existed to several articles, and all of these reservations were enforced. As for article 20, for example, they could not sweep away the principle of general international law; article 20 obliged State parties to adopt laws. Article 20 was particularly important because of its substance. What were human rights, and what became of them if they were to be propaganda for war, the Expert asked, also asking what would happen if this was not sanctioned by law. The Committee member had doubts about the admissibility of Switzerland’s reservation regarding article 20, and would be pleased if the delegation could provide further information on this.

On article 26, why was it necessary to keep the reservation to article 26? This reservation was bothersome. Further, ratifying the Optional Protocol of the Covenant was not on the agenda of Switzerland, which was a pity. Why had this not been done?

As for the implementation of the Covenant in cantons and communes, regarding the languages concerned and hence the accessibility of the Covenant, Rumantsch was quite a wide-spread language and one wondered whether it would not be possible to translate the concluding observations into this language? As for the coordination between federal and cantonal authorities, was there a coordination mechanism between these concerning the implementation of the concluding observations of the Committee, and how did this happen specifically, the Committee member further asked.

Another member of the Committee said that, regarding the dissemination of human rights information, he was struck by the fact that there was no national human rights plan in Switzerland. Were there prospects for putting in place such a plan, and did this already exist at a cantonal level? Were there vigorous efforts to ensure that people at a local level were well aware of their rights?

As for national human rights institutions, the expert said he would appreciate if the Swiss delegation could give a sense of what was wrong with national human rights institutions; could they say what their consultations indicated was bad about these institutions? And had Switzerland taken good account of international experience in this field? Regarding the pilot project with universities, universities could only deal with a small part of the activities in the area of human rights. Therefore, why had Switzerland opted for the university option?

As for the question relating to weapons in the community, with regard to the military use of weapons, as ammunition would soon be completely removed from communities, the expert asked whether there still was a justification to store guns at home. Further, could Switzerland take account of the purpose for which weapons were used when granting weapon permits, and did it conduct enquiries for the legitimate purpose for which a weapon was used? Furthermore, could Switzerland confirm that it kept an arms registry, the expert further enquired?

Another Committee member said that it seemed that Switzerland had a real problem with the treatment of foreigners. It was also regretted that Switzerland did not seem to think that legislation which reinforced human dignity by outlawing discrimination had not been done. The Swiss delegation had also attempted to give concrete examples of measures taken, but there was limited information in some regards. For example, in paragraph 31, priorities were listed, but it was not stated what these priorities contained. What was happening in practice, the expert wished to know?

There was also an interdiction of some marriages by a Swiss law dating 25 May, but the right to marry of those of appropriate age should be recognized. It seemed that this law violated the International Covenant on Civil and Political Rights, and that the people behind this law did not look in detail at what the obligations in the Covenant were.

To protect, and particularly to protect those in greatest needs, was one of the obligations under the Covenant. However, those that were denied application for asylum or residence permits but stayed in Switzerland did not enjoy the most basic rights. There was the suppression of the most basic coverage, and there was a need that they had the basic rights. This was a great failure to promote human rights; this issue was the right to life.

As for domestic violence, it was not the intention of any State to be complicit in the perpetuation of domestic violence, but the current conditions in Switzerland would make a number of women fearful to lose their residence permit. It was impossible for the Government of Switzerland to monitor this situation. This would only be possible for non-governmental organizations. If concerned women did make a complaint, they were at risk of losing their residence permit.

Another member of the Committee said, regarding Switzerland’s reservations, that she wondered at Switzerland’s reservation at article 26. Why did Switzerland need this reservation? An expert also said with regard to Switzerland’s reservations that he was not satisfied by the response of the delegation. He was surprised that a State as Switzerland was reluctant to ratify the Optional Protocol, and he hoped that by the time of the examination of Switzerland’s next periodic report, Switzerland would have done this. As for paragraph 25, there were no details on the implementation of cantonal courts of the Covenant, and this would be good to know. Further, what did the Swiss authorities intend to do to protect migrant women against domestic violence?

Answers by the Delegation

Responding to the questions asked, the delegation said, with regard to the issue of Switzerland’s reservations, that when Switzerland had ratified the Covenant, it had presented eight reservations, and four had been withdrawn. As for the four remaining reservations, it was significant that three of them had to do with the European Convention for Human Rights. It was possible that the ratification of the additional protocols on elections by secret votes and freedom of movement would be examined in greater depth.

On article 20, there were several provisions in the criminal code and constitution. For some time, specific criminal provisions prohibiting torture had been contemplated. There were no specific provisions, but a series of provisions that covered the issue. Therefore, maintaining the reservations was not a total gap in these regards, and there was no urgent need to change the reservation regarding article 20. As for article 26, the reason for the reservation was to have a system that was comparable to the European Convention. It was not the word "other", discussed earlier, that caused concern.

Regarding the accession of Switzerland to the Optional Protocol to the Covenant, the delegation said that there were no legal obstacles in this regard. Switzerland did not fear another control mechanism out of fear that the Committee could observe that there was a violation of the provisions of the Covenant. There were more political than legal reasons that motivated Switzerland not to ratify the Protocol.

As for the legislation on non-discrimination, the Swiss delegation said that Switzerland’s position on non-discrimination was that the principles of law present in Switzerland covered these cases. The legal concepts existed, as did the legal tools, and this was why Switzerland believed that the conditions were sufficiently met and that there was no need to legislate further in the field of non-discrimination.

The delegation also said that in the Swiss system there was concrete monitoring, and when a court found a violation, the formal decision was limited to the particular case, but de facto the result was general. As for the cantons, there was both complete and abstract control. If a court did not apply an international rule then the commitment would be questioned.

With regard to the national human rights institution, the delegation said that over the last eight years there had been a lively debate on this issue and the Federal Council had mandated the Foreign Affairs Ministry to conduct broad consultations. In 2007, a Working Group was established with a view to shed light on the need for a national human rights institution. Several participants were of the view that it was necessary to conduct a pilot phase rather than to establish a full-fledged national human rights institution.

On the dissemination of information on the Covenant, the recommendations of the Committee were disseminated in French, German and Italian. Regarding the information on the Covenant and how this was made available to the population, the provisions of the different treaties and the guarantees contained in them were well-known and hardly needed to be invoked before the courts. The concluding observations of the Committee were sent to all cantons.

On the issue of translations for the Rumantsch speaking minority, the delegation said that all Rumantsch people were perfectly bilingual and that there was no information that escaped the notice of the Rumantsch population.

As for Switzerland’s legislation on weapons, the Swiss delegation said that the military custom of keeping fire arms at home was necessary for the obligatory shooting practice which each Swiss army soldier had.

With regard to the enquiry on specific measures on non-discrimination of foreign populations, Mr. Leupold said that there were no results available yet for the years 2008-2011. As to integration in general, it was always difficult to assess the impact of such programmes. In the written replies, much information on this issue was provided on what the cantons were doing individually. Since 2001, there was also a tripartite conference on integration, and in 2009 this conference made several recommendations to integrate foreigners. Other members of the Swiss delegation said that there was a belief that the situation must be improved. There were also good experiences working with the cantons. The monitoring of racist activities in Switzerland was also planned. As for legal measures against discrimination, the second book on this issue had been published recently.

 

 

 

Further Oral Answers

The Swiss delegation said that the new law on foreigners provided for the withdrawal of the right of residency in the event of the dissolution of the marriage. As for fears of divorced foreign women who did not wish to lose their residency permit, there was a basic mechanism in place in this regard. There was also a whole range of legal means, meaning that foreign women who did not wish to stay with their partner just to keep their residency did not have to do so.

As for the marriage of persons without legal residence in Switzerland, there had been a restriction established, and the Federal Council was of the view that this was admissible. The new law of June 2009 however needed to be implemented on the basis of facts.

On assisted suicide, two reports had been issued on this subject, looking in detail at a number of issues relating to this subject. In June 2009, the Federal Council also carried out a first initial debate on this subject.

On asylum-seekers, a difference needed to be made between ordinary and extraordinary requests for asylum. Regarding ordinary requests, when the first or second request was made, the procedure was free. As for extraordinary procedures, such a procedure could only be used after the definitive closing of an ordinary request. In the case of reexamination, since 1 January 2007, authorities could request fees to be paid in advance to a maximum of 650 Swiss francs. The fees were only imposed in cases where there was suspicion of an abuse of the system.

On the provision of the Swiss Penal Code regarding imprisonment for life, the law also provided for a periodic review, meaning that the perpetrator could ask for a new review of the extent to which he or she presented a danger to society. There was also an examination of perspective. The process focused on the perpetrator as an individual.

On the question regarding the percentage of foreigners in Switzerland, the delegation said that in 2000 the percentage of foreigners was 19.3 per cent, in 2005 it was 20.3 per cent and in 2008 21.4 per cent.

On the practice of forced sterilization, the Federal Council had not promised measures aimed at compensating victims of forced sterilization in the past. This was particularly rejected for practical reasons. It would also have been difficult to identify victims years after and to clarify whether or not there was consent to this fact.

Further Questions to the Swiss Delegation

An Expert said with regard to the reservation to article 20, the Swiss criminal law did include a number of provisions which could be implemented relating to incitement to hatred and war propaganda. The reply given by the Swiss delegation was that there was no overarching need to lift the reservation. Logically speaking, the Expert said, the reservation to article 20 could be withdrawn with positive outcomes. As for article 26, there was a difference in scope among the Swiss criminal law and the Covenant, with the latter having a broader scope. Despite Switzerland’s progressive legislation, there remained a number of problems in this regard.

As for accession to the Optional Protocol to the Covenant, Switzerland said that there were no legal obstacles to this. The Expert said that it was therefore important that the accession to the Optional Protocol to the Covenant would occur.

On the question of compatibility, regarding the Federal Law, an Expert asked whether it was going to cease being used. Also, was it possible to know more on the relationship between the Federal and cantonal authorities, the Expert asked. Moreover, with regard to feed-back and follow-up, was there a special procedure allowing the Federal authorities to ensure that the observations had in fact been observed by the cantonal authorities?

Another Expert said that the delegation of Switzerland seemed to use suicide and euthanasia in the same breath – what was the difference between the two? Furthermore, what safeguards existed on the issue of consent, how did this have to be manifested, and was it ever done without overt consent? And why was a third party not allowed to ascertain that consent was really given?

As for the information provided on a national human rights institution, another Expert said that the Committee had still not heard what was wrong with this. Regarding the pilot project, was the timeline really as had been indicated? As to forced sterilization, the Expert remained concerned about the support provided to victims today. But why did so little efforts appear to be made? Public apology for example could be of great benefit. Further, there was a need for psycho-social services – why had this issue not been looked at? On the issue of guns, why did Switzerland not have a national register of gun owners? Cantonal gun registries were not enough in this regard.

Another Expert, on assisted suicide, said that there was a State obligation to protect life, which raised issues of consent and machinery. The system for verifying consent was of concern to this Committee member - there needed to be a means of ensuring that such decisions were made without any sense of compulsion. It may also be necessary to encourage concerned persons to reconsider their position. How did the State live up to its obligations to protect life, the Expert asked.

Further Oral Answers

In response to these questions, Mr. Leupold said, regarding reservations, that Switzerland withdrew from reservations only when it was very convinced that Swiss legislation was entirely compatible with the Covenant. Only if complete consistency was seen was a reservation withdrawn. During the Swiss Presidency of the Council of Europe, the idea was that several instruments would be subjected to a more in-depth review. Depending on the outcome of these discussions there may also be some influence on the reservations, as they dealt with the same issues. As to the ratification of the Optional Protocol to the Covenant, Switzerland agreed that there was no legal obstacle, but the time was not yet ripe to do so.

Regarding Switzerland’s provisions for the marriage of persons not legally resident in Switzerland, the delegation said that if such persons married abroad this would be recognized by Switzerland.

On assisted suicide, Mr. Leupold said that this was a process that was currently ongoing; the Government was once again examining this issue and the decisions were pending. Another member of the delegation said, with regard to the difference between suicide and euthanasia, that suicide was the act of killing oneself while euthanasia was a kind of "homicide", namely a third party who gave the person some dose so that the person would die. On the idea of assisted suicide, there was the medical aspect, namely that this measure could only be used by a doctor. There were also directives in this regard and the whole process needed to be overseen. If there was a suspicion about the abuse by the doctor, further measures at cantonal level were taken.

As for the register of weapons and firearms, the Swiss delegation said that it was true that there were cantonal registers, because previously control of arms was the task of cantons. But it was not true that individuals could purchase arms in different cantons; a request for the purchase of a firearm could only be made in the canton in which a person resided.

On institutionalization of human rights, a very in-depth consultation had been conducted when the Federal Council created a Working Group on this issue. Many specific questions were discussed. During consultations, opinions were very varied. Responses from the university sector were expected for the second half of 2009.

Further Oral Answers to Written Questions Submitted in Advance by Experts

On measures undertaken by Switzerland to encourage all cantons and communes to create independent investigation mechanisms, such as the one established by the Canton of Geneva, Mr. Leupold said that in Switzerland justice was independent at all levels. For this reason, many cantons were of the view that it was not necessary to establish particular mechanisms to examine allegations against the police. The concerned individuals could also report the facts to the oversight body.

As for minorities in the police corps, it was currently possible in several cantons that persons who were not of Swiss nationality could be in the service of the police. In other cantons, discussions on this issue were still ongoing. However, it was absolutely legitimate to insist on the fact that members of the police had Swiss nationality as the exercise of the work of the public force was directly linked to a particular loyalty towards the State. Further, recruiting police staff with a foreign nationality was not the only way to ensure that minorities were represented within the police corps. It was also important that police staff knew well the country and its languages.

On the use of stun guns or tasers, particularly during the forcible removal of foreigners, the law that had entered into force at the beginning of this year authorized the use of "tasers". The provisions of this law had been made specific by an ordinance of the Federal Council, detailing which measures could be used for which actions. The use of tasers was not permitted for the forcible removal of foreigners. More generally, as was also the case for firearms, the use of tasers was subject to strict restrictions, and in some cantons their use was limited to special units within the police corps.

As to the conditions of persons deprived of their liberty, and especially on overcrowding in prisons, many cantons were in the process of adopting measures, or had already done so, to provide for sufficient places and to ameliorate the conditions in detention facilities. In most of the cantons prison overcrowding was no longer an issue.

On whether free legal assistance was granted to asylum-seekers, especially to those who appealed against a refusal of asylum, the Swiss delegation said that in principle free legal assistance was available to asylum-seekers. Free legal assistance was provided under the condition that the person did not dispose of sufficient resources. Special regulations applied to minors who were non-accompanied asylum-seekers.

As for housing of asylum-seekers, particularly those whose application for asylum was under reconsideration, Mr. Leupold said that in many cantons asylum-seekers were not displaced if their request was rejected, and they could remain in the home they had occupied during a possible further reconsideration procedure. Other cantons further had in place special centers for specific types of asylum-seekers, but also allowed families and non-accompanied minors to remain in the home they had occupied during the possible further reconsideration procedure.

On military service exemption tax on male citizens who did not do military service, and the compatibility of this measure with article 18 of the Covenant, the delegation said that the amount of the tax was determined depending on the duration of the military service and replacement service. Switzerland was of the view that this tax was not in conflict with article 18 of the Covenant. Switzerland did not aim to limit the liberty of persons who, for reasons of belief, were not able to complete a military or civil service.

As for information on any initiative that would limit freedom of religion, Mr. Leupold said that a "referendum on the construction of mosques", as referred to in the question, did not exist in Switzerland. However, an initiative that dealt with the prevention of minaret construction had been tabled for vote on 29 November. This was the only pendant initiative at the Federal level which perhaps aimed at limiting the freedom of religion. The Federal Council however was of the view that the message of the initiative was an attack on several human rights and had therefore proposed that Parliament rejected this initiative. The two parliamentary Chambers had followed this recommendation.

On the prevention of sexual abuse of children, different measures of prevention had been adopted by the Confederation and the cantons. In 2005, the Swiss Federal Office for Social Welfare had published a report on the prevention of violence against children, and it had also established an association which would be active in this field. The association would implement a national programme for the protection of the child as of 2010. The association’s activities would comprise needs evaluation, coordination among different actors, financial coordination and project evaluation. Cantons had also implemented a number of programmes and measures to protect children against sexual abuse. Further, mechanisms had been established so that cases of ill-treatment were recognized and reported by people working with children.

Further Questions

An Expert said that, in a quest for perfection, the Committee should not fall into the trap to hold Switzerland to a higher level of human rights than other countries. As for the need for separate mechanisms regarding police violence, it seemed that there was a reluctance to hold up the Geneva model as a benchmark. Was there a genuine will of the Federal Government for a good model of separate institutions? Regarding stun guns and tasers, had any studies been undertaken regarding the risks and dangers of these?

Another member of the Committee asked who decided whether the case of an individual asylum-seeker had likelihood of success. Further, was there a possibility for non-governmental organizations to give advice to asylum-seeker centers? Further, was it correct that Switzerland had legislation that minors could be detained up to 12 months, and was it generally the case that minors were kept longer than adult asylum-seekers?

As for the discrepancies between civil and military service, was it indeed the case that those who completed civil service must service one-and-a-half times the duration of those completing their military service? And if this was the case, was this not discriminatory regarding article 18 of the Covenant, namely discrimination on religious grounds?

As for the initiative on minarets, what should be done with referenda which were incompatible with the Covenant? Regarding a political party’s desire to publish very cynical political posters, what was the permission process in this regard, and how did Switzerland ensure compliance with article 19 of the Covenant, the Expert asked. Furthermore, how was consistent application of best practices across the cantons in the area of child protection ensured?

Another Expert asked whether Switzerland really tracked incidents of discrimination, and was there education in this regard? She was also concerned about the position of Geneva officials regarding several major anti-Semitic discriminatory events that had occurred recently.

Another Committee member said that he questioned the admissibility of the initiative for vote on minarets on 29 November. A significant number of towns and municipalities had banned posters on this initiative, but why let towns and municipalities each determine their position on this? This ought to be a federal competence on the basis of article 19 of the Covenant; the problem was one of federal and not of cantonal or municipal competence.

Further Oral Answers

On the treatment of allegations of ill-treatment by the police, the Swiss delegation said that it was not only in eight cantons that statistics existed in this regard. There was an annual report on the statistics of this in all cantons. The police took the issue of human rights very seriously and these rights were tackled in basic training and ongoing professional training.

On why there was no enquiry mechanisms, and why the mechanism of Geneva was not rolled out across the State, the delegation said justice in all cantons was independent, and several cantons believed that there was no need and place for such specific mechanisms. It was true that the mechanism of the canton of Geneva worked well, but in the other cantons there was the guarantee that enquiries were treated in an independent manner.

As for the issue of police forces, the Swiss delegation said it could not give exact figures on the foreigners among the police corps. However, there were indeed minorities working in the Federal Police Office.

On independent observers, there was a Shengen directive requiring people to introduce an oversight body. This was a directive being debated now and which would be dealt with by the Parliament by the end of this year by the latest.

As for the forcible removal of foreigners and the use of stun guns, the Swiss delegation said that cantons made very restricted use of stun guns. There was currently legislation requiring cantons who used tasers to respect minimal standards. Further, stun guns may only be used under the principles of proportionality. Regarding any studies that were carried out in this regard, the delegation said that there was no such study. However, when taking the decision to use stun guns, there was a request for a study on this issue to be presented to Parliament two years after the implementation of this law.

On asylum-seekers, the delegation said that on the free right to a public defender, a professional could take up this role – it did not have to be a non-governmental organization. The Federal Immigration Office had to make asylum-seekers aware of their right to have legal assistance, and to provide asylum-seekers with the means to establish such contact, which must be provided on a free basis. A personal interview might then be necessary after this initial contact.

As for the detention of children asylum-seekers, that detention was the last resort. For children between 15 and 18 detention could not exceed twelve months in total.

On prevention of sexual abuse, the Swiss delegation said that specific statistical data would be available as of next year. Regarding police database, there was a national and an international database.

Regarding the question on the dissemination of information on the guarantees of the Covenant, Switzerland published the State reports, also posting them on the website of the Department for Foreign Affairs. On the general dissemination of information on the Covenant, this was part of the teaching curricula of universities.

On the duration of military service compared to civil service, the Swiss delegation said that military service was the default and civil service was the exception. The latter thus required specific justification.

As for the revision of the asylum-law and conscientious objection to military service, the Swiss delegation said that the matter related to an initial bill amending the asylum-law. At this stage it was not possible to say whether the bill would remain. Further, it was the legitimate right of a State to pursue an offence under common law.

As for the question on the popular initiative against national popular law, the Swiss authorities deemed that this initiative did not violate jus cogens. It was quite clear that an initiative could not be invalidated because of contradictions with other constitutional rights. On the possible consequences of an acceptance, the Swiss delegation said that the Federal Council trusted that the initiative would be rejected, so the problem could, at least at the moment, only be posed in theory. What could happen in practice was a very sensitive matter. If the case would arise, it would be up to the courts, and it would have to be dealt with in court.

On the poster campaigns for the initiative against minarets, it was local authorities that had competence; the Confederation had no competence in this regard. The authorities had different views on whether the posters were discriminatory or not, and it was up to courts to enact any prohibition or bans.

On racially motivated incidence, all acts of discrimination were taken very seriously. There was, since several years, a commission against racism. As for anti-Semitism, Swiss authorities worked very closely with Jewish organizations in terms of prevention.

On the repatriation of foreigners to their countries of origin and countries that were unwilling to reaccept their citizens, Switzerland always sought solutions at the international level.

Concluding Remarks

In his concluding remarks, Mr. Leupold said that he wished to express his heartfelt thanks for the questions which were very interesting and in-depth. He said that Switzerland would provide additional information, particularly regarding enforced sterilization and on minorities in the Swiss police forces, within the given timeframe.

 

 

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For use of the information media; not an official record