Human Rights Committee
4 July 2017
The Human Rights Committee today concluded its consideration of the fourth periodic report of Switzerland on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Martin Dumermuth, Director of the Federal Office of Justice at the Ministry of Justice and Police, noted that Switzerland recognized that international law had immediate application domestically. In addition to having ratified several international conventions on human rights, Switzerland also had laws to promote gender equality; fight domestic violence, female genital mutilation and forced marriage; and to facilitate gender change in the civil registry. The issue of racial profiling was frequently discussed, whereas respect for human rights and the fight against racial discrimination made up an integral part of police training. Cantons regularly examined their practices in that domain. Victims of mistreatment had a possibility to lodge a complaint, which was governed by the Swiss Criminal Code.
In the ensuing discussion, Committee Experts raised the issues of police brutality, especially in the context of deportation of asylum seekers; the inadequate definition of torture; the lack of comprehensive anti-discrimination legislation; racial profiling by the police; and the absence of consultations with civil society in the drafting of the State party’s report. Other questions concerned prison overcrowding, detention of families and minors while awaiting expulsion, freedom of religion, and the potential of popular legal initiatives to undermine the country’s international human rights obligations.
In his concluding remarks, Mr. Dumermuth thanked the Experts for the dialogue, adding that the exchange had allowed the delegation an opportunity to share its experiences and to take stock of potential improvement. The delegation was interested in understanding the Committee’s concerns, which would help Switzerland improve the situation.
Yuji Iwasawa, Committee Chairperson, thanked the delegation for the constructive dialogue and detailed responses. Questions were raised about gender identity and sexual orientation, the establishment of an independent national human rights institution, racism and racial profiling, the administrative detention of asylum seekers and restrictions on their movement, prohibition of the construction of minarets and others.
The delegation of Switzerland consisted of representatives from the Ministry of Justice and Police, the Ministry of Foreign Affairs, and the Ministry of Interior Affairs.
The Committee will next meet in public on Tuesday, 4 June, at 3 p.m. to consider the second periodic report of Liechtenstein (CCPR/C/LIE/2).
The fourth periodic report of Switzerland can be read here: CCPR/C/CHE/4.
Presentation of the Report
MARTIN DUMERMUTH, Director of the Federal Office of Justice at the Ministry of Justice and Police of Switzerland, noted that Switzerland recognized that international law had immediate application domestically. It recognized several mechanisms of the United Nations with respect to individual communications. The federal strategy on human rights 2016-2019 sought to systematize that engagement. In line with the Committee’s recommendations, Switzerland had acceded in 2014 to the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of Domestic Workers of the International Labour Organization. In 2016 it had also acceded to the Convention on the Protection of Persons against Enforced Disappearances. It had also ratified two new instruments of the Council of Europe - the Convention on the Fight against Trafficking in Persons, and the Convention on the Protection of Children against Exploitation and Sexual Abuse. The Convention on the Prevention and Fight against Violence against Women was due to enter into force in the beginning of 2018. At the national level, several laws had entered into force, such as those promoting gender equality, namely with respect to the quota for the representation in public offices. The fight against domestic violence constituted another priority. In that respect, a federal law aimed at improving the protection of the victims of violence had been submitted in 2017. In addition, a report on the application of laws to protect migrants who were victims of violence was due to be finished in 2017. A new legal provision had been introduced in the Criminal Code in order to combat female genital mutilation, as well as a federal law on the measures concerning forced marriages. In order to fight discrimination based on gender identity and sexual orientation, a reform of the Civil Code allowed for a simplified procedure to change gender in the civil registration.
In March 2017, a court had for the first time condemned discrimination against a person with disabilities. Since 2014 cantonal integration programmes had envisaged measures against racial discrimination, and in 2016 the Federal Council had asked for a detailed report on anti-Semitism measures. The issue of racial profiling was frequently discussed, whereas respect for human rights and the fight against racial discrimination made up an integral part of police training. Cantons regularly examined their practices in that domain. Victims of mistreatment had a possibility to lodge a complaint, which was governed by the Swiss Criminal Code. At the same time, police misconduct was subject to disciplinary measures. The new law on asylum, which was due to enter into force in 2019, would improve the legal protection of asylum seekers. Since 2012, all the aerial deportations of asylum applicants had been monitored by the National Commission for the Prevention of Torture. In its 2016 report, the Commission had announced that the recommendations addressed to the authorities had been mostly complied with, and that certain detention facilities had been improved. Those examples demonstrated that Switzerland took its human rights obligations seriously. Nevertheless, certain challenges remained. Namely, in recent years citizens in cantons had accepted several popular initiatives which might be in conflict with international law. One such recent example was the popular initiative of 12 August 2016 - “Swiss law instead of foreign judges” – which sought to stress the primacy of Swiss constitutional law over international law. The Swiss people still had not voted on that initiative. The Federal Council was making efforts to guarantee a better compatibility of such popular initiatives with fundamental human rights. In 2009, the Federal Government had recommended that the popular initiative against the construction of minarets be rejected, due to the fact that it contravened basic human rights. The Federal Government and the Supreme Court had also several times opposed the ban of the full veil. Nevertheless, cantons were free to legislate in that matter and the canton of Tessin in 2016 had banned concealing the face in public.
Questions by Committee Experts
An Expert welcomed the number of Swiss court cases in which the Covenant had been cited. Nevertheless, he noted that some of the amendments to the Constitution had raised concerns with respect to the sweeping measures envisaged. Why were so many Universal Periodic Review recommendations rejected by Switzerland? Had Switzerland reconsidered the rejected recommendations, such as for example, access to justice and discrimination cases, and complementarity of local legislative initiatives with international obligations? Would the acceptance of popular legal initiatives jeopardize the participation of Switzerland in international treaties, such as for example the minaret ban?
As for the implementation of the Committee’s concluding observations, were relevant laws in place in different cantons to ensure the implementation of treaty body observations?
With respect to consultations with civil society, the position of the State party was ambiguous. Consultations with civil society in a State party’s reporting was an important channel of communications, and experts encouraged Switzerland to re-consider its position.
The federal system posed a challenge for the coordinated implementation of the International Covenant on Civil and Political Rights. Recourse to the Supreme Court was not sufficient to ensure systematic implementation, as there was a lack of understanding of the Covenant in cantonal courts.
Experts welcomed the new bill on the establishment of a new national human rights institution. Was it in line with the Paris Principles and were there enough resources at its disposal? Would that body be authorized to receive complaints? To what extent would it be able to stand on its own feet?
Turning to the excessive use of force by police, Experts underlined allegations of the way police brutality had been handled by the legal system. There had been unclear data on the number of reported cases of police brutality. The under-reporting was reportedly due to the precarious situation of foreigners in Switzerland. What were the best ways to address that issue? Why was the federal State unable to collect relevant data at the cantonal level? What were the numbers of investigated cases, sanctions and reparations?
Another set of allegations concerned the lack of an independent mechanism of investigation of the cases of police brutality. Were prosecutors sufficiently independent of the police and were they sufficiently accessible to concerned parties?
Another concern was the definition of torture under the Penal Law. The Committee was of the view that an independent crime of torture met internationally agreed standards. There were some concerns about the Swiss legislation, in particular with respect to mental torture. Experts sought clarification from the State party on the application of the Istanbul Protocol.
An Expert welcomed the progress made by Switzerland concerning the use of force in the process of deportation of foreign nationals. However, some concerns still needed to be addressed, such as excessive use of preventive detention and physical restraints. What was the policy regarding those, notably the use of Tasers and masked police officers? The quality of medical vetting for transfers was also cited as problematic. Why was the case on the death of Nigerian asylum seeker Joseph Chiakwa still pending?
One Expert raised questions on gender equality, noting that significant wage gaps between men and women remained. Switzerland had participated in the discussions on gender equality. However, women continued to earn notably less than men. What were the guidelines and the status of the Working Group on gender equality? In February 2016, the proportion of women in the Federal Government stood at 28.5 per cent. Had there been any measures taken to increase the proportion of women in decision-making bodies? Were there any sanctions envisaged for the companies that did not meet the target 0f 30 per cent of women in decision-making positions?
As for disability, significant progress had been allowed by new legislation on the equality of persons with disabilities. Had any conclusions been drawn from the review of that legislation? What were cantonal plans to ensure the equality of persons with disabilities? What measures had been taken to increase the knowledge of persons with disabilities of their rights?
Domestic violence remained a large problem, with many cases leading to death. Only 20 per cent were reported to the police. Why was that number so low? Were there training courses for police and judges to deal with that type of violence? There was a high number of closed cases in the area of domestic violence. What was the reasoning behind that high number?
With respect to the issue of migrant women and domestic violence, in 2009 the Human Rights Committee had expressed concern about legislation on residence permits which forced migrant women to stay with a violent spouse. The majority of victims of domestic violence in Switzerland were women. It seemed that despite the changes introduced, in many cases victims had to show the intensity of violence and to prove that violence had been systematic.
Experts welcomed the new legislative provision to punish female genital mutilation. What was the estimate of the number of cases of female genital mutilation, even when it took place in the country of origin of victims?
An Expert raised the issue of increase of racism in the political arena, especially among youth. How effective had awareness raising campaigns been? To what extent was it monitored outside the scope of the Criminal Law?
What was the position of the State party on the so-called corrective surgery on intersex children?
As for free legal assistance to migrants, in many cases people were not aware of that. Speaking of administrative detention, Experts asked about alternatives and to what extent families were separated in the process. They also inquired about freedom of movement for asylum seekers, namely about temporary admission permits which did not allow movement from one canton to another.
Experts noted that comprehensive anti-discrimination legislation was needed and that it should include the protection of the rights of migrants and refugees, especially with respect to education.
Replies by the Delegation
MARTIN DUMERMUTH, Director of the Federal Office of Justice at the Ministry of Justice and Police of Switzerland, explained that direct democracy existed in Switzerland, with its advantages and disadvantages. It was true that popular initiatives entered into conflict with international law. However, they were very abstract and it was up to legislators to find an interpretation that harmonized provisions of the national law with international law. In that respect, Parliament was currently looking for a solution on paedophilia. As for the initiative on the priority of the national law vis-à-vis international law, that debate offered an opportunity to discuss the relationship between international law and the Constitution. The Swiss Government had already spoken against that initiative and it would adopt a proposal to put across to Parliament.
The delegation reminded that the third national Universal Periodic Review report of Switzerland had recently been adopted, highlighting challenges in the areas of racial discrimination and equal pay for men and women. The report was the result of a broad national consultation process, which included the participation of civil society.
As for the issue of dissemination and implementation of the Covenant, the delegation recalled that provisions of the Covenant were directly applicable at all levels of the Federation. The Covenant was an integral part of the Swiss legal order. Therefore, Switzerland had made the necessary progress. A number of decisions had been made at the national court level, invoking Covenant provisions, which had made the Covenant more visible. It was not true that there was a lack of knowledge about the Covenant at the level of national courts. Recommendations were transmitted to competent bodies, and work was underway to improve national implementation mechanisms. In 2015 the cantons had adopted coordinating procedures with respect to reporting mechanisms.
With respect to the draft bill on the new national human rights institution, the consultation procedure would last until the end of September 2017. The new national human rights institution would be a standing and independent body under legislation, and it would have a budget of one million Swiss francs.
There were projects seeking to improve the situation of gender equality, notably to increase the quota of women in the administration, and another to provide for equal wages between women and men. The share of women in the cantonal political institutions was 24 per cent in the executive bodies and 27 per cent in the legislative bodies, and women represented between 20 and 35 per cent of senior management positions in the federal government. At the communal level, the trend had stagnated, while in federal courts there had been an increase in the participation of women. The Federal Council had set up a target of 48 per cent of women in the federal administration in 2019.
Great importance was given to the equal pay for women and men, and the Federal Council intended to review the law on gender equality, and to regularly and periodically review equal pay in companies employing more than 50 employees.
The proposed revision of the company law provided for quotas for women in governing bodies (20 per cent) and boards of directors (30 per cent) of large publicly traded companies. There were no penalties for breaches, said the delegation, but companies were obliged to explain why they had not met the quotas.
Turning to persons with disabilities, the delegation explained that the priority topic was the employment of persons with disabilities. The law did contribute to significant progress at the level of implementation, but awareness raising and training still remained a challenge. Almost 50 per cent of train stations in the country were wheel-chair accessible. There was still no global assessment of the impact of legal provisions. Measures to raise awareness on the rights of persons with disabilities needed to be improved. The reporting procedure could improve awareness raising.
The issue of racial profiling within the police was an arbitrary practice, the delegation stressed. Even when targeted searches were necessary, persons should be treated according to the following criteria: professionalism, consistent with public policies and respect for citizens’ rights, based on well-defined factual criteria and be prejudice free, respectful and balanced, and preceded by an explanation. Targeted searches could not be taken lightly and the top brass of the police should always be vigilant of how they were conducted. Ethical training was provided to police forces, and each member of the police force had to follow it. The tactical component of the training was also mandatory.
There was no data on political racism, aside from the information coming from non-governmental organizations. Switzerland had participated in several European campaigns against racism. There was a national programme on improving the participation of the youth in media, namely on the safe and responsible usage of online media because youth should have a critical view on any racist or discriminatory statements.
The Swiss anti-discrimination law did not have a special provision on sexual orientation and gender identity, but that would soon change. The draft bill aimed to ensure that anyone speaking against lesbian, gay, bisexual, transgender and intersex persons was criminally liable. As for the Government’s attitude regarding surgery on intersex children, it believed that surgery should not take place unless it was absolutely necessary from the medical point of view. The Federal Office of Civil Status had adopted official communications in 2014 seeking to ease the practice of sex change in civil status, in particular in the presence of medical documentation attesting to an error at the birth of the child, while a draft law introducing a simplified procedure for the registration of gender change in the civil registry was being drafted.
The Istanbul Convention would allow Switzerland to strengthen its measures to counter violence against women and domestic violence. Cantons were in charge of setting up shelters for victims. However, there was a lack of capacity in offering shelters in cantons. A catalogue of services offered to victims had been drawn up, said the delegation and added that the Federal Court had developed a case law on domestic violence, the delegation said.
As for the number of suspended proceedings in cases of domestic violence, indeed a 2015 study had revealed that the rate was very high. In order to remedy that situation, the Government had sent a draft bill for consultations to modify the Criminal Law. Suspension would not be initiated in cases of repeated violence. The opinion of the victim would be asked for explicitly. The police force considered interventions in domestic violence cases to be among the most sensitive cases. Police training consisted of looking for the signs to assess and identify all forms of domestic violence.
The extension of residence permits for foreign victims of domestic violence should be accompanied by the presentation of medical records and criminal records. Knowledge of the intensity of violence was a legal requirement in order to assess the type of violence perpetrated. Migration authorities had a duty to observe that jurisprudence. An explicit criminal norm against female genital mutilation had entered into force in 2011. There had been no conviction handed down as of the end of 2015. A working group had been set up in 2012 to counter female genital mutilation and to conduct awareness raising.
As for police brutality, those complaints were dealt with by the Public Prosecutor, which was an independent body. In order to counter the deviant behaviour of some police officers, very high requirements were made in terms of psychological and behavioural aptitude from police force applicants. Numerous problems had occurred when police officers faced the real situation on the ground, which was why the training had been extended. Regular evaluation of police officers was in place. Police violence started gradually which meant that monitoring at all stages had to be maintained. Management staff was trained to monitor problematic behaviour among police officers. Whenever force was used, an assessment was conducted. A police ombudsman existed in Geneva to resolve any disputes regarding police operations.
The delegation further clarified that police mistreatment was recognized and taken into account; concrete measures had been taken to address it. The work of the police in Geneva within a multicultural context was extremely different from the work of the police in rural areas. In the Canton of Geneva, sixty-six criminal complaints had been lodged against the police personnel in 2016, most of them against police officers, and two procedures for dismissal were currently pending before the courts: one for ill-treatment and one for anti-Semitic remarks.
Independence of the judiciary was guaranteed at all levels of the State, and they were ensured by five concrete guarantees: the authorities were required to open proceedings without delay in case of misconduct; victims could request action to be taken against any person suspected of misconduct; complaints could be brought directly to the Public Prosecutor; criminal authorities, including judges who found infractions, had the obligation to report it; and parties could appeal against the procedural acts of the Public Prosecutor.
As for the criminalization of torture, Switzerland had certain obligations under the Convention against Torture and it regularly reviewed in detail whether its laws were in line with the Convention. The maximum sentence for physical torture was 10 years of imprisonment. The National Commission on Torture systematically supervised only the deportation of migrants by special flights, but it also had the possibility of supervising deportation orders carried out by commercial flights.
As for the tragic death of Mr. Chiakwa in March 2010, in 2013 a decision had been taken to re-open the case, which was ongoing. Certain measures could be taken before the administrative detention of foreign nationals took place, such as the obligation to regularly register during the period of removal procedure, the assignment of a place of residence or a prohibition of entry into a specified region. The separation of the members of a family were pronounced only in exceptional circumstances. Due to criticism by non-governmental organizations, detention of families and minors who were awaiting expulsion was dealt with by a committee of experts at the cantonal level. Such detention could be ordered only in exceptional circumstances.
With respect to freedom of circulation for persons provisionally admitted to Switzerland, they could freely choose their place of residence within the assigned canton. If persons wanted to change their place residence to another canton, they had to submit a request to the relevant authorities. The final decision was made by the concerned cantons. The provisional admission status had previously led to various parliamentary interventions. The professional integration of persons admitted provisionally could be improved.
Free legal aid to asylum seekers fell under the minimal services provided by the State. In other cases, asylum seekers had to demonstrate extenuating circumstances. Free legal aid could be made available under certain conditions: in the event of indigence of the applicant, if the procedure was not without a chance of success, and if the case presented, in law or in fact, specific problems that the party could not resolve on its own and which required legal representation. In the appeal procedure, the law provided for the appointment of an ex officio representative, on two conditions only: the indigence of the applicant and a chance of success of the procedure. If these conditions were met, the appeal procedure was free of charge and the costs were borne by the State. The new law on asylum, which was to enter into force in 2019, provided for statutory legal representation free of charge and without conditions from the beginning of the procedure in the federal centres, and it also improved appeal procedures.
A person entitled to temporary admission to Switzerland (a form of subsidiary protection with a temporary residence permit, “permis F”) might choose his or her place of residence in the canton in which he or she resided, the delegation explained. If the person wished to change cantons, he or she would submit an application to the Secretariat of the State for Migration, which would consult the two concerned cantons before deciding. Recognized refugees had the right to travel throughout the country. The delegation said that Switzerland was currently reflecting on how to improve the status of persons benefiting from provisional admission.
Cooperation with civil society was generally very good in Switzerland and the Government worked in direct cooperation with non-governmental organizations. Civil society was always invited to provide its opinion prior to joining international conventions. The Government believed that it was tasked to provide replies in the State report, whereas civil society could provide their input in separate documents.
Second Round of Questions by Experts
Why was there a desire in the draft bill to attach the new national human rights institution to an academic institution? What were the additional funds to be allocated to the new human rights institution? As for acts of violence committed by police officers, what were the examples of disciplinary procedures that could be taken against police officers who overstepped their authorities? Were body cameras being considered?
With respect to prison overcrowding, there had been significant improvements in Switzerland recently, such as the establishment of training programmes for prison officers, the increase in the number of detention places, and the planning of administrative detention. However, there were significant differences among cantons in terms of the occupation rate of detention places. In addition, the separation of men and women, as well as of adults and minors, had not been strictly observed. Another issue was the care of inmates with mental illnesses. What was the current state of the relevant working group? There were still some cases of people with mental illnesses who had been imprisoned for periods exceeding their sentences. What efforts was Switzerland planning to address that situation?
An Expert observed that the Swiss law on freedom of religion was at odds with the Covenant provisions. Switzerland did not protect religious communities as such, but rather individuals who because they belonged to a certain religion were victims of discrimination. Great efforts had been made to integrate religious minorities in the country. Nevertheless, Switzerland was a victim of its own constitutional system due to the fact that popular legal initiatives were accepted, such as the one against the construction of minarets. Why was that initiative submitted to a vote without a counter-bill? Was there any measure to overwrite that article? One Expert noted that certain popular initiatives at the cantonal level could be interpreted as hostile acts towards a certain religious community.
Switzerland had made various efforts to resolve the issue of the lack of space for transit and rest for nomadic communities, such as Sinti and Roma. What was the status of the plan of action in that respect? Civil society had worked to improve the participation of ethnic minorities. What were definitive solutions in that respect?
What was the impact of the first National Action Plan on Trafficking in Persons? There was a lack of unified approach to refer victims to protection services across cantons. There was also a concern about the lack of training for law enforcement forces. How many “sincere unions” had been recognized by the Swiss authorities so far?
What were the practical steps taken by the State party to raise awareness among medical practitioners and the general public in order to prevent unnecessary genital reassignment surgery? Was there an estimate of the cases of female genital mutilation? What kind of training did judges receive on domestic violence? Were specialized teams set up to deal with victims of domestic violence?
Were there any statistics available on the number and kind of forced marriage in Switzerland? Corporal punishment against children did not seem to be excluded, particularly within family. Was the current domestic legislation sufficient to answer those concerns?
What was the root of the Government’s hesitation to introduce a comprehensive anti-discrimination legislation, as opposed to the current sectoral approach? As for the issue of reservations to the Covenant, had the State party exhausted all the avenues to harmonize national laws with the Covenant? An Expert advised the State party to revisit its reservations to articles of the Covenant and to lead by way of example in the field of human rights.
Speaking of the Federal Act on Intelligence Services of September 2016 and its compatibility with the Covenant, an Expert asked what kinds of security threats would require extraordinary surveillance. How specific should monitoring requests be? Were there safeguards in place against the collection of bulk data?
As for the Foreign Nationals Act, it seemed that cantons paid particular attention to jurisprudence. However, there seemed to be a lack of uniformity in the application of the Act’s provisions. How was it expected that refugees and asylum seekers could provide financial guarantees?
The Geneva 2008 act on events on public property required an authorization to demonstrate. What penalties had been imposed and in what circumstances for transgressions? How was that act in line with the Covenant’s provision on freedom of expression?
Replies by the Delegation
MARTIN DUMERMUTH, Director of the Federal Office of Justice at the Ministry of Justice and Police, explained that the Government was not convinced that all the requirements had been met to classify the case of Joseph Chiakwa as that of torture. That being said, the case was still under review.
The delegation clarified that the new national human rights institution was independent and it would determine its own agenda. Higher financial contributions might be provided to that institution in the future by third parties and organizations. The new bill on the national human rights institution did not deliberately make a distinction between the promotion and protection of human rights. There was a cantonal communal Ombudsman, but there had not been a federal-level Ombudsman. The Government wanted to build upon a model that in the past had yielded good results. Thus, the new national human rights institution would build upon the infrastructure and knowledge of academic institutions, but not on their staff.
In 2016 there had been 29 cases of criminal complaints against the police force on the grounds of ill-treatment. Many of them had not yet reached a verdict. In 2011 a policeman had been immediately suspended on the grounds of ill-treatment. Some 20 disciplinary proceedings were conducted per year. Police officers also could not take part in unbecoming behaviour off hours.
As for the financial guarantees that could be asked of asylum seekers during the appeals procedure, that provision could be waived under specific circumstances. With respect to foreign nationals who were victims of domestic violence, if the canton did not issue a residence permit, the person concerned could appeal. Police training on domestic violence was standardized. The Geneva police force felt that those who were foremost suitable to deal with cases of domestic violence were those who knew well the social fabric of neighbourhoods.
With respect to the figures on female genital mutilation, in 2013 there were some 14,000 women who were concerned or threatened. That was an estimate based on the prevalence of female genital mutilation in the countries of origin.
Prison overcrowding in Switzerland had often been denounced in the media. With the opening of new prisons the Government hoped to definitively resolve the problem. The discrepancy in the prison occupancy rate among different cantons would be resolved through the inter-cantonal prison sharing. The separation of men and women, and of adults and minors, was governed by the federal law. Some exceptions were made in the smallest prisons. The Working Group reported in 2016 about the needs of inmates with mental illnesses, and the Government was seeking to expand facilities for them. The Government was identifying measures to allow such inmates social reintegration and timely release from prison.
Speaking of the National Action Plan on Trafficking in Persons, the delegation explained that there was no specific budget for it. It was financed by the organizations participating in the action plan. The drawing up of a practical handbook against forced labour exploitation and trafficking, and of a national programme action to support victims of trafficking had not been completed within the framework of the first National Action Plan on Trafficking in Persons, which was why it would be tackled by the second National Action Plan 2017-2020. Minimum standards in identifying victims of trafficking were ensured across the country. Every year a week-long training was organized for police officers on trafficking in persons. The Geneva police force was cooperating with INTERPOL to look at trafficking in the context of migration.
A provision of the Civil Code intended to prevent fictitious marriages in case of illegal residence, said the delegation and explained that the examination of the conditions for the conclusion of a marriage was made on a case-by-case basis, on the basis of the principles laid down by the case-law of the Federal Court. The legal provision prohibiting forced marriage had entered into force in November 2011. “Sincere unions” was a category which allowed the authorities to examine the sincerity of marriage. A federal programme was in place to counter forced marriage and its evaluation would be released in autumn 2017.
The prohibition of the building of minarets had been rejected by the Federal Council because it violated fundamental human rights. However, the initiative had not been found illegal and the Federal Government did not propose a counter initiative because it would affect local traditions in cantons and it would interfere into cantonal affairs. Cantons recognized their own religious minorities. The prohibition of face veils had not been found to be in violation of international human rights conventions. Swimming lessons were a compulsory part of the school curriculum and as such superseded religious identity. The delegation explained that religion was also a matter of integration and co-habitation. It was not an issue that would be simply resolved by a ruling. It would be resolved through co-habitation. The cantonal level was the right level to resolve religious issues.
Corporal punishment for children was not a proper and admissible form of education. It could trigger criminal proceedings. Awareness raising campaigns had a better effect changing parents’ conduct than prohibitions by law.
Switzerland was concerned about the issue of reconstructive surgery for intersex children, and the delegation explained that the Government considered that reconstructive surgery should only be carried out for medical reasons, and the decision was deferred until the child could decide. There had so far not been any civil action or financial compensation for moral reparation following unwanted sexual reassignment surgery.
The Federal Council mandated cantons to address the issue of transit and rest places for Sinti and Roma communities. Debates had been held at the cantonal level and positive developments had taken place in several cantons where new stopping places had been opened up. The Government was taking steps to include minority representatives in various consultative mechanisms. Switzerland was in dialogue with France and Germany in order to resolve the issue of schooling for nomadic communities.
The Government would consider the jurisprudence of courts with respect to the Optional Protocol to the Covenant on Civil and Political Rights. The political context should also be considered, as the stance was that there should be strengthening of current obligations.
MARTIN DUMERMUTH, Director of the Federal Office of Justice at the Ministry of Justice and Police, noted that Switzerland was not ready to extend its international obligations, but was rather focused on strengthening the existing ones. There was a tight link between democracy and human rights. Both should be worked on in tandem.
The delegation explained that the Geneva 2008 act on events on public property aimed to place the burden of organizing protests on the organizers themselves, following previous material damages caused by public protests. The problem concerned spontaneous protests.
MARTIN DUMERMUTH, Director of the Federal Office of Justice at the Ministry of Justice and Police, thanked the Experts for the dialogue, adding that the exchange had allowed the delegation an opportunity to share its experiences and to take stock of potential improvements. The delegation was interested in understanding the Committee’s concerns, which would help Switzerland improve the situation. Switzerland, including all its cantons, sought to ensure upholding all its international obligations.
YUJI IWASAWA, Committee Chairperson, thanked the delegation for the constructive dialogue and detailed responses. He said issues reflecting the progress made by the Government of Switzerland concerned referring to the Covenant provisions in cases and judgements of the Supreme Court, and measures taken to ensure gender identity and sexual orientation. Further questions were raised about gender identity and sexual orientation, the establishment of an independent national human rights institution, racism and racial profiling, administrative detention of asylum seeks and restrictions on their movement, prohibition of the construction of minarets and others.
For use of the information media; not an official record
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