GE.17-11624 (E) 110917 200917
Human Rights Council
Working Group on the Universal Periodic Review Twenty-eighth session
6-17 November 2017
National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21*
Switzerland
* The present document has been reproduced as received. Its content does not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations.
A/HRC/WG.6/28/CHE/1
General Assembly Distr.: General 11 July 2017 English
Original: French
I. Methodology and consultation
1. Human rights lie at the heart of the political system of Switzerland, based as it is on democratic principles, non-discrimination, gender equality, peaceful coexistence and mutual respect among population groups of different religions, languages, ethnicities and cultures.1 Respect for human rights requires the State to exercise responsibility towards the population and, generally speaking, to subordinate its own interests to the interests of the people. The Swiss legal order, which is enshrined in the Federal Constitution of 1999 and in its international obligations, including those arising from the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) of 1950 and United Nations conventions, is the embodiment of this principle, in that it explicitly protects the human rights and fundamental freedoms of every individual in the country.
2. It is against this backdrop that action is taken to implement the recommendations accepted during the universal periodic review. In its second national report (4 July 20122), Switzerland described the measures that it had adopted to implement not only the recommendations that it had accepted but also its voluntary commitments. Unless specified otherwise, the observations made in the 2012 report on the Swiss regulatory, institutional and political framework are applicable also to the present report, as regards both general and particular issues.
3. The report seeks to follow the guidance note of the Office of the United Nations High Commissioner for Human Rights for the third cycle of the universal periodic review, and in the order in which it addresses rights and freedoms it follows the structure of the Universal Declaration of Human Rights. It describes the implementation of the recommendations accepted during the second cycle of the universal periodic review,3 which Switzerland went through on 29 October 2012.4 Most importantly, it sets out the steps that have been taken in this regard, at the same time providing an account of relevant developments in the field of human rights on certain topics not covered under specific recommendations.5
4. Discussion of this report, in the spring of 2017, involved a broad consultation process that included the cantons, extra-parliamentary federal commissions, civil society and sectors with an interest in the report, as well as a round table held on 23 March 2017, bringing together these stakeholders and the relevant government departments. The process set in motion by the universal periodic review has thus made possible greater discussion of human rights issues among the different departments and between the authorities and civil society, thereby helping to enhance follow-up to the implementation of the recommendations accepted during the first two cycles of the universal periodic review.6
II. Regulatory and institutional framework
A. Regulatory framework
5. Switzerland has stepped up its efforts to ratify international instruments in recent years,7 acceding to all the conventions that it had undertaken to accede to during the first cycle.8 As regards the second cycle, Switzerland acceded to the Convention on the Rights of Persons with Disabilities9 on 15 April 2014 and to the International Convention for the Protection of All Persons from Enforced Disappearance on 2 December 2016.10 In addition, on 12 November 2014, Switzerland acceded to the International Labour Organization (ILO) Domestic Workers Convention, 2011 (No. 189).11 On 24 April 2017, Switzerland also acceded to the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.12 The Optional Protocol will enter into force for Switzerland three months after the deposit of the instrument of accession — namely, on 24 July 2017.
6. On 30 October 2013, Switzerland notified the Secretary-General of the United Nations of its decision to withdraw the reservation that it had made to article 16 (1) (g) (same personal rights as husband and wife) of the Convention on the Elimination of All
Forms of Discrimination against Women upon its ratification thereof.13 The remaining reservation made by Switzerland, which relates to marriage law,14 involves only a limited and ever-smaller number of marriages of a particular status entered into before 1 January 1988, the date of the entry into force of the new matrimonial regime.15 In general, Switzerland is constantly keeping under review the possibility of withdrawing the reservations that it made upon the ratification of a number of conventions.16
B. Institutional framework
7. On 28 June 2017, the Federal Council began the process of consultation on the draft bill to turn the Swiss Centre of Expertise in Human Rights into a national human rights institution in conformity with the Paris principles.17 As with the pilot project on the establishment of the Centre itself, the plan is that the national human rights institution will be based in a university and will receive the necessary funding from the Swiss Confederation. The difference from the plans made for the Centre is that the Federal Council’s decision provides for a lasting solution with a legal basis and the institution should be able, under its mandate, to decide freely to address the themes or issues that it considers relevant.
8. The issue of appointing an ombudsman was given thorough consideration in the run- up to this decision, but the Council decided not to make such an appointment.18 There were several reasons for this. For one, Switzerland has an extensive system of legal protection and other means of providing access to justice for persons in vulnerable situations, including free legal advice and aid. For another, a number of cantons and cities already have the equivalent of an ombudsman.19 Lastly, the ombudsman model would lead to costs significantly higher than those of the option that was chosen.
9. Most cantons have equality offices, although since 2015 the cantonal and municipal offices have been affected to varying degrees by austerity measures and politically motivated initiatives aimed at eliminating them.20 Nationally, the framework of the Swiss Conference of Equality Delegates has been strengthened and a committee has been set up to improve coordination among the equality offices and the flow of information.21
C. Swiss foreign policy in connection with human rights
10. Under the Constitution (art. 54 (2)), the promotion of respect for human rights is a stated goal of the foreign policy of Switzerland.22 The 2016-2019 Human Rights Strategy of the Federal Department of Foreign Affairs, adopted in February 2016, is aimed at making human rights a systematic component of foreign policy.23 One of the objectives of the Strategy is to strengthen human rights institutions and mechanisms.24 This includes the Human Rights Council, to which in 2015 Switzerland was elected for a third term for the period 2016-2018 and of which it is Vice-President in 2017. Switzerland participates actively in the universal periodic review of approximately two thirds of Member States, gives its views and positions on many topics and has strengthened the Council’s activities with a number of initiatives on specific topics, including the death penalty, peaceful protests and transitional justice, and also on institutional capacity-building.25
11. In addition, Switzerland takes its obligations towards the treaty bodies seriously and cooperates closely with them, including by providing financial support to a forum for the members of the treaty bodies, the Treaty Body Members’ Platform, the purpose of which is to improve the knowledge of treaty body members in specific legal fields and facilitate connections with other sources of expertise in Geneva.26 Lastly, Switzerland provides political support to most of the special procedures mechanisms and works closely on specific issues with some of them. Since 1 April 2002, Switzerland has extended a standing invitation to visit the country to all holders of thematic special procedures mandates, including the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, the Special Rapporteur on the human rights of migrants and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment.27 There are currently no requests pending for visits from these three Special Rapporteurs.
12. In the Human Rights Council, Switzerland is a member of the group of countries that submitted the resolution on human rights and the environment and it is actively working on the integration of these two topics. Switzerland also works with the Special Rapporteur on human rights and the environment.28 It also supported a Council resolution on climate change in June 2016. As a signatory to the Geneva Pledge for Human Rights in Climate Action, which seeks to facilitate the exchange of knowledge and best practices among human rights and climate experts, Switzerland also supports the initiatives stemming from the Pledge in the Human Rights Council.29
III. Promotion and protection of human rights
A. Equality, non-discrimination and subjects of specific rights
1. Gender
13. Switzerland has taken various measures at the level of the Confederation and the cantons to increase and enhance the representation of women, who are still underrepresented, in politics and in the economy.30 These measures include the 2014 issuance by the Federal Council of a circular urging the cantons, where appropriate, to draw voters’ attention to the difference between the number of seats held, respectively, by men and by women and to raise awareness of measures for the promotion of runs for office by women.31
14. In addition, on 16 June 2017, the Federal Council instructed the Federal Department of Finance to submit to it by spring 2018 a Message on ending the penalization of married couples as a result of the direct federal tax and thus to eliminate the negative financial repercussions for the spouse, usually the woman, who earns the secondary income. Starting in 2017, the Confederation increased the financial support32 that it provides for projects that promote the reconciliation of work and family life in companies, while continuing to encourage discussion of good practices among stakeholders, namely cantons or employers.33
15. Furthermore, the cantons and municipalities have in recent years greatly expanded the supply of childcare facilities to enable parents to reconcile work and family life. In September 2014, the Federal Assembly (the parliament) decided to extend until January 2019 a promotional programme of financial assistance for the provision of facilities for childcare outside the home and to authorize a new extrabudgetary appropriation of 120 million Swiss francs (SwF) to that end. In June 2017, the parliament decided to increase the financial assistance by SwF 100 million to reduce the costs borne by parents and make progress towards an equilibrium between supply and demand. On 5 April 2017, in a move that may encourage parents, mothers in particular, to take up gainful employment, the Federal Council proposed making childcare costs tax-deductible.
16. In recent years, self-regulation has not led to a balanced representation of men and women in positions of leadership.34 On 23 November 2016, the Federal Council therefore adopted a draft proposal for revision of the law governing joint-stock companies, setting quotas for the representation of men and women in leadership positions in publicly traded companies. Under this quota, women should account for at least 30 per cent of the members of boards of directors and 20 per cent of the persons in executive management.35
17. Combating domestic violence is a priority of the authorities at all levels of the Swiss Confederation.36 On 11 September 2013, Switzerland signed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention). Deliberations on its ratification are under way in the parliament. In addition, the relevant federal and cantonal authorities37 organize training workshops for both victims and perpetrators of domestic violence to enhance efforts to prevent and combat domestic violence. Projects to optimize the application of the law for
specific groups affected by domestic violence, which includes forced marriage, are also carried out by the federal and cantonal authorities.
18. In addition, a federal bill on improving protection for victims of violence is in preparation. The measures proposed include the conduct of proceedings at no charge, abolition of the conciliation procedure, the communication of decisions to all the authorities and persons concerned and other measures involving civil proceedings. The Federal Council is also considering establishing a legal basis for attaching an electronic bracelet or ankle device to ensure that restraining orders are enforced. In the area of criminal law, plans have been made to amend the rules regarding the stay of proceedings in cases of “minor”
violence in relationships and regarding the categorization of such cases. As part of the external evaluation of the Assistance for Victims of Crime Act, experts issued 30 recommendations for the cantons, the Confederation or both. Moreover, the feasibility and costs of putting in place a single telephone number for victims are being studied.
19. At the cantonal level, the Swiss Conference against Domestic Violence has since September 2013 brought together the relevant offices of each canton, with one of the objectives being to enhance cooperation among the cantons and increase the visibility of the issue. Several cantons are also in the process of developing a method of managing threats in the context of domestic violence.
20. In addition, under the Foreign Nationals Act,38 a female foreign national who is a victim of domestic violence has a right of residence39 after her marriage has been dissolved.40 The authorities responsible for enforcing the Act must take into account legal precedents relating to spousal violence when considering the cases submitted to them.
Those precedents recognize the right of residence on grounds of spousal violence where the offender inflicts systematic abuse on the victim in order to assert dominance and exercise control over the victim.41
2. Children
21. Since the amendment of the Criminal Code of 1 July 2014, resort to the paid sexual services of persons under 18 years of age has been punishable, under art. 196 of the Criminal Code,42 by imprisonment of no more than 3 years or a fine.43
22. The Civil Code currently in effect does not expressly prohibit the corporal punishment of children, but it is in conformity with the widespread view that corporal punishment is no longer a method of upbringing compatible with the well-being of the child. Switzerland therefore believes that it is not necessary to explicitly incorporate this principle in the Civil Code or to amend the criminal law, since repeated acts of violence against dependants, including children, have been prosecuted automatically since 1990, while bodily harm inflicted intentionally is always prosecuted automatically.44 The parliament has consistently rejected attempts to introduce such a prohibition.45
23. Switzerland relies above all on a support system for children and young people, combined with active awareness-raising measures aimed at changing the views and the conduct of the persons concerned.46 At the federal level, the Federal Social Insurance Office is active in cases involving families and children, helps coordinate the work of federal offices and the cantons and supports organizations working at the national level for the prevention of the ill-treatment and sexual abuse of children. It is also involved in parental counselling, awareness-raising, education and training. The cantons offer parents a variety of possibilities for assistance and support, including consultation services, counselling for young people and families and early education, in addition to courses specifically for parents who are having problems raising their children or are going through a crisis.
24. The aim of various cantonal projects, involving “educational landscapes” and the concept of double integration for children of immigrant background, is to achieve the best possible integration of young people of immigrant background into the education system.47 The remit of the members of the Education and Migration Committee, which is part of the General Secretariat of the Swiss Conference of Cantonal Ministers of Education, is to conduct a periodic analysis of the Swiss educational system from this particular perspective. Its latest report stresses that Swiss State schools have made considerable progress in this area over the past decade.48 The aim of the Confederation and the cantons,
set out in the joint statements of 2011 and 2015 on policy objectives for education in Switzerland, is to ensure that 95 per cent of young people aged 25 years have a secondary school diploma.49 This objective has already been surpassed for persons in the 26-35 age range who, regardless of their nationality, were born in Switzerland, in part as a result of inter-agency cooperation on unemployment insurance, disability insurance, social assistance and counselling. There are still challenges for young people who were born abroad and arrived later in Switzerland.
25. The Confederation and some cantons subsidize the national hotline of the Pro Juventute foundation.50 This foundation is also continuing to engage with specialized partners within the framework of the National Action Plan for the Prevention of Suicide,51 adopted on 24 November 2016.52 In addition, in the summer of 2016, the Federal Council approved an increase in the dues payable for the general prevention of illness. The Promotion Santé Suisse foundation will thus be able to provide support for the prevention and detection of mental illnesses, in particular, within the framework of the cantonal action programmes. Those programmes now include measures to provide additional resources for children and adolescents and enhance the provision of low-threshold support services for crisis management. This will make it possible to achieve the important goals of the National Action Plan for the Prevention of Suicide.
26. The National Strategy on Addiction, adopted by the Federal Council in November 2015, builds on a tried and tested policy with four components — prevention, therapy, risk reduction and law enforcement — and focuses especially closely on children and adolescents and their environment.53 Building resilience and skills in the area of health is a central concern — for example, by supporting the prevention work of the cantons and the institutions specializing in school-based activities through the Swiss “Education + Health”
network and the Swiss Healthy Schools Network.
3. Older persons54
27. In a report published in 2007, the Government defined a strategy for a policy on ageing whose objective is to better recognize the contribution made to society by older persons and to ensure their well-being and material security. Ensuring an adequate income and promoting the independence and participation of older persons, while taking into account the specific risks faced by older women, are of particular importance to the Government.55
28. In that connection, the “Old-Age Provision 2020” reform adopted by the parliament on 17 March 2017 is worth mentioning. It focuses on a reform of the first two pillars of the pension system and seeks to ensure the system’s financial stability while maintaining the level of benefits. It will be voted on by the people in September 2017. In 2015, moreover, the Confederation launched the National Conference on Older Workers, whose aim was to improve such workers’ integration into the labour market. Lastly, in January 2016, the Government commissioned the Swiss Centre of Expertise in Human Rights to conduct a study on the human rights of older persons, the results of which will be used to develop practical awareness-raising tools.56
4. Persons with disabilities
29. An external evaluation of the Act on the Elimination of the Disparities Affecting Persons with Disabilities showed that the Act has led to essential improvements in its scope of application, including in the important area of physical access to buildings, facilities and public transport. The evaluation also identified a number of possible improvements in such areas as raising awareness, providing information and extending the scope of enforcement.
In January 2017, as a result of this evaluation, the Federal Department of Home Affairs issued a report on the development of a policy for persons with disabilities that seeks specifically to mainstream equality for persons with disabilities in all areas, starting with work and education, and to coordinate the relevant measures taken by the Confederation and the cantons. In addition, the Department organized the first National Conference for the Integration of Persons with Disabilities in the Labour Market, which will meet three times in 2017 (January, May and December). In a bill on the further development of disability insurance, submitted to the parliament on 15 February 2017, the Government proposed new
measures to prevent disability and improve rehabilitation for children, young people and holders of disability insurance with mental health problems.
5. Migrants57
30. Swiss migration policy has three hubs. Switzerland recognizes, first, that foreign labour is necessary to the country’s prosperity. Without it, many economic sectors would be unable to maintain their current level. Second, the aim of migration policy to provide protection to the victims of persecution, in the humanitarian tradition of Switzerland, which is duty-bound to accommodate persons forced to flee war or torture.58 Third, the integration policy is one of the country’s priorities: it seeks to create conditions conducive to equality of opportunity by ensuring that public services are accessible to all. It promotes the coexistence of the Swiss and foreign populations in a spirit of mutual respect and tolerance.
31. The launch of the Cantonal Integration Programmes in 2014 was an important strategic step in promoting the integration of foreign nationals: for the first time, the same objectives, implemented in all the Cantonal Integration Programmes, were pursued throughout Switzerland. These objectives are set in the four-year Programme agreements (currently 2014-2017) between the State Secretariat for Migration and the cantons. The Programmes have three main components: information and counselling, training and work, and understanding and social integration. They recognize the principle that the promotion of integration should go hand in hand with the fight against discrimination and the removal of structural and individual obstacles to accommodation, work, training and leisure. The midterm review of the Programmes shows that they have significantly heightened the visibility and acceptance of efforts to encourage integration. The Programmes have also made it possible to improve the exchange of good practices among the persons responsible for implementing them at the cantonal and municipal levels. Nevertheless, there are still major challenges, mostly regarding the accessibility and financing of the services on offer and the assignment of responsibilities.59
32. Protection from discrimination has been a prime component of all the Programmes since 2014. They therefore include anti-discrimination measures, including advice and advocacy, that benefit all the population groups that are discriminated against or are potential victims of racial discrimination. They also involve raising awareness among the authorities, establishing specialized counselling services for victims of racial discrimination, providing in-service training for the staff members of counselling offices and encouraging networking.60 Accordingly, they are also of use to women victims of multiple discrimination.61 In addition, the Confederation’s Service against Racism supports projects that focus on multiple discrimination on grounds of gender and origin.62
33. The Programmes include active measures to reduce unemployment among migrants, particularly women and young people, such as the courses in the country’s languages offered by the cantons.63 The National Programme to Prevent and Fight Poverty 2014-2018, one of whose core themes is to afford greater training opportunities for children, young people and adults, also includes such measures.64 In addition, there are plans for a federal- level pilot programme, starting in 2018, to improve the integration of young refugees and persons granted provisional admission into the education system and the labour market.
One of the programme’s goals is to improve the coordination of the occupational integration measures taken by employment and welfare offices.
34. The measures taken to ensure non-discriminatory policing fall into three areas:65 the inclusion of modules on human rights and racial discrimination in training programmes for police officers; routine monitoring of police practice in identity checks and arrests, in order to combat racial profiling; and the establishment of complaints mechanisms, or even resort to the courts,66 in the event of racist aggression by a police officer.67 In addition, Swiss nationals of immigrant background can join the police, a measure that furthers the acceptance of the police by the entire population and reduces the potential for conflict.68 35. The right to free legal representation, on certain conditions, is guaranteed by the Federal Constitution (art. 29 (2)), regardless of a person’s legal status.69 Detained asylum seekers are guaranteed access to a lawyer, but the conditions of such access depend on the nature of the deprivation of liberty.70 In accordance with article 36 of the Vienna
Convention on Consular Relations and other provisions of public international law regarding visits and correspondence that are binding upon Switzerland, the consular authorities of the detainee’s State of origin are contacted only if the detainee so requests.
Similarly, contact is made with consular officials only if the person concerned does not object.
36. Switzerland has a legal framework establishing uniform grounds for the use of force and other measures by the police.71 The National Commission for the Prevention of Torture conducts independent monitoring of removals, expulsions and the behaviour of escort officers. The observers record their comments on a standardized form. This information is then processed and discussed by the Commission. The process leads to the formulation of recommendations that are transmitted both orally, as part of a purpose-oriented dialogue, and in writing (for their comments) to the relevant authorities. However, the Commission has no authority to conduct independent investigations into particular cases or make decisions concerning them.
37. Coordination and harmonization of practices among the cantons is achieved through the work of the intercantonal conferences on matters relating to asylum. 72 The recommendations of these conferences apply to all cantons73 and are made in keeping with the country’s obligations in respect of human rights and international humanitarian law.74
6. Racism75
38. Swiss legal provisions in respect of racial discrimination fall under international law,76 article 8 of the Constitution, criminal law and private law. Article 261 bis of the Criminal Code is one of the key features of this legal framework.77 This article criminalizes, among other things, public incitement to hatred78 or to discrimination against a person or group of persons as a result of their racial,79 ethnic or religious affiliation.80 Violations of the laws on racism in the Criminal Code are prosecuted automatically, without the victim’s having to file a complaint.81 After a study carried out in 2008 on the desirability of defining racial discrimination as it pertains to criminal law, the Federal Council concluded that, even without a specific legal definition of racial discrimination, the criminal provision met the requirements of the International Convention on the Elimination of All Forms of Racial Discrimination and that, by listing religious affiliation as one of the prohibited grounds of such discrimination, Swiss law even exceeded those requirements.
39. The adoption of an anti-discrimination law has not won the support of a parliamentary majority. Measures to raise awareness and encourage the use of the instruments already provided for in private law are therefore becoming more important.
One such measure is to provide victims of racial discrimination with opportunities for consultation, as part of the Cantonal Integration Programmes. The training and awareness- raising activities of the Service for Combating Racism, which was set up by the Confederation to encourage vertical and horizontal cooperation, are another. In 2017, the Service posted online an updated version of its handbook on racial discrimination and the law. The dissemination of the new instrument was accompanied by a one-day training session for legal practitioners active in that field.
40. The distinctive features of Swiss federalism and direct democracy limit the opportunities to centralize anti-discrimination measures. Accordingly, Switzerland does not have a national action plan that defines objectives centrally; instead, it has long-term strategies that are developed jointly with the cantons and municipalities, such as the Cantonal Integration Programmes, in place since 2014.82 This method makes collaboration and coordination challenging, but it often leads to innovative approaches that involve civil society organizations and that are better suited to the situation as managed at all three levels of the State.83
41. In 2014 and 2015, to counter hate speech, Switzerland participated in the No Hate Speech Movement, a campaign of the Council of Europe. In 2015, the Federal Commission against Racism launched “A Switzerland in Our Colours”, an Internet campaign to combat hate speech, specifically targeting young people. Furthermore, to encourage tolerance in the education system, most cantons have issued guidelines for their teachers.84 Lastly, protection from discrimination is one of the main themes of the Tripartite Conference on
Urban Areas, which brings together the Confederation, the cantons and the cities and during which many awareness-raising activities are conducted for all stakeholders.
7. Minorities
42. In recent years, religion has become an increasingly prominent subject of discussion in politics and society, and the Swiss authorities are active in interfaith dialogue and the promotion of religious tolerance. The Confederation and the cantons, in accordance with their respective remits and in partnership with civil society organizations, take measures to encourage peaceful coexistence among all population groups and combat the marginalization that can affect some members or communities.85 At the federal level, the Service for Combating Racism provides financial support in this area, to schools and other organizations, largely with a view to promoting the coexistence of religious communities and tolerance towards ethnic minorities in Switzerland.
43. Furthermore, the cantons and municipalities organize round tables, provide support for projects or arrange activities against the backdrop of Religions Week, which has been observed in early November every year since 2006.86 In 2016, about 150 such events were held throughout Switzerland. In the educational system, the Swiss Conference of Cantonal Ministers of Education, on the basis of a recommendation dating from 1991, regularly takes measures to counter discrimination and promote tolerance. The Confederation supported the establishment of the Swiss Centre for Islam and Society at the University of Fribourg.
Since 2015, the Centre has been contributing to harmonious coexistence by raising the core issues of Muslim religious self-interpretation and by working on responses to social challenges.87
44. Furthermore, in each segment of the national dialogue of the Tripartite Conference on Urban Areas,88 the issue of integration and the prevention of inequality and discrimination is highlighted by specific projects and examples of good practices publicized on a website.89 It was in this context that in 2017, for example, the Interfaith Work Group in Switzerland launched the project “Dialogue on the Move”, which allows young people to share their experience of the diversity of religious culture in Switzerland with their peers. In addition, the Swiss Council of Religions, and organizations bringing together different religions, are regularly received by members of the Federal Council to discuss topical issues.90
45. In 2015, the Federal Council set up a working group to develop measures to fulfil the obligations towards Yenish and Sinti people arising from the Council of Europe’s Framework Convention for the Protection of National Minorities. The greatest challenge, which requires obtaining the trust of local populations and their acceptance of the way of life of Travellers, is to address the shortage of encampment areas. All known Yenish and Sinti organizations and several Roma organizations have participated in this working group.
There was discussion on a shared list of proposals, which served as the basis for the ongoing development, under the leadership of the Federal Department of Home Affairs, of a federal action plan. Encampment areas for Travellers are among the areas of work that have been identified. On 21 December 2016, the Federal Council took note of the interim results of the work on the Yenish, Sinti and Roma Action Plan. It confirmed the approach taken by the Plan and asked the Department to continue the consultations with the relevant cantonal conferences on areas that are essentially the responsibility of the cantons, encampment areas in particular.91
46. In addition, one segment of the Federal Council’s Message on encouraging culture for the years 2016-2020, approved by the parliament on 19 June 2015, deals specifically with Travellers and Yenish and Sinti people. The aim is to improve the living conditions of these cultural minorities, intensify efforts to raise awareness among the authorities and the public and promote the language and culture of Yenish people. In September 2016, the head of the Federal Department of Home Affairs took part in the Feckerchilbi in Bern, the annual holiday traditionally celebrated by Yenish and Sinti people. He noted on that occasion that the Swiss Sinti and Yenish — itinerant or sedentary — are recognized as national minorities within the meaning of the Framework Convention. That recognition was also made clear in February 2017, in the country’s fourth report on its implementation of the Framework Convention.
47. The aim of recognizing Travellers as a national minority in 1998, at the time of the ratification of the Framework Convention, was primarily to preserve the itinerant way of life led in Switzerland by Yenish and Sinti people. In 2015, Roma organizations submitted a request for Swiss Roma, who are sedentary, to be recognized as a national minority, too.
A request has also been submitted for Romani to be recognized as a minority language within the meaning of the European Charter for Regional or Minority Languages. The federal Government is currently determining whether the Roma have fulfilled the requirements, as set out in the interpretative declaration made by Switzerland, for recognition as a national minority under the Framework Convention. The next steps of the process will be to complete the collection of information necessary for a fully informed and objective assessment of the situation. In addition, the Federal Council has expressed its readiness to consider the recognition of the Romani language in the context of the country’s next periodic report on the implementation of the European Charter for Regional or Minority Languages.
8. Sexual orientation and gender identity
48. The amendment to legislation on adoption adopted by the parliament on 17 June 2016 establishes a procedure that, in similar fashion to the adoption of a spouse’s child in a married couple, will enable persons living in a registered partnership or de facto union to adopt the child of their heterosexual or homosexual partner.92
49. In a report of 25 March 2015, the Federal Council addressed the modernization of family law and concluded that it was necessary to adopt laws equating registered partnerships with marriage or allowing homosexual couples to marry.93 The Legal Affairs Committees of the two houses of parliament have in the meantime decided to proceed with parliamentary initiative No. 13.468 on civil marriage for all and will submit proposals for putting it into effect. Moreover, homosexual couples in a registered partnership have been able to use the same family name since 1 January 2013.
50. The Federal Council has expressed its readiness to address the issue of the legal protection of transgender persons94 and, against that backdrop, to consider acting on the recommendations made in resolution 2048 (2015) of the Council of Europe.95 The Federal Civil Status Office issued a legal opinion requesting the cantonal civil status authorities not to make surgical sterilization or reconstruction of opposite-sex genital organs a prerequisite for a legal change of sex.96 This opinion also argues that legal recognition of a sex change should not require dissolution of the marriage or registered partnership of the persons concerned against their will.97
51. In principle, in cases of intersexuality, an amendment to the sex recorded in the civil register should also, under current law, be ordered by a judge at the request of the parents, the child him or herself 98or the cantonal authorities responsible for overseeing civil status.99 The decision will then be recorded in the civil register and the reference to the sex will be changed. The Federal Civil Status Office has issued official statements setting out the conditions for the automatic correction of records by the civil status authorities or for correction by a judge,100 the aim being to facilitate corrections.101 In addition, discussions on drafting a law establishing a simplified procedure for recording a sex change in the civil register are currently under way.102
52. Where criminal law is concerned, the parliament decided to proceed with a parliamentary initiative to expand the scope of article 261 bis to include discrimination based on sexual orientation.103 It has extended the deadline for addressing the initiative to the spring 2019 session.
B. Right to life, prohibition of slavery and torture
1. Combating trafficking in human beings and sexual exploitation
53. Since 2012, the Swiss strategy for combating human trafficking has been defined in national action plans. They are coordinated and drafted by the Coordination Unit against Trafficking in Persons and Smuggling of Migrants attached to the Permanent Secretariat of
the Federal Office of Police. The Coordination Unit brings together all the entities in Switzerland — federal and cantonal services and other organizations — working in this field. The National Action Plan 2017-2020 takes into consideration the recommendations made to Switzerland by the Council of Europe on 30 November 2015, following the evaluation of the country’s implementation of the Council of Europe Convention on Action against Trafficking in Human Beings.104
54. On 17 March 2017, the parliament authorized the Federal Council to ratify the Protocol of 2014 to the ILO Forced Labour Convention, 1930 (No. 29), which addresses human trafficking. The ratification process will take place in summer 2017, once the period during which a referendum can be called has elapsed.
55. The financial resources earmarked for combating trafficking in human beings take several forms. First, funding for assistance to victims is allocated by the cantons under the Assistance for Victims of Crime Act.105 The cantons ensure that there are private or public consultation centres, which operate independently in their particular sector.106 In addition, several non-governmental organizations (NGOs) that specialize in providing assistance to victims of human trafficking have entered into contracts with different cantons and are paid by the latter for the support and assistance they provide to the victims of human trafficking.
Lastly, under two edicts that entered into force on 1 January 2014 and 1 January 2016 respectively, the Confederation provides financial assistance to NGOs that specialize in helping victims of human trafficking and to other NGOs involved in the prevention of crime against prostitutes.107 To raise awareness of sexual exploitation,108 Switzerland gives priority to outreach projects limited to one or more target groups.109
56. Victim protection measures are designed to identify victims of exploitation, help them overcome the exploitation and assert their rights, provide them with aid, resolve their residence status, protect them from offenders and reintegrate them into society. Since the prosecution of the perpetrators is generally the responsibility of the cantonal authorities, there are differences from one canton to another.110 In many cantons, round tables and other coordination mechanisms have been set up. The strategic actions taken by the Confederation in this area are focused on improving the coordination of procedures at the national and international levels, enhancing international police cooperation, training specialists in the cantonal police forces and establishing specialized investigative units.
Swiss criminal law provides for lengthy custodial sentences of up to 20 years for sexual exploitation offences.
57. Between 2011 and 2015, according to police crime statistics, 50 per cent of the trafficking victims identified in Switzerland came from Hungary, Romania, Thailand and Bulgaria. Switzerland is therefore committed especially to strengthening cooperation with these countries.111 In 2015, Switzerland initiated police cooperation with Romania, under the leadership of the Federal Office of Police, with a view to ensuring improved knowledge management, enhancing the exchange of information and providing the Romanian authorities with logistical resources and information technology. In addition, a project aimed at establishing a transnational referencing mechanism for Switzerland and Hungary was initiated in 2017. As part of the Swiss contribution to the enlargement of the European Union, a project to enhance cooperation between Switzerland and Bulgaria in the fight against human trafficking was launched on 1 July 2004.112 Lastly, since 2014 Switzerland has had a police officer stationed in Thailand, which has made it possible to improve cooperation between the criminal prosecution authorities of the two countries.113
2. Prevention of torture and other cruel, inhuman or degrading treatment or punishment
58. On the basis of general provisions criminalizing acts of violence that threaten a person’s life, physical and mental integrity and liberty, the Criminal Code criminalizes all acts of torture, even without a specific definition thereof. Switzerland therefore does not consider it necessary to introduce a definition of torture in its legal order, as the current situation is satisfactory.
59. The Code of Criminal Procedure states that force should be used only as a last resort and only in the execution of coercive measures. It must be used in accordance with the
principle of proportionality. Otherwise, the excessive use of force is penalized under the Criminal Code, particularly when it causes bodily harm or results in a person’s death and thus becomes murder. In such cases, a complaint may be sent direct to the Office of the Attorney General without going through the police.114
60. The Bangkok Rules115 are not more stringent than the European Prison Rules, which Switzerland already applies.116 The regulations in force thus ensure compliance with the Bangkok Rules. In practice, however, some difficulties have been noted, as sufficient consideration is not always given to the specific rights and needs of women, particularly in cases of pretrial detention.
C. Administration of justice and fair trial
61. Combating terrorism and transnational crime are priorities for the country in the current international context.117 On 18 September 2015, Switzerland adopted a national counter-terrorism strategy.118 In response to the challenges posed by the threat of terrorism, it has also strengthened its legislative framework in this area in recent years. The Federal Act on the Proscription of the Groups Al-Qaida and Islamic State and Associated Organizations, which provides for the absolute prohibition not only of the activities of these groups but also of any action taken to support them, whether through financial support, propaganda, recruitment of new members or in any other way, entered into force on 1 January 2015.119 In addition, on 26 June 2016 the Federal Council instructed the Federal Department of Justice and Police to prepare amendments to national laws to allow the relevant authorities to take preventive policing measures to prevent jihad sympathizers from leaving for conflict areas.120
62. As with the fight against terrorism, combating organized crime requires close collaboration and coordination between the federal and cantonal authorities. At the federal level, the Federal Criminal Police, who are part of the Federal Office of Police, conduct preliminary investigations and undertake criminal procedures, by order of the Attorney General, in connection with all offences under federal jurisdiction.121 The Federal Office of Police provides support to the law enforcement authorities of the Confederation and the cantons with its reports on organized crime. Lastly, there is the Money-Laundering Reporting Office Switzerland, which receives, analyses and transmits to the law enforcement authorities’ suspicious activity reports in connection with money-laundering, terrorist financing, the proceeds of crime or money belonging to criminal organizations.
63. The forms of legal protection against discrimination are an integral part of law studies in Switzerland.122 In May 2016, further to the study “Accès à la Justice dans des cas de discrimination” (Access to justice in cases of discrimination), which was produced by the Swiss Centre of Expertise in Human Rights at the request of a number of departments, the Federal Council expressed the view that raising awareness among the persons concerned of the possibilities of protection and advice was an ongoing task that should be predicated on the specific kind of discrimination under consideration. Similarly, the management of diversity and issues related to protection from discrimination are an integral part of police training, including in-service training. The cantons, which are responsible for policing in the Swiss federal system, have developed various forms of cooperation, one such form being their joint police academies. The basic training provided to future police officers in the academies involves instruction not only in ethics but also in approaches to different cultures, ethnic minorities and topics related to migration and human rights.123 Psychology, police ethics and human rights are an integral part of the professional examination to become a police officer and account for more than a third of the hours scheduled. The in-service training seminars organized by the Swiss Police Institute in Neuchâtel, among others, also deal with these issues regularly.
D. Right to seek asylum
64. The Federal Council intends to expedite significantly the execution of asylum procedures, while ensuring that they remain consistent with the principles of the rule of
law. Henceforth, 60 per cent of them will lead to an enforceable decision within no more than 140 days, including removal. These procedures will be carried out in Federal Centres for Asylum Seekers. To ensure that the procedural guarantees enshrined in the Constitution are respected, the legal protection of asylum seekers, who will have the right to counsel, will be expanded. These procedural guarantees also apply to minors. Having legal representation facilitates an understanding and acceptance of decisions by asylum seekers and is thus key to expediting proceedings.124 Following its acceptance by popular vote on 5 June 2016, the Federal Council will decide on the entry into force of the amendment.125
E. Freedom of thought, conscience and religion, expression, assembly and association
65. The fundamental guarantee of religious freedom126 is contained in article 15 of the Federal Constitution and article 9 of the European Convention on Human Rights.127 Like other human rights, religious freedom may be restricted in accordance with article 36 of the Constitution.128
66. In 2013 and 2015, further to cases concerning Muslim schoolchildren in Bürglen (Thurgau Canton) and St. Margrethen (St. Gallen Canton), the Federal Supreme Court held that wearing a veil in schools could not be prohibited without violating a person’s right to religious freedom. The European Court of Human Rights, for its part, held that “by ensuring that the children’s obligation to follow school programmes in full and their successful integration took precedence over the applicants’ private interest in having their daughters excused from mixed-sex swimming classes on religious grounds, the Swiss authorities have not gone beyond their considerable scope for the exercise of discretion in the present case, which concerns compulsory education”.129
67. The full facial veil has been a subject of political debate, particularly after the introduction in the Constitution of Ticino Canton of a prohibition on wearing such veils in public was approved by the people of the Canton in the fall of 2013 and entered into force on 1 July 2016.130
68. In addition to the provisions of United Nations instruments, including the International Covenant on Civil and Political Rights, freedom of expression is guaranteed in Switzerland by article 16 of the Constitution and article 10 of the European Convention on Human Rights. Freedom of expression is not absolute, however. It may be restricted in accordance with article 36 of the Constitution, article 10 (2) of the Convention and article 19 (3) of the Covenant: the restriction must have a legal basis, pursue a legitimate aim and respect the rules of proportionality. Swiss regulations and practice are also consistent with the principles set out in general comment No. 34 of the Human Rights Committee, which, rather than establishing new standards, clarifies the interpretation of article 19 of the Covenant.131
69. There are periodic debates in Switzerland on how far article 261 bis of the Criminal Code, which criminalizes several forms of racial discrimination or discrimination on religious grounds, is compatible with freedom of expression. Under this article, a person who publicly expresses certain views is punishable only when those views harm or threaten other legally protected interests. The law thus provides for an individualized assessment of each case, in accordance with the principles of freedom of expression.132
70. In its judgment in the case of Perinçek v. Switzerland of 15 October 2015, the Grand Chamber of the European Court of Human Rights found a violation of article 10 of the European Convention on Human Rights. It concluded that the complainant’s conviction pursuant to article 261 bis (4), of the Criminal Code for denying the Armenian genocide constituted a violation of the Convention. The Court did not question the compatibility of article 261 bis of the Criminal Code and article 10 of the Convention as such; indeed, it acknowledged that this criminal provision was a sufficient legal basis for criminalizing the denial of genocides. While criticizing the application of the law in the particular case, the judgment of the court leaves room for cases in which a conviction would be consistent with freedom of expression.
