By: Elena Pivanti
On November 9th, 2017, Ms. Pascale Baeriswyl, the Swiss Secretary of State, presented the third national report of the Universal Periodic Review of Switzerland on the developments concerning its human rights commitments and the application of previous recommendations.
During the presentation of the report, Ms. Baeriswyl underlined how human rights are one of the cardinal values of Swiss tradition, and the key objective of their foreign policy under constitutional mandate. The protection of human rights is enshrined in both international obligations and national laws of the country.
The discussion of this third report in spring 2017 involved a broad consultation process, that included cantons, extra-parliamentary federal commissions, civil society and sectors that included cantons.
International Instruments: the efforts made by Switzerland to ratify international instruments in the past years have resulted in the country acceding the International Convention on the Protection of all Persons from Enforced Disappearances, the Convention on the Rights of Persons with Disabilities, the ILO Convention No.189 on Domestic Workers, and the Optional Protocol to the Convention on the Rights of the Child.
Moreover, Switzerland withdrew in 2013 the reservation that it had made to the Convention on the Elimination of All Forms of Discrimination against Women.
National Human Rights Institution: Switzerland announced that it is currently bringing on consultations within the Federal Council to create an independent National human rights Institution, in conformity with the Paris principles. This institution would be based in a university, and would cooperate with NGO’s, civil society and other institutions.
Switzerland has stated that the draft law has already been submitted for Canton approval at the end of October 2017, and will be submitted for Parliament approval in 2018.
Mass atrocities: Switzerland has affirmed that it has many laws that prevent and punish mass atrocities, and that they are very active in combating genocide.
Gender equality: Switzerland has stated that in November 2016 a draft law was created to revise the way companies hire the percentage of men and women, introducing a quota of at least 30% of the members of board directors being women.
Trafficking of persons: Switzerland has stated that is has adopted a national Plan for 2017-2022 to prohibit the trafficking of persons. This plan is based on four pillars; prevention, criminal prosecution, protection of the victims and partnership.
Domestic violence: In 2013, the Switzerland signed the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention), but has yet to ratify it. Switzerland declared that the ratification of this Convention is imminent; it appears that the Parliament is undergoing discussions to proceed to the ratification, and in the meantime training workshops are being held for both victims and perpetrators of domestic violence.
Rights of children: Switzerland maintained that in 2014 the Swiss Criminal Code was amended, to meet the requirements of the Council of Europe Convention on the Abuse of Children.
A paternity-leave program has also been discussed, to ensure paid paternity leaves for fathers who need to take time off work to take care of their children.
Persons with disabilities: During the course of the interactive dialogue, many countries expressed their concern over the treatment of persons with disabilities.
Switzerland has however only acceded to the Convention on the Persons with Disabilities, not ratified it. The country stated nonetheless that they want to contribute actively to promote the independence of people with disabilities, and their participation and inclusion in society.
Migration: Switzerland works to ensure the protection of migrants from racial discrimination; since 2014, programs have been set up to ensure anti-discrimination measures. The Federal Constitution also guarantees the right to free legal representation to migrants. Detained asylum seekers are guaranteed access to a lawyer. The return and expulsion of those who have not been granted a residence permit is supervised attentively, and Switzerland stated that Swiss law prohibits doctors from using sedatives to facilitate the return of such people to their country of origin.
However, Switzerland also announced that it does not have any intention on ratifying the Convention on the Protection of the Rights of All Migrant Workers; it added that a law that came into force in 2008 is not compatible with the Convention. The Federal Council is also working towards making asylum procedures more expedite, so that decisions can be taken no more than after 140 days. To ensure that procedural guarantees enshrined in the Constitution are respected, the legal protection of asylum seekers will be expanded.
Racism: Switzerland has claimed that racial discrimination is low in the country because of the success of integration, which has brought the local population to view racism as wrong. Furthermore, help is being provided to those who are discriminated. Swiss law contains multiple provisions concerning anti-discrimination, both in the Constitution, criminal law and private law. There is a wide framework that covers all possible forms of discrimination. The Federal Council has concluded that even without a specific legal definition of racial discrimination, the national criminal provisions meet the requirements of the Convention on the Elimination of All Forms of Racial Discrimination.
Switzerland does not have a national action plan on anti-discrimination, but has strategies that are developed jointly by the Cantons and municipalities. Hate speech and discrimination based on ethnicity is adequately punished under Swiss law; same for discrimination based on sexual identity. Racial discrimination on part of police officers and officials is also protected, and Swiss law has introduced a complaint procedure in its legal framework.
Minorities: Switzerland has ensured they promote religious tolerance. The country has taken measures to ensure the peaceful coexistence among all population groups, and to combat marginalization of members of minor communities. The process of integration is showed by many projects and initiatives brought on by Switzerland.
Transgender Persons: The Swiss Federal Council has addressed the issue of the legal protection of transgender persons. Switzerland has indeed stated that they are thinking of a reform of the Civil Code to make it easier for someone who changes gender identity to change their basic information.
Torture: Switzerland has asserted that its national laws contain provisions that prohibit and criminalize torture. Even though the criminal code does not include a definition of torture, all forms of torture, both physical and mental, are criminalized and adequately punished. The country has stated that the introduction of a definition of torture seems unnecessary to them, as long as the crime is sanctioned.
Compilation report prepared by the Office of the United Nations High Commissioner for Human Rights. The compilation draws on reports of treaty bodies and special procedures and other relevant UN documents. It considers to be part of the country review.
The Committee on the Elimination of Racial Discrimination expressed its concern at the lack of sufficient safeguards to ensure that popular initiatives proposed by citizens did not contradict the country’s obligations under the Convention on the Elimination of All forms of Racial Discrimination.
The Human Rights Committee made similar comments. However, it also welcomed the draft bill on the creation of a national human rights institution.
Also the UNHCR noted that Switzerland did not have comprehensive anti-discrimination legislation.
The Committee on the Rights of the Child expressed its concern over the disparities in the implementation of the Convention on the Rights of the Child in the various cantons. It recommended that Switzerland establish a specific mechanism for monitoring children’s rights, to investigate on complaints and protect victims.
The Committee Against Torture was concerned about there not being a definition of torture in the Criminal Code, since it could create a legal vacuum which might result in impunity. The Human Rights Committee also expressed it concern over the ongoing police brutality, especially against asylum seeker and migrants.
The CAT was also concerned about the prison conditions in the country.
The ILO Committee on Experts noted that the gender wage gap remained significant in Switzerland and there was still a big disparity It recommended to create more opportunities for women. The Committee on the Elimination of Discrimination Against Women also remained concerned about the number of women present in elected bodies, and recommended that efforts were made to address gender-based violence.
UNESCO noted the various efforts that had been made by Switzerland to enhance the right to education; however, it expressed it concern for the problems that asylum seekers and migrants are facing in accessing secondary education.
UNHCR noted that Switzerland applies a restrictive refugee recognition policy. Many individuals were not recognized as refugees and were not granted asylum. Thus, it recommended that the country ensure the full application of the 1952 Convention relating to the Status of Refugees.
Finally, the UNHCR also noted Switzerland does not have a formalized statelessness determination procedure. It recommends the establishment of this procedure, and to introduce an inclusive definition of the term “stateless person”.
Summary of stakeholders’ submissions on Switzerland prepared by the OHCHR
The summary was prepared by the OHCHR taking into consideration the contributions by the national human rights institution and 17 stakeholders’ submissions to the UPR.
In a joint statement made by several NGOs (JS2), it was noted with concern that women remain under-represented in many areas.
Another joint statement was submitted concerning the issue that Switzerland had not supported recommendations calling for new comprehensive legislation on discrimination. In fact, the ODIHR noted that the Swiss Criminal Code does not have hate crime provisions.
It was recommended that Switzerland adopt legislation to create effective and comprehensive protection against discrimination for LGBT persons. Transgender people still appear to be a highly stigmatized group at the margin of Swiss society, and awareness on this issue has to be raised.
AI noticed how the Swiss Criminal Code lacks a provision that expressly prohibits torture, noting that the previous UPR recommendations on this issue were not supported. Other NGOs encouraged the country to take the necessary measures, especially with regards to torture crimes committed to people held in detention.
ACT212 indicated that all recommendations on human trafficking had been at least partially implemented. However, it highlighted that further steps still had to be taken by the country.
JS2 indicated that the labor market in Switzerland is characterized by disparities; women are paid less, and there is a strong segregation of sexes.
The GIEACPC stated with concern that the Swiss Government had not supported a recommendation to explicitly prohibit corporal punishment in the home.
AI pointed out that asylum procedures in the country do not always provide sufficient protection, and that these people still face discrimination.
JS3 also noted that Swiss law does not protect against statelessness at birth, and recommended that it put in place safeguards to ensure that all children born in Switzerland, who would otherwise be Stateless, acquire Swiss nationality automatically.
Country assessment during the Interactive dialogue
International Instruments: Tunisia, along with other countries, has urged Switzerland to ratify the Istanbul Convention. Moreover, it was recommended that the country fully apply to the 1951 Convention on the Status of Refugees. Another suggestion was that Switzerland accede to the Additional Protocol of the ICCPR.
Costa Rica recommended that the country ratify the 1961 Convention on the Reduction od Statelessness. Finally, Switzerland was urged to ratify the Council of Europe Convention on the Discrimination of Women.
National Human Rights Institution: Many countries, such as Timor Leste and Togo, have urged for the creation of a National human rights institution
Mass atrocities: Rwanda welcomed Switzerland’s efforts to protect human rights, but was concerned about what the country is doing to prevent mass atrocities.
Gender equality: Many countries have expressed their concerns regarding the problems with unbalanced representation of men and women in leading positions, in politics and economy, and also on the existing gender pay gaps.
Slovenia has encouraged the country to make more efforts aimed at abolishing gender pay gaps, and Sweden has recommended to introduce a strategy plan that efficiently ensures gender pay equality.
It has also been suggested to amend company laws, to ensure the same percentage of working men and women.
Domestic violence: Many countries have urged Switzerland to ratify the Istanbul Convention. In particular, Botswana urged that Switzerland ensure that a female foreign national who is victim of domestic violence does not see her residence permit revoked, in case of the dissolution of the marriage.
Rights of children: Many countries have congratulated Switzerland for the efforts made in this area; however, they have encouraged the country to continue pursuing these efforts, to grant more rights to children.
Persons with disabilities: A few countries have recommended that Switzerland promote the inclusion of persons with disabilities into society.
Migration: Senegal welcomed the ratification of many human rights treaties, but expressed its concerns concerning the protection of all migrant workers and their families.
Racism: Switzerland has been urged by several countries to avoid discrimination and racial hate; in particular, it was encouraged to ban hate speech. Uzbekistan, in particular, was concerned with the xenophobic tones of many national initiatives.
Albania has suggested that Switzerland bring on awareness campaigns on the topics of xenophobia and racial discrimination.
Switzerland has yet to adopt a clear and precise definition of racial discrimination, to the purpose of anti-discrimination laws.
Minorities: Countries expressed their concern over the fact that Switzerland has yet to ratify the ILO Convention on Indigenous People.
Egypt also urged the country to ensure the protection of all religious minorities, not only ethnic minorities.
Transgender Persons: Several countries encouraged Switzerland to grant more rights to transgender people; many of them urged the country to introduce legislation to prohibit discrimination based on gender identity. Many countries during the session have indeed pressed for the adoption of adequate legislation to protect the rights of trans people.
Slovenia, in particular, has asked Switzerland to abolish any forms of discrimination in pay gaps for transgender people in work areas.
Torture: Many countries pressed that Switzerland should make torture a crime in line with Article 1 of the Convention Against Torture, thus also including a comprehensive definition.
Response of the Swiss delegation to the interactive dialogue
In responding to the various recommendations made by countries to Switzerland’s report during the interactive dialogue, Ms. Baeriswyl outlined the status of implementation of these recommendations made since the previous UPR sessions.
She stated that in June 2017, the process to turn the Swiss Centre of Expertise in Human Rights into a national human rights institution was set in motion; this would provide for a long-lasting solution to provide access to justice per persons in vulnerable situations.
Furthermore, the human rights strategy of 2016-2019 is aimed at making human rights a systematic component of foreign policy. Switzerland closely cooperates with the treaty bodies, and actively works with the Special Raporteur on human rights and the environment.
Switzerland has taken various steps to increase and enhance the representation of women in working areas, especially politics and economy. The Federal Council has adopted a draft proposal for revision of company law, to set a quota for the representation of men and women in leadership positions.
There have also been ongoing projects to promote the reconciliation of work and family life in companies; furthermore, the number of childcare facilities has been expanded.
Ms. Baeriswyl touched on the topic of trafficking of persons, and stated that since 2012, national action plans for combating this issue have been put into motion. A Coordination Unit against the Trafficking in Persons has been set up, and in 2017 the country ratified the Protocol to the ILO Forced Labour Convention on human trafficking. There is also a Swiss fund to grant assistance to victims.
On the subject of domestic violence, Ms. Baeriswyl stated that in 2013 Switzerland has signed the Istanbul Convention, and that deliberations on its ratification are under way. Furthermore, a federal bill on improving protection for victims of violence is in preparation.
The rights of children are also protected, especially since the amendment of the Criminal Cod in 2014. Switzerland relies on the legal framework to protect children and young people, combined with active awareness-raising measures. At a Federal level, there is an entire system that helps families and children, and supports organizations which work to prevent the ill-treatment and sexual abuse of children.
The country is also working towards ensuring the integration of immigrant children into the education system.
Ms. Baeriswyl has stated that on the subject of persons with disabilities, there have been improvements in the application of the Act on the Elimination of the Disparities Affecting Persons with Disabilities. Improvement has been noticed not only in the area of accessing buildings, public transport and other facilities, but also in the area of raising public awareness.
Switzerland stated that migration represents an important pillar of the country’s prosperity, since foreign labor is necessary to their economy. The success of integration in the country will bring cooperation between local population and migrants; social integration programs are in fact being implemented. Equal opportunities for all are ensured, so that public service are accessible to all. The anti-discrimination programs set up in 2014.
These programs also aim at reducing unemployment among migrants, especially women and young people, and to improve the integration of young refugees. In particular, these programs are based on three areas; training programs for police officers on human rights and racial discrimination, monitoring of police practice in conducting checks and arrests, and establishing complaint mechanisms in the event of racist aggression by a police officer.
However, steps still have to be taken towards ensuring family reunification in the asylum process; in fact, Switzerland has yet to fully apply the 1951 Convention on the Status of Refugees.
On the issue of racism, replying to some of the questions and remarks raised by States, Ms. Baeriswyl stated that the national legal framework enshrines provisions against racial discrimination, public incitement to hatred, and any discrimination based on ethnic or religious affiliation. Switzerland also participated in the No Hate Speech Movement, a campaign of the Council of Europe.
The protection of minorities has also developed over the years. Switzerland stated that both the Confederation and the Cantons are taking every measure to ensure peaceful coexistence among all population groups and communities. At a federal level, the Service for Combating Racism provides financial support in this area.
Moreover, cantons and municipalities often organize projects and events to counter discrimination and promote tolerance.
Ms. Baeriswyl also pronounced herself on the issue of sexual orientation and gender identity, stating that in 2016 amendments were made to legislation to ensure that people living in a registered partnership or a de facto union can adopt the child of their partner. Furthermore, she addressed the issue of the legal protection of transgender persons, and the possibility to change gender identity at the civil register. The Parliament has decided to expand the scope of certain laws to include discrimination based on sexual orientation in 2019.
Adoption of the Draft Report
On Tuesday 14th of November, 2017, the Working Group on the Universal Periodic Review adopted the report on Switzerland. The delegation of Switzerland has received 251 recommendations. 121 of these recommendations were accepted, while 63 will be examined, and responses will be provided by the country no later than the 37th Session of the Human Rights Council in 2018.
Links to GICJ reports on the UPR reviews of: