HUMAN RIGHTS COMMITTEE CONCLUDES REVIEW OF REPORT OF SWITZERLAND

Human Rights Committee
73rd session
19 October 2001
Afternoon





Calls, in Preliminary Observations, for Better Efforts to Ensure Proper
Police Treatment of Foreigners, Members of Minority Groups



The Human Rights Committee concluded consideration this afternoon of a second periodic report of Switzerland, calling in preliminary remarks for greater efforts to ensure proper police treatment of foreigners and members of minority groups, and to investigation of complaints against the police; and suggesting further steps to make sure asylum procedures and treatment of asylum-seekers were in keeping with the standards of the International Covenant of Civil and Political Rights.

The Committee, in observations read out by Vice-Chairman David Kretzmer, cited numerous positive developments in Switzerland, including adoption of a new Constitution with strong human-rights protections and numerous steps taken to combat racism and other forms of discrimination.

The panel's official conclusions and recommendations will be issued before the end of its autumn session on 2 November.

Earlier in the afternoon, an 11-member Swiss Government delegation, led by Heinrich Koller, Director of the Federal Office of Justice of Switzerland, responded to a series of questions on treatment of prisoners and detainees; the right to a fair trial; deportation; freedom of movement and family life; rights of the child; and protection of minorities. The Government delegation introduced the report this morning.

Switzerland, as one of the 198 States parties to the International Covenant, must provide periodic reports to the Committee on efforts to implement the treaty's provisions.


The Committee will meet in private on Monday, 22 October, to review communications. It will meet in plenary at 10 a.m. on Tuesday, 23 October, when it has to decide whether or not to proceed with a review of the situation in Afghanistan in the absence of a country delegation to present the report.


Discussion

The delegation of Switzerland, responding to questions put at the end of the morning meeting, said among other things that rule of law, including full legal protection with respect for federal and international human rights standards, applied throughout Switzerland at the cantonal level; concerns raised by Committee members about the Swiss federal system could be reassured on that account. Some international law did not have supremacy over the Constitution and some did, the delegation said; but fundamental rights in Switzerland were basically covered by compulsory law, had top priority and were binding. Human rights matters in the Constitution were formulated based on the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and domestic jurisprudence, among other sources; as far as the Government knew, the catalogue of protections was complete.

Switzerland had removed last year its reservations concerning article 6 of the European Convention on Human Rights and was considering removing reservations related to the similar article in the International Covenant, the delegation said; but it was concerned about a detail related to the rights of officials and civil servants; it was hoped that soon domestic law would be changed to allow removal of the reservation. As for the reservation to Covenant article 26, an article 14 in the Swiss Constitution was similar, and the Government had mandated the Swiss administration to look into the possibility of removing reservations to all international instruments.

As for 34 cases of complaints against the police, the delegation said, many of those did not concern torture or ill-treatment. When it was realized how seriously the tribunals and courts, especially the Federal Tribunal, took human rights standards; when it was realized how seriously Switzerland implemented decisions taken by the European Court of Human Rights; and when one observed other activities, then it was not perhaps accurate to say, as a Committee member had charged this morning, that Switzerland did not sufficiently monitor human rights. As for the absence of a national human rights commission, it appeared that such a board did not fit with Swiss Governmental tradition and public culture, although many departments, including those related to police, justice, and related matters, did have offices that focused on human rights. The Federal Council considered that all officials implementing the law should have human rights knowledge, and training to that end had been carried out. Hence it had not been considered necessary to have a national body specifically dedicated to human rights, especially since an office in the Ministry of Foreign Affairs was mandated to coordinate the activities of various federal ministries on human rights. The Government nonetheless remained opened to proposals for expanding its human rights machinery.

The Federal Commission against Racism was not independent and did not have a mandate to take binding action or bring formal charges, the delegation said, but it had, over its six years of existence, done a great deal to combat racism, xenophobia, and mistrust of foreigners; it had regularly discussed sensitive matters; it dealt often with occurrences of racism against asylum-seekers and against foreigners without papers; and it had openly voiced its opposition to some parts of the Government's dual system for recruitment of foreign workers.

Many cases had been brought under a new law prohibiting discrimination, the delegation said, but a weakness of the law was that it only allowed prosecution of discriminatory acts in the public sphere; a way of expanding such protections to the private sphere was being discussed.

Until a new, unified code of penal procedure, now in preparation, was adopted and entered into force, existing federal and cantonal codes would continue to apply, the delegation said, but basic protections applied nonetheless even if they were not explicitly specified in some of these codes; for example, the right of a detainee to contact close family members applied throughout Switzerland. A "judge of freedom" now monitored conditions and situations of detention; regulations also required access to a lawyer at an early stage of detention proceedings; a new Geneva regulation required access to a lawyer after the first questioning of a suspect by police, and in any case no later than 24 hours after his being taken into custody. There were various reasons for calling for release of a person from detention, including the existence of a viable alternative, failure of the authorities to carry out a diligent investigation, or when the length of detention approached the length of a sentence that might result from conviction under the charge filed.

On two specific tragic occasions, expulsions from Switzerland had resulted in death, the delegation said. In one case, the doctor involved had been found negligent in terms of not identifying the medical situation that had contributed to the death, and had been tried for negligence. Two of the police officers involved had been released without charge; in the case of their superior, there would be further charges and a further trial would occur. In the second case, a man of Nigerian nationality had died, and an investigating judge had rejected the resulting complaint, ruling that the policeman had acted in compliance with cantonal guidelines. The private lawyer involved had already indicated that he would appeal dismissal of the case.

A proposal to allow police to use "deforming" ammunition, aimed at stopping people rather than penetrating the body, had been opposed by the Federal Council except for limited situations, the delegation said; many other police forces around the world had such ammunition. It was understood that use of such ammunition except under certain unusual circumstances would not be in the spirit of the Covenant. News reports on the matter had been somewhat inaccurate. The ammunition concerned did not consist of "dum-dum" bullets.

No one wanted to undermine fundamental rights, the delegation said, but most Governments had provisions for emergency situations in which certain rights might have to be limited; Constitutional standards or laws on such matters had of necessity to be hypothetical; it had to come down in the end to Government judgement in each specific case about what to do and how far to go in limiting the exercise of some rights.

The delegation also answered written questions submitted by the Committee in advance and falling under the general topics of treatment of prisoners and detainees; the right to a fair trial; deportation; freedom of movement and family life; rights of the child; and protection of minorities.

HEINRICH KOLLER, Director of the Federal Office of Justice of Switzerland, said among other things that directives were being developed in relation to stages of action related to the carrying out of expulsions; further, a special team would be established so that police officers who carried out repatriation under escort would be well and specifically trained. Much attention would be paid to respecting the rights of the persons repatriated. A Recourse Commission had existed for some 10 years which dealt, impartially and independently, with appeals of decisions of the Federal Office on Refugees; appeals before the Commission also could be based on claims of violation of national or international law, or on claims of abuse. It was true that the term "incommunicado detention" still existed in three codes of penal procedure in parts of French-speaking Switzerland. However, this phrase was perhaps unfortunate and evoked draconian conditions that did not exist; only restrictions that complied with the standards of the European Convention on Human Rights and Swiss jurisprudence occurred in the three cantons that had this kind of isolated detention. The preliminary draft of the Swiss Penal Procedure Code, meant to apply uniformly throughout the country, did not include the phrase "incommunicado detention" and provided that conditions of detention should not be more severe than necessary to meet the goal of the detention, and that detainees would be able to contact their legal counsels freely.

On the frequency in which preliminary detention was extended beyond the initial 24 hour deadline, Mr. Koller said, precise details were not available. According to statistics, in total 6,815 detention posts were available throughout the country for the execution of sanctions and provisional detention; in March, occupation of these posts amounted to 75 per cent. Thirty-two per cent of detainees were concentrated in three locations. Occasional overcrowding of temporary detention centres had eased recently.

Measures had been taken to shorten detention periods prior to expulsions, Mr. Koller said, mainly through streamlining organizational and administrative activities related to expulsions. The Federation provided cantonal authorities with administrative and logistical support so as to speed up repatriations. Foreigners subject to administrative internment could be assisted by counsel as far as they could cover the cost; it also had been determined that a foreign national was entitled to counsel without cost at the latest during any procedure regarding prolongation of his detention with a view to his repatriation, which was to say after three months.

Asylum-seekers claiming persecution in their home countries had their cases considered carefully and fairly, Mr. Koller said, and generally received asylum in appropriate cases. Asylum-seekers whose cases the State decided not to consider had the right to appeal. Under the country's new asylum law, there was no maximum specified limit on the time required to act on an asylum request, but in cases where it was determined that the request did not have a reasonable basis, the request could be rejected within 20 days. Appeals of such decisions could lengthen the time period by at least six weeks.

There was no difference between Swiss nationals and foreigners in terms of freedom of movement in Switzerland, Mr. Koller said. The freedom to take up abode was different; the new Federal Constitution allowed Swiss to freely take up abode in any part of the country; foreign nationals did not have the same right. Authorization for such foreigners to take up abode was valid only for the canton where the permission was given; permission had to be sought from a different canton if such a foreign national wished to move, although often such approval was granted.

The compatibility of the ban on family reunification for seasonal workers tied in with the standards of the Covenant and the European Convention on Human Rights, Mr. Koller said. To have the right to family reunification, a foreigner must have the right to take up residence in Switzerland, according to the Federal Tribunal; the European Court on Human Rights had determined that Switzerland did not violate the European Convention on Human Rights by refusing family reunification to those who resided in Switzerland for under a year; and by definition, seasonal workers' stays were temporary. It was planned to abolish the status of "seasonal worker" and to replace it with a "short status" system providing for stays up to a
maximum of one year, with provisions for prolonging it by a maximum of two years; this authorization could be set up to include, for the duration of the stay, the reunification with the parent of unmarried children under 18 years of age if all family members arranged to live together.

All Swiss were "minorities" in some sense, Mr. Koller said, and the laws were set up to protect minorities. Measures had been taken to promote such minority languages in Switzerland as Romansch and Italian. For religious minorities, the new article 15 of the Constitution took into account caselaw of the Federal Tribunal and stipulated that anyone had the right to belong to a religious community or to follow religious instruction. Other measures had been taken to protect the rights, interests and lifestyles of "Travellers".

The Swiss Government had approved a programme allocating 15 million Swiss Francs for education of the Swiss population, particularly children and adolescents through the schools, in human rights and in the battle against racism and intolerance, Mr. Koller said.

Undocumented people were not a homogeneous group, another member of the delegation said, but they generally sought without permission to stay in Switzerland for personal or economic reasons; in many cases such people had been denied residence and had disappeared following the decision to deny residence. Sometimes they remained in the country for years. The Federal Council was opposed to collective regularization of the situation of these people because of the disparities prevailing among them; the system was to have individual consideration of each case as it came up.

Responding to questions put by Committee members, the delegation said among other things that a Commissioner of Police Ethics looked into all complaints against the police and into each case where force was used, and determined if -- apart from any outside, legal charges that might be brought -- internal disciplinary measures or police department policy changes were called for.


Preliminary conclusions and recommendations

Brief preliminary conclusions and recommendations were read out by Committee Vice-Chairman David Kretzmer. The panel's official conclusions and recommendations will be issued before the end of its autumn session on 2 November.

Mr. Kretzmer said, among other things, that progress had been made in Switzerland since consideration of the country's first report to the Committee; there was a new Constitution, for example.

A few issues were of concern to members, he said. Switzerland's reservations to the Covenant, especially that to article 26, were among them. The special federal structure of the country seemed to lead to some problems, such as in enforcing the Covenant throughout all the Cantons and communities in Switzerland he said. Concern was felt over complaints of police treatment of foreigners and minority persons, as well as over the way some complaints had been handled; also there was some disquiet over some asylum procedures. The Committee was impressed by the many steps taken to battle racism and other forms of discrimination. The many foreigners residing in Switzerland led to continuing concern that their rights would be fully protected, Mr. Kretzmer said. Further steps to enhance the equality of women also might be useful, he said, to compliment the extensive efforts already being made.




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