Committee against Torture begins examination of Report of Switzerland

Committee against Torture
AFTERNOON 30 April 2010

The Committee against Torture this afternoon began its consideration of the sixth periodic report of Switzerland on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Bernardo Stadelmann, Deputy Director of the Federal Justice Office at the Swiss Federal Department of Justice and Police, noted that the report covered the period from 1 July 2000 until 30 April 2008; since then, on 24 September 2009, Switzerland had ratified the Optional Protocol to the Convention against Torture. Indeed, Switzerland had played a critical role in the adoption of that instrument. The Swiss Government had subsequently set up a National Commission for the Prevention of Torture, which acted as a national preventive mechanism, and it had begun its work on 1 January 2010.

Regarding the situation of asylum-seekers in Switzerland, Mr. Stadelmann said that a partial revision of the Asylum Act had been initiated in January 2009, and the bill was expected to be presented to Parliament in 2010. The expert commission appointed by the Federal Department of Justice and Police had drafted amendments to the provisions concerned that made a clear distinction between the summary procedure – in which an application might be dismissed immediately and where an appeal had to be filed within five days, as was the case at present – and a unified asylum procedure – in which the circumstances were considered and where any appeal had to be filed within 15 days, whereas currently the period was 30 days. The summary procedure for dismissing an application would be limited to cases originating from a definite third State and to transfer procedures under the Dublin Convention of the European Union. The failure of an applicant to provide suitable identity documents would therefore no longer result in the summary dismissal of an application for asylum.

Serving as Rapporteur for the report of Switzerland, Committee Expert Abdoulaye Gaye, while welcoming Switzerland's ratification of a number of new international human rights instruments, in particular the Optional Protocol to the Convention against Torture and the Rome Statute, remained concerned about the lack of integration of the offence of torture as set out in the Convention into Swiss legislation. Acts of torture and ill-treatment were then often prosecuted under lesser criminal provisions, which resulted in the application of lesser penalties than torture convictions would have. Moreover, Switzerland urgently needed to put into place an independent monitoring mechanism for deportations of foreigners. Non-governmental organizations had reported on numerous instances of abuse, and degrading or humiliating treatment in that context. Of particular concern was the case of a Nigerian deported by air from Zurich who had died from asphyxiation, and it was asked what investigation and prosecutions had been brought into that incident.

Fernando Mariño Menendez, the Committee Expert serving as Co-Rapporteur for the report, was worried about administrative detentions of foreigners by police, which did not require that the regular legal guarantees be applied as far as he could see. Also of concern were overcrowding in prisons; complaints of ill-treatment in police detention centres, and a lack of investigations into those complaints; and the situation of foreign women subject to domestic abuse who risked losing their residency status if they left their spouses.

Also representing the delegation of Switzerland were representatives from the Swiss Federal Office for Migration; the Federal Department of Foreign Affairs; the Geneva Police Department; the Federal Office of Justice; and the Permanent Mission of Switzerland to the United Nations Office at Geneva.

Switzerland is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 10 a.m. on Monday, 3 May, it will hear the responses of Switzerland to questions put by Experts today.

Report of Switzerland

The sixth periodic report of Switzerland (CAT/C/CHE/6) notes that, on 20 March 2008, Parliament adopted the Federal Act on the Use of Force and Police Measures in Spheres within the Jurisdiction of the Confederation with the aim of standardizing the regulation of the use of police force, particularly in the context of the repatriation of foreigners, and to ensure that any use of force is proportionate. The use of physical force, auxiliary means and weapons must be proportionate to the circumstances and, to the maximum extent possible, preserve the integrity of the person concerned. Following a particularly protracted procedure to iron out differences of opinion, the use of incapacitating devices (Tasers or stun guns) was allowed, subject to strict conditions. Conversely, techniques involving the use of physical force in a way that could block the airways or seriously damage the health of the persons concerned are not authorized. Medicines can be administered or prescribed only if medically indicated and cannot be used, in the place of auxiliary means, to calm or sedate the person. Only specially trained persons may be recruited by the authorities for operations necessitating the use of force. The Act applies to any federal authority that may use force or police measures in the performance of its functions.

With regard to case law of the Committee against Torture relating to the Convention, during the period in question, 29 new individual communications were lodged against Switzerland. At the same time, three communications were declared inadmissible and six were removed from the roll. A violation of article 3 of the Convention was confirmed in three cases where individuals had been returned to their own country, and denied in seven others. Where the Committee found a violation of article 3 of the Convention, the author of the communication was granted temporary admission (two cases) or awarded refugee status (one case).

Presentation of Report

BERNARDO STADELMANN, Deputy Director of the Federal Justice Office at the Swiss Federal Department of Justice and Police, reaffirmed Switzerland's zero tolerance approach towards all acts of maltreatment or torture. The present report covered the period from 1 July 2000 until 30 April 2008; since then, on 24 September 2009, Switzerland had ratified the Optional Protocol to the Convention against Torture. Indeed, Switzerland had played a critical role in the adoption of that instrument. A Geneva lawyer, Jean-Jacques Gautier – the founder of the Association for the Prevention of Torture – had launched the initiative, and Switzerland had taken up the idea and had proposed drawing up the Optional Protocol, which had finally been adopted in 2002. The Swiss Government had subsequently set up a National Commission for the Prevention of Torture, which acted as a national preventive mechanism, and it had begun its work on 1 January 2010. The commission consisted of 12 members from the fields of law, medicine, criminal prosecution and the administration of institutions for the execution of sentences and measures, and was chaired by Switzerland's representative on the European Committee for the Prevention of Torture.

Following its fifth visit to Switzerland, the European Committee for the Prevention of Torture had published its report in November 2008. The visit had focused on the situation of persons arrested by the police or subject to in-patient detention measures, as well as on detention conditions in high security units. The European Committee had also been interested in the situation of minors in homes for young offenders. The Committee had found no indications of torture or ill-treatment in the establishments it had visited. It nevertheless had issued recommendations for improving the protection of persons held in police custody, detained in pre-deportation centres, penal institutions or young offenders' homes. The Swiss authorities had already been able to implement some of those recommendations, Mr. Stadelmann noted.

Also useful to mention was the progress that had been made with regard to the adaptation of the Swiss Criminal Code to the Rome Statute, which had come into force on 1 July 2002. Parliament was currently debating a bill aimed at introducing the concept of crimes against humanity into the Criminal Code and to define in greater detail the elements constituting war crimes.

At the internal level, the Unified Code on Criminal Procedure would come into force on 1 January 2011. It was intended to replace the 26 cantonal criminal procedure codes and the Federal Act on the Administration of Federal Criminal Justice. The new Criminal Procedure Code provided for improved rights of defence, more extensive rights for victims and an expansion of witness protection measures. A separate act would cover the law applicable to minors, with a focus on their protection and education. Bringing an end to the diversity of criminal procedure provisions would better ensure equality before the law and legal certainty, while at the same time making it easier to combat crime, Mr. Stadelmann emphasized.

The new Civil Procedure Code would also come into force on 1 January 2011, Mr. Stadelmann added. It aimed to provide better access to justice, and would also increase the transparency and predictability of legal rules and allow for a unified legal system.

Mr. Stadelmann said that a partial revision of the Asylum Act had been initiated in January 2009, and was expected to be presented to Parliament in 2010. In the course of that process, several organizations consulted had signalled a lack of consistency in the grounds applied for dismissing an application without considering the detailed facts of the case, and it had been suggested that the procedure for dismissing applications be replaced with an accelerated procedure involving a more detailed examination of the case. In that context, an adaptation and simplification of the procedure were justified. The expert commission appointed by the Federal Department of Justice and Police had drafted amendments to the provisions concerned that made a clear distinction between the summary procedure – in which an application might be dismissed immediately and where an appeal had to be filed within five days, as was the case at present – and a unified asylum procedure – in which the circumstances were considered and where any appeal had to be filed within 15 days, whereas currently the period was 30 days.

In conclusion, Mr. Stadelmann said that the summary procedure for dismissing an application would be limited to cases originating from a definite third State and to transfer procedures under the Dublin Convention of the European Union. That would mean that the failure of an applicant to provide suitable identity documents would no longer result in the summary dismissal of an application for asylum. Furthermore, as an accompanying measure intended to improve the legal protection provided to asylum-seekers, legal representation during hearings – currently provided by aid organizations – would from now on be replaced by an advisory service for asylum-seekers subsidized by the Confederation, and available throughout the processing and evaluation of asylum applications.

Questions Raised by Committee Experts

ABDOULAYE GAYE, the Committee Expert serving as Rapporteur for the Report of Switzerland, while welcoming Switzerland's ratification of a number of new international human rights instruments, in particular the Optional Protocol to the Convention against Torture and the Rome Statute, remained concerned about the lack of integration of the offence of torture as set out in the Convention into Swiss legislation. Acts of torture and ill-treatment were then often prosecuted under lesser criminal provisions, which resulted in the application of lesser penalties than torture convictions would have. Switzerland had not fulfilled its obligations in this regard.

The lack of a definition of torture in Swiss legislation had further implications. Without such a definition, it could not tackle clearly questions of non-refoulement (duty not to return a person to a country where they ran a risk of torture or ill-treatment), as set out in article three of the Convention. There was clearly a risk that the principle of non-refoulement was not respected under the current situation.

Turning to the creation of new institutions, Mr. Gaye asked if the National Commission for the Prevention of Torture could refer cases to the judicial authorities? In addition, during the Universal Periodic Review process, Switzerland had committed itself to create a national human rights institution. However, to date, it appeared that that had remained an empty promise; any further information on new developments would be appreciated.

Mr. Gaye also expressed concern about the sanctioning of the use of Tasers (or stun guns) by law enforcement authorities in Switzerland; and on a lack of clarity in Swiss law with regard to whether a person could invoke the defence of superior orders.

It was a pressing matter to put into place an independent monitoring mechanism for deportations of foreigners, Mr. Gaye said. Non-governmental organizations had reported on numerous instances of abuse, maltreatment, and degrading or humiliating treatment in that context.

Mr. Gaye wished to highlight the particular case of a Nigerian deported by air from Zurich who had died from asphyxiation. He was concerned that the witnesses to that event were in the same conditions as the man who lost his life, and therefore the usefulness of those statements was in question. What investigation and prosecutions had been brought into that incident?

In that connection, Mr. Gaye said the claim that there were no cases of torture by the authorities was in conflict with situations such as the cases he had just cited, as well as numerous others. In another such case, an individual who refused to get on a plane had claimed he had been beaten and forced onto the plane by several officers. Those hearing the claim, and who judged that it was without merit, were the very officers that he had accused. He asked for the delegation to comment on that case.

A further concern was that Swiss airports, and specifically Geneva airport, had been used for carrying out extraordinary renditions, or transporting persons without due process for secret interrogation and detention in third countries. Mr. Gaye was not satisfied with the replies that had been received so far from Switzerland. In one such case, it had been reported that the investigation had been suspended, without a judicial decision. That seemed odd to him and he asked for confirmation that such a procedure was legal.

FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Co-Rapporteur for the Report of Switzerland, was worried about administrative detentions of foreigners by police, which did not require that the regular legal guarantees be applied as far as he could see. When did they have the right to see a lawyer, to contact a family member, for example?

Mr. Mariño Menendez echoed the Rapporteur's concerns about the need for monitoring of expulsions and again drew attention to the numerous claims of disproportionate use of force and abuse of authority in this context. Did Swiss law provide for immediate executive expulsion of foreigners for security reasons? He noted that that process – which was immediate and against which there was no possibility of an appeal – was used by some European countries.

Mr. Mariño Menendez understood that guidelines were being drawn up on techniques for the expulsion of foreigners. Was it envisaged that Taser guns would be able to be used in that context?

Further concerns raised by Mr. Mariño Menendez included overcrowding in prisons; complaints of ill-treatment in police detention centres, and a lack of investigations into those complaints; and the situation of foreign women subject to domestic abuse who risked losing their residency status if they left their spouses.

Other Committee Experts then raised a number of concerns and made comments on a variety of issues, including how victims and their families were informed of how to apply for compensation for acts of torture and ill-treatment; chronic overpopulation – reaching to 200 per cent – in a correctional facility in French-speaking Switzerland; information as to whether prisoners had access to examination by a doctor of their choice; and details and statistics about the Roma minority, including how many Roma were in detention in Switzerland and how many complaints of torture or ill-treatment had been lodged by Roma against Swiss authorities.

A number of Experts asked questions about the situation of foreigners and asylum-seekers, including what information materials were available to asylum-seekers about their rights and the procedures and services open to them, and in what languages; what the physical conditions were in the airport holding centres, including whether the asylum-seekers had adequate access to drinking water and fresh air; whether the review process for asylum claims contained full due process rights or was more of a summary administrative procedure; and a high number of minors in detention – 71 – awaiting expulsion and what services were available to them. An Expert was particularly concerned about reports from non-governmental organizations that unaccompanied minor asylum-seekers were disappearing, many of them before even leaving the airport, and the concern was that they were being trafficked or used for forced labour in domestic service or the sex trade. There were a registered 631 minor asylum-seekers in 2008, and only 427 in 2009, and apparently the discrepancy had not been explained. She wondered if any investigation into the fate of those children was planned.

An Expert raised the issue of the case of Hannibal Gaddafi and his wife, who had been arrested by the Geneva authorities on charges of abusing their two domestic employees. Later, the charges were dropped, and the claimants accepted compensation, but the Expert wondered about the parameters defining police action in such cases.

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