The Committee against Torture today concluded its consideration of the eighth periodic report of Switzerland, with Committee Experts praising the creation of a national human rights institution, and raising questions about police brutality and solitary confinement.
Todd Buchwald, Committee Expert and Country Co-Rapporteur, said it was very encouraging that the Swiss national human rights institution had been established. Could information be provided on sourcing of its funds? Would funding depend on a decision by the Government?
There were various reports of violence in federal asylum centres, Mr. Buchwald said. Had changes already been made in response? What lessons had been learned, and how had they been incorporated into policy and training? Huawen Liu, Committee Expert and Country Co-Rapporteur, asked if the State party had considered establishing an independent mechanism to investigate and prosecute complaints related to police brutality and to retain statistical data on all complaints, prosecutions and convictions.
Mr. Liu also asked what measures Swiss cantons had taken to ensure that placement in segregation as a disciplinary measure never exceeded 14 days. Solitary confinement should be reassessed at least once every three months and the choice to extend solitary confinement should be sufficiently backed up with evidence. How did Switzerland guarantee this?
Introducing the report, Bernardo Stadelmann, Deputy Director of the Federal Office of Justice in the Field of Criminal Law in the Federal Department of Justice and Police, said the creation in May of the Swiss Institution for Human Rights, had concluded a political process of more than 20 years. Its Directive Committee had been elected during an inaugural assembly, and would now set up the institution in accordance with the Paris Principles. This independent body would make an important contribution to the field of torture prevention.
The delegation added the Confederation and the cantons were responsible for providing adequate funding to the national human rights institution. A maximum of one million Swiss francs per year in funding from the A maximum of one million Swiss francs per year in funding from the Federal Department of Foreign Affairs had been allocated to this institution for 2023 to 2026. The institution would decide independently the way in which it intended to implement its mandate and use its resources.
Mr. Stadelmann noted that an investigation had been undertaken following accusations of excessive use of violence by the security forces in federal asylum centres. While the investigation’s report showed that human and fundamental rights were in principle respected in federal asylum centres, various follow-up measures had been taken. These included implementation of an overarching violence prevention plan, hiring of extra supervisory staff and the opening of an independent reporting office. Security incidents had been significantly reduced.
On solitary confinement, the delegation said that it was used as a last resort disciplinary sanction. In the majority of cantons, it was very rare for a duration of more than 10 days to be ordered. The cantons of Vaud and Neuchâtel, which had a maximum duration of more than 20 days, had plans to amend their legislation in line with international guidelines. The principle of proportionality was respected. People in solitary confinement were guaranteed medical care, and benefitted from one hour of outdoor exercise every day.
In closing remarks, Claude Heller, Committee Chair, congratulated the delegation on the quality of its answers and the open and frank spirit in which it participated in the dialogue. This was an indication of Switzerland’s commitment to human rights. The Committee, he said, looked forward to continuing its collaboration with Switzerland on issues it had raised, and hoped that its recommendations would be useful in strengthening the implementation of the Convention in the State.
Mr. Stadelmann, in his concluding remarks, said that the Federal Council would contact the cantons and concerned authorities promptly regarding the Committee’s recommendations, and disseminate them widely through various means. Regular exchanges with the Committee would contribute to improving the implementation of the Convention and strengthening human rights in Switzerland. The State party would continue to collaborate closely with the Committee towards these aims.
The delegation of Switzerland consisted of representatives from the Federal Department of Justice and Police, the Federal Department of Interior, Federal Department of External Affairs, the Conference of Directors of Cantonal Departments of Justice and Police, the Latin Conference of Heads of Departments of Justice and Police, the Latin Conference of Heads of Departments Competent in Matters Relating to Asylum and Migrants, the Latin Conference of Directors of Military Affairs and Protection of the Population, the Cantonal Police of Geneva, the Swiss Centre of Expertise in the Field of Penal Sanctions, and the Permanent Mission of Switzerland to the United Nations Office at Geneva.
The Committee will issue concluding observations on the report of Switzerland at the end of its seventy-seventh session on 28 July. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. Summaries of the public meetings of the Committee can be found here, and webcasts of the public meetings can be found here.
The Committee will next meet in public on Tuesday, 18 July at 10 a.m. to examine the seventh periodic report of New Zealand (CAT/C/NZL/7)
Report
The Committee has before it the eighth periodic report of Switzerland (CAT/C/CHE/8).
Presentation of Report
BERNARDO STADELMANN, Deputy Director of the Federal Office of Justice in the Field of Criminal Law in the Federal Department of Justice and Police, said Switzerland was convinced that the periodic review of the implementation of the Convention and the good functioning of the national prevention mechanisms were essential elements in combating torture and ill-treatment. The Government reaffirmed its zero-tolerance stance for all acts of torture or ill-treatment.
In May, the Swiss Institution for Human Rights, an independent body, was created, concluding a political process of more than 20 years. Its Directive Committee had been elected during an inaugural assembly, and would now set up the institution in accordance with the Paris Principles. The institution’s tasks included documentation, research, advice and education in human rights and awareness-raising work in Switzerland. It alone decided how it would carry out its tasks and use its resources. It would cooperate with the federal and cantonal authorities, but also with non-governmental organisations, the private sector, the scientific community and international organisations. It would make an important contribution to the field of torture prevention.
The behaviours listed in articles one and four, subparagraph one of the Convention were already subject to criminal prohibition in Switzerland. However, the Swiss Parliament was also including these crimes in the list of crimes within the Swiss criminal code, implementing a Committee recommendation. Currently, this new criminal standard was being developed.
Projects were underway to improve the situation of those in pre-trial detention. A pilot independent living project had been undertaken in the Solothurn canton that aimed to improve the detention conditions of detainees. This project could be extended to other regions in Switzerland. Since 2022, key figures on places in cantonal penitentiary establishments and their occupation rates were published regularly. The cantons of Vaud and Geneva had developed construction projects to create new places in prisons and new places of detention.
Since autumn 2019, basic police training lasted two years throughout Switzerland. Issues related to human rights, protection against discrimination and diversity management were integral parts of basic training. There were also various ongoing forms of training. Several cantons had also opened their police forces to persons of foreign origin. The Swiss criminal procedure remained the primary guarantee of independent legal oversight, requiring investigation by the authorities.
On 1 March 2019, the asylum system was restructured to shorten asylum procedures. Free legal protection had been extended to all asylum seekers. An investigation had been undertaken following accusations of excessive use of violence by the security forces in federal asylum centres. While the investigation’s report shared the view of the National Commission for the Prevention of Torture and the High Commissioner for Refugees that human and fundamental rights were in principle respected in federal asylum centres, various follow-up measures had been taken. An overarching violence prevention plan had been developed and implemented. In addition, extra supervisory staff for conflict prevention had been hired and an external and independent reporting office had been opened. Security incidents had been significantly reduced.
As well as special flights, the National Commission for the Prevention of Torture was currently present in all repatriations by ship under police escort. A centre for administrative detention had been established at Zurich Airport and currently offered only administrative detention places. At parliament’s request, the Federal Council had examined whether to establish electronic surveillance as an alternative to administrative detention, but had decided that the current possibilities were sufficient. The Federal Council created a legal basis to ensure people were subjected to presential obligation. It would present a draft bill on the matter before the end of the year.
Questions by Committee Experts
TODD BUCHWALD, Committee Expert and Country Co-Rapporteur, said Switzerland was a country with a long and very impressive tradition of promoting the development of international law, international humanitarian law, the prohibition against torture in the fight against impunity, not only advocating but being a leader in the field. Its eighth report was very informative and transparent.
On the definition of torture, the delegation had said legislation was before the parliament and the Committee’s recommendation of having a dedicated definition in the country’s law would be implemented. What was the anticipated timetable? The Convention had a set of rules that needed to be applied to those things which qualified as torture. To what extent did the pending legislation accommodate those rules? What did the legislation say about penalties for this new-to-be defined crime of torture?
The Committee had indicated the view that States should not apply statutes of limitations to torture. Could the delegation provide more information about the range of statute of limitations that might apply under the different criminal provisions under which torture could presently be prosecuted in Switzerland? Could the delegation provide more context on crimes for which Swiss law eliminated statutes of limitations?
When torture qualified as a war crime or crime against humanity, were provisions consistent with the requirements of the Convention regarding the required severity of the penalty? Were there provisions that made a superior responsible for failing to take appropriate actions to prevent torture in cases that did not constitute crimes against humanity or war crimes? The Convention provided that “no extraordinary circumstances whatsoever” might be invoked as a justification for torture.
It was very encouraging that the Swiss national human rights institution had been established. Could information be provided on sourcing of its funds? Would funding depend on a decision by the Government? Could information be provided on the independence of the National Commission for the Prevention of Torture, including steps taken to sever the links between the Commission and the Department of Justice and Police? To what extent had the Commission’s recommendations been implemented?
Was the Istanbul Protocol considered when assessing claims by asylum seekers that they had been victims of torture? Did the Swiss Government cover the costs of medical examinations, and were examinations provided in accordance with the Istanbul Protocol? What weight was given to expert reports under the Istanbul Protocol when they were provided?
Switzerland divided extradition requesting countries into three categories. Which countries were included in “category two”, countries where “the risk of human rights violations could be greatly reduced through diplomatic assurances”? What was the nature of diplomatic assurances provided? Could the delegation provide a list of “category three” countries, where there were “risks of being subject to torture”? To what extent had the State party sought to rely on diplomatic assurances in asylum cases? How was it assured that removals were not carried out before the appellate authority decided whether they should be suspended? What governed the treatment of persons whose removals had been suspended? Did the State still have authority to use shackling or similar restraints on “special flights”?
There were various reports of violence in federal asylum centres. Had changes already been made in response? What lessons had been learned, and how had they been incorporated into policy and training? Did the State ensure the availability of safe and secure complaint mechanisms, and provide effective means for informing people of their rights? What had been done to respond to concerns about xenophobic and racist attitudes among some State officials?
HUAWEN LIU, Committee Expert and Country Co-Rapporteur, said it was commendable that the Government had taken efforts to implement the recommendations of the Committee and enforced the decisions on individual communications adopted by the Committee in several matters.
The Committee welcomed the various legislative, institutional and policy measures taken to implement the Convention, including the revision of the law to simplify the asylum application procedure and naturalisation procedures for third-generation foreign nationals. A legal amendment recognising same-sex marriage had been passed in 2022. The Committee noted with appreciation that Switzerland had ratified the International Convention for the Protection of All Persons from Enforced Disappearance, the 2014 Protocol to the International Labour Organization Convention on Forced Labour, and the Optional Protocol to the Convention on the Rights of the Child concerning the communications procedure. The Expert noted that Switzerland paid special attention to the issues of freedom of expression, death penalty, torture and minorities in its foreign policy.
There were reports that detention decisions concerning immigrants did not comply with the principle of proportionality. What measures did Switzerland and its cantons take to consider the principles of necessity and proportionality and ensure administrative detention was only used as a last resort? How was consistency across the cantons in this regard ensured? What alternatives to detention were offered? Treatment of asylum seekers varied greatly among cantons. Detention had often been used to facilitate deportations. Children between the ages of 15 and 18 continued to be detained for immigration-related purposes. Had the State party taken measures to ensure minimum standards of treatment in federal and canton reception centres across the country, considering the specific needs of refugees and asylum-seekers, including unaccompanied and separated children?
Could the delegation provide information on the average period of administrative detention of irregular immigrants from 2018 to now? Had the recommendation by the Conference of Cantonal State Council Directors of Social Services on unaccompanied asylum-seeking children and on emergency assistance been accepted and implemented? What steps would the Swiss authorities undertake to reform the reportedly prison-like environment of administrative detention, including limitations on visitation rights and confiscation of personal belongings?
What measures had the State party taken to ensure that children could only be separated from their families if a court determined that it was in their best interests? The Committee welcomed the Confederation’s request to the cantons not to detain minors under the age of 15 and hoped that this recommendation would be followed. How many cantons were currently abiding by this request? Could the delegation provide up-to-date figures on minors in administrative detention? What was Switzerland doing to end detention of children?
There were reports that, in practice, border procedures did not distinguish between minors and adults, in violation of the Swiss Foreigner Act. What steps had Switzerland taken to ensure the best interests of unaccompanied children in repatriation procedures conducted at the Swiss border? What measures did Switzerland take to investigate reports of children who allegedly went missing during asylum procedures, determine their whereabouts, and prosecute those responsible for relevant crimes? What were the cantons doing to respond? Were there any standard procedures or protocols being designed on which the cantons could draw for help in addressing these issues?
The Committee welcomed the measures taken to improve conditions for unaccompanied children in federal detention centres and reform the asylum system. However, there were 2021 reports that children in federal asylum centres were subjected to inhumane treatment, including beatings and being placed in “reflection rooms”. What was the current situation? What measures did the State party take to ensure that allegations of cruel treatment or punishment of asylum-seeking and refugee children in facilities were fully investigated, perpetrators punished, and that child victims received adequate remedies? How could children report cruel, inhuman or degrading treatment or punishment?
The Committee noted the efforts made by the State party to improve detention conditions, as well as its active expansion of new detention facilities. However, there were concerning reports that several projects aimed at improving the living conditions in federal asylum centres had been postponed. Could the delegation provide information on the current accommodation of the new Dardelles facility in Geneva? What progress had been made on the plans to enlarge forensic clinics and institutions to accommodate prisoners serving sentences? What progress had been made on implementing the Committee’s recommendation to request the judicial authorities to favour alternative sentences and measures to detention, and take measures to build or expand prisons? What measures had the State party taken to ensure that the infrastructure of Champ Dollon Prison complied with the requirements applicable to facilities for the execution of sentences? It was reported that in the federal asylum-seekers centres, there were no doctors, only nurses. Was there a plan to improve the situation?
What measures had Switzerland taken to ensure that detainees with psychosocial disabilities were placed in specialised facilities, or received treatment suitable for their situation in regular prisons? How did Switzerland ensure that detention in psychiatric institutions was only considered as a last resort? What measures had Swiss cantons taken to ensure that placement in segregation as a disciplinary measure never exceeded 14 days? Had any cantons considered introducing an appeal period of at least 10 days against disciplinary procedures? Solitary confinement should be reassessed at least once every three months and the choice to extend solitary confinement should be sufficiently backed up with evidence. What measures did Switzerland take to guarantee this?
There were reports that human rights were still systematically violated during pre-trial detention, and the suicide rate during pre-trial detention was much higher than that in the criminal system. Between 2015 and 2021, 29 people had taken their own lives in pretrial detention, while 17 suicides took place during the execution of a criminal sentence. There were significant gaps in suicide prevention in custodial settings. There was practically no mention of suicide prevention measures in cantonal legislation, no systematic legal support for prisoners and no protection against serious violations of prisoners’ basic rights. Were there measures to resolve these issues?
The Committee welcomed the adoption of the Federal Shelter Centre Violence Prevention Plan and the establishment of an internal complaint system by the State party. The Human Rights Committee had pointed out that the police continued to apply non-objective criteria in exercising their functions, based on the physical appearance of persons, their skin colour and their ethnic or national origin.
What measures did the State party take to ensure prompt, thorough and impartial investigation of cases of racism committed or participated in by the police? What measures did the State party take to ensure that the persons responsible for these acts were prosecuted and appropriately punished, and to provide adequate remedies to victims or their families?
The Committee remained concerned about the lack of an independent and universally accessible mechanism for filing complaints against the police.
The Committee was also seriously concerned about the lack of centralised data at the federal level on the number of complaints, prosecutions and sanctions related to alleged abuse by the police. Had the State party considered establishing an independent mechanism to investigate and prosecute complaints related to police brutality and to retain updated, centralised and disaggregated statistical data on all complaints, prosecutions and convictions?
How many non-urgent, irreversible surgical and other procedures had been undertaken on intersex children before an age at which they were able to provide informed consent? What measures did the State party plan to stop this practice? Did the State plan to respond to calls for the revision the criminal code to prohibit genital mutilations of intersex children? What measures were in place to guarantee free psychosocial support for all persons concerned and their parents? What criminal or civil remedies were available for intersex people who had undergone involuntary sterilisation when they were children? Were these remedies subject to any statute of limitations? Did the State party ensure that medical records could be consulted and investigations initiated in all cases where intersex persons were treated or operated on without their effective consent?
