Forced Labour Convention, 1930 (No. 29) - Switzerland (Ratification: 1940)
Protocol of 2014 to the Forced Labour Convention, 1930 - Switzerland (Ratification: 2017)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Recalling that in September 2017 Spain ratified the Protocol of 2014 to the Forced Labour Convention, 1930, the Committee notes the information provided by the Government in its 2019 report on the measures taken to apply the Convention as supplemented by the Protocol.

Articles 1(1) and 2(1) of the Convention, and Article 1(2) of the Protocol of 2014. Systematic and coordinated action. Trafficking in persons. In its previous comments, the Committee noted the information provided by the Government on the implementation of the National Plan of Action against trafficking in human beings (2012–2014). The Committee also noted that the Coordination Unit against Trafficking in Persons and Smuggling of Migrants (SCOTT) was preparing a new national plan of action that was due to be adopted at the end of 2016 and it requested the Government to provide information on the implementation of the new national plan of action.

The Committee notes the information contained in the Government’s report, according to which the second National Plan of Action against trafficking in human beings (2017–2020) entered into force in January 2017. It was prepared by the competent federal and cantonal services, as well as civil society organizations. The National Plan of Action establishes priorities, determines the overall strategy to combat trafficking in persons and specifies the federal and cantonal services with the main responsibility for the implementation of the 28 measures that it contains. These measures are organized around the four strategic areas of prevention, criminal prosecution, the protection of victims and partnership.

The Committee also notes that, according to the information contained in the 2019 report of the Group of Experts on Action against Trafficking in Human Beings (GRETA) (paragraphs 18 et seq.), the SCOTT finished operating at the end of 2018. The Government planned to replace the SCOTT with a Platform against Trafficking in Persons and Smuggling of Migrants, which would not have decision-making powers. Moreover, the Executive Secretariat of the SCOTT was placed under the National Crime Prevention Division of the Federal Police Office (FEDPOL) and was renamed the Service to Combat Trafficking in Persons and Smuggling of Migrants (SETT). A working group was set up to draw up the rules of procedure for the operation of the new platform. In parallel, the working group requested that the takeover by FEDPOL of responsibility for all the activities of the SCOTT, as set out in section 13 of the Ordinance on measures to prevent offences related to trafficking in human beings, be formally approved by the Head of the Federal Department of Justice and Police. The Committee further notes that, according to the information available on the official website of FEDPOL, federal collaboration occurs through cantonal round-tables, which have already been established in 18 cantons. The Committee therefore requests the Government to provide information on: (i) the implementation of the National Plan of Action 2017-2020 and the preparation of a new plan following its expiry; (ii) institutional coordination at the federal level, including the establishment and activities of the SETT, and its rules of procedure; and (iii) the work of the cantonal round-tables and the activities of the competent authorities in the cantons where a round-table has not yet been established.

Article 25 of the Convention, and Article 1(3) of the Protocol . (i) Definition and criminalization of forced labour. Labour exploitation. The Committee noted previously that FEDPOL had mandated the Swiss Forum for Migration and Population Studies of the University of Neuchâtel to conduct a study on labour exploitation. The report, which was published on 6 April 2016, confirmed the existence of the exploitation of workers in such sectors as domestic work, hotels, restaurants, construction and agriculture.

The Committee notes that section 182 of the Penal Code criminalizes trafficking in persons, including for labour exploitation, which is punishable by a sentence of imprisonment or a fine. Moreover, section 264(a) of the Penal Code establishes crimes against humanity, including reduction to slavery, which is defined as “disposing of a person by exercising over that person a right of ownership, particularly in the context of trafficking in human beings, sexual exploitation or forced labour”. Crimes against humanity carry a sentence of imprisonment of at least five years. The Government indicates that criminal prosecutions for trafficking in human beings (section 182 of the Penal Code), in cases involving the exploitation of forced labour, sometimes result in convictions under other criminal provisions, such as fraud (section 146), usury (section 157), threats (section 180), constraint (section 181) or abduction (section 183). This occurs in particular when all the elements constituting trafficking in persons are not present or have not been proved.

The Committee notes the absence of a clear definition of “forced labour” and “labour exploitation” in Swiss legislation, and that labour exploitation is only criminalized in the context of trafficking in persons, despite the judicial practice of imposing penalties under other criminal provisions. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that the legislation on action to combat forced labour is in conformity with the Convention, particularly in relation to labour exploitation that is not related to trafficking in persons. The Committee also requests the Government to continue providing information on the application of the criminal provisions under which penalties are imposed in cases of labour exploitation.

(ii) Imposition of penalties. The Committee noted previously that, under the terms of section 182 of the Penal Code respecting trafficking in humans, 46 and 58 violations were recorded in 2014 and 2015, respectively.

The Committee notes the Government’s indication that in 2016 six final judgments were issued under section 182 of the Penal Code (one suspended fine, one prison sentence that was not suspended, and four suspended prison sentences). In 2017 and 2018, two judgments became final each year (one suspended fine, one prison sentence that was not suspended, and two suspended prison sentences). The Committee also notes that the statistical data currently available on the application of section 182 of the Penal Code is not disaggregated by type of exploitation. The Government indicates that FEDPOL has launched the process of changing the recording and presentation of police crime statistics so as to be able to distinguish between the different forms of exploitation in cases of violations of section 182 of the Penal Code, and that it is planned to introduce the change from 2020. The Committee requests the Government to continue providing information on the application of the relevant provisions of the Penal Code, and particularly section 182, drawing a distinction between the various forms of exploitation.

(iii) Strengthening the capacities of the actors in the criminal prosecution system. The Committee notes the Government’s indication that, in 2017 and 2018, specialized training for the actors in the criminal prosecution system was organized and held in the Swiss Police Institute. Moreover, FEDPOL is currently finalizing the design of training and awareness-raising for all professional groups that may be confronted with trafficking. The objective is the provision of systematic training for the respective professional services and groups in Switzerland. The Government adds that, within the framework of the National Plan of Action, it intends to prepare a practical guide to facilitate the identification of situations of trafficking for labour exploitation, and that certain specific issues still have to be examined. The Committee requests the Government to provide information on the training on trafficking in persons available for actors in the criminal justice system and for professional services and groups which may be confronted with trafficking. It also requests it to provide information on the preparation of the practical guide to facilitate the identification of situations of trafficking for labour exploitation.

Article 2 of the Protocol. Prevention measures, clauses (e) and (f). Supporting due diligence in the public and private sectors. Action to address the root causes. The Committee notes the information provided by the Government on the National Plan of Action for the implementation of the United Nations Guiding Principles on Business and Human Rights (2016–2020). In the context of the implementation of this National Plan of Action, the Secretariat of State for the Economy (SECO) and the Federal Department of Foreign Affairs published in May 2019 a brochure intended for Swiss micro, small and medium-sized enterprises with a view to providing them with practical insight into the opportunities and challenges of responsible enterprise management and providing international and national guidance on the inclusion of human rights issues in enterprise management. The Committee requests the Government to indicate whether a new national plan of action for the implementation of the United Nations Guiding Principles on Business and Human Rights is planned following the expiry of the current Plan of Action in 2020.

Article 3 of the Protocol . (i) Identification of victims. The Committee notes the Government’s indication that measures have been taken to update the checklist for the identification of victims of trafficking in persons by adapting it to current issues relating to trafficking in persons. The checklist contains specific indicators related to sexual exploitation and labour exploitation. Moreover, a guide on the identification of victims for the use of the police is being prepared to ensure harmonization at the national level. FEDPOL has also mandated a university institute to assess the situation of trafficking in persons in all the cantons and to evaluate the action taken to combat this crime at the cantonal level. The Government emphasizes that action to combat trafficking is organized at the cantonal level, and that there are significant differences between cantonal policies on the identification of victims of trafficking. According to the information contained in the GRETA report, the number of persons identified as victims of trafficking by the police was 35 in 2014, 47 in 2015, 90 in 2016, 108 in 2017 and 64 in 2018 (paragraph 12). However, eight cantons still do not have roundtables to serve as a mechanism for the guidance of victims (paragraph 118). The Committee requests the Government to provide information on: (i) the preparation of the guide for the police on the identification of victims to ensure harmonization at the national level; (ii) the findings of the study commissioned by FEDPOL to analyse the situation of trafficking in persons in all the cantons and assess the action taken at the cantonal level to combat this crime; and (iii) statistical data on the victims of trafficking for the purposes of sexual exploitation and labour exploitation who have been identified.

(ii) Protection of victims. General system. The Committee notes that the legal basis for the provision of assistance to victims of violations, including victims of trafficking, is contained in the Federal Act on assistance to victims of violations (LAVI). Under section 2 of the LAVI, assistance to victims includes advice and immediate help, with longer-term assistance being provided by consultation centres, and the contribution to the cost of longer-term assistance provided by a third party. Section 9 provides that the cantons shall establish consultation centres providing services adapted to the needs of the various categories of victims. Moreover, in addition to immediate help, if necessary, assistance must be provided until the state of health of the victim is stable and the other consequences of the violation have disappeared or been resolved (section 13(2)). It must include medical, psychological, social, material and legal assistance and, where necessary, emergency accommodation (section 14(1)).

The Committee further notes that Action No. 18 of the National Plan of Action envisages the preparation of a reference document entitled “National Programme for the Protection of Victims”, with a view to promoting the uniform application of the legal tools that exist in the cantons. The Government adds that, within the framework of the National Plan of Action, the Government envisages the review of statistics on the assistance provided to victims of trafficking who have been provided with specialized assistance by the listed non-governmental organizations. GRETA also observes that the capacity of specialized shelters to accommodate victims of trafficking in Switzerland has increased over the reference period (paragraph 149). The Committee requests the Government to provide information on: (i) the number of victims received by shelters specializing in support for victims of trafficking, and the nature of the assistance provided to them; and (ii) the progress made in reviewing statistics on the assistance provided to victims of trafficking who have received specialized assistance from non-governmental organizations.

Period of recovery and reflection. The Committee notes that section 35(1) of the Ordinance of the Federal Council on the admission, residence and exercise of an income-generating activity (OASA) provides for a period of recovery and reflection of at least 30 days to allow victims of trafficking to recover and decide upon their cooperation with the authorities. According to the information contained in the GRETA report, in practice, the period of recovery and reflection is frequently granted for a period of at least 90 days, instead of the minimum period of 30 days envisaged by the law (section 179). However, under the terms of section 35(3) of the OASA, a period of recovery and reflection can be terminated earlier if the potential victim indicates that she or he does not wish to cooperate with the authorities (clause (a)), or if the person concerned has deliberately renewed contact with those presumed to have committed the offence (clause (b)). The Committee therefore requests the Government to provide information on the effect given in practice to these provisions under which the period of recovery and reflection can be brought to an end earlier, including the number of cases in which these provisions have been applied and the circumstances justifying their application.

Identification and protection of victims of trafficking among asylum-seekers. The Committee notes the Government’s indications that, under the responsibility of the Secretariat of State for Migration (SEM), a working group on asylum and trafficking established under Action No. 19 of the National Plan of Action has been given responsibility for preparing proposals to ensure that victims of trafficking are identified and that they receive assistance within the framework of the asylum procedures. The working group is called upon to examine the following issues: (i) regulation of the residence of victims; (ii) optimization of the current procedure for the identification of victims, assistance to victims, information to asylum-seekers and cooperation with stakeholders; and (iii) the support provided to victims of trafficking within the framework of the Dublin procedure. The working group has prepared general recommendations on the issues referred to above and is currently working on proposals for specific solutions with a view to their implementation. According to the information contained in the GRETA report, within the framework of the asylum procedure as revised in March 2019, victims of trafficking have a greater chance of being identified earlier as a result of the provision of free legal assistance from the beginning of the asylum procedure. The new procedure also offers an opportunity to establish new centralized processes and to train all the actors concerned, which could facilitate proactive early identification (paragraph 133). The statistics provided by the Secretariat of State for Migration indicate that 84 presumed victims of trafficking were identified among asylum-seekers in 2014, 32 in 2015, 73 in 2016 and 100 in 2017. In the context of the Dublin procedure, 19 presumed victims were identified in 2014, 17 in 2015, 34 in 2016 and 41 in 2017 (paragraph 128). The Committee requests the Government to continue providing information on the activities of the working group on asylum and trafficking under the responsibility of the Secretariat of State for Migration, and on the results achieved, to ensure that victims of trafficking are identified and receive assistance within the framework of the asylum procedure. The Committee also requests the Government to provide statistical data on the number of victims of trafficking identified during the asylum procedure.

Article 4 of the Protocol. Paragraph 1. Access to remedies and compensation. The Committee notes that the Code of Penal Procedure provides that persons who have suffered, by reason of a violation, direct physical, psychological or sexual harm may seek compensation from the perpetrators of the crime through the judicial system (sections 116, 122 et seq. (civil action)). Section 73 of the Penal Code determines the legal framework for the confiscation of the assets of those who have committed crimes with a view to the compensation of victims. It is also possible to confiscate assets that are not the product of criminal acts to cover the costs of judicial action, penalties, fines and compensation (sections 263(1)(b) and 268(1)(a) and (b) of the Code of Penal Procedure). However, the Committee notes that, in its 2019 report, GRETA indicates that it is difficult to prove material prejudice, for example by quantifying the precise amount of unpaid wages. The report also indicates that the compensation awarded to victims by the courts is generally too low and that its payment by perpetrators is not enforced (paragraph 198).

The Committee further notes that, under the terms of the relevant provisions of the LAVI, the victims of crime are entitled to compensation (section 2(d)) from the State for financial and moral damages if the perpetrator or another debtor does not pay compensation or pays insufficient compensation (section 4). Chapter 3 of the LAVI governs the right of victims to compensation and to moral damages from the canton and the method of calculation. The GRETA has been informed that compensation was paid by the State to 14 victims of trafficking in 2014, 29 in 2015, 23 in 2016 and 19 in 2017 (paragraph 204). The Committee requests the Government to provide information on: (i) the cases in which courts have upheld claims for compensation, specifying the amount awarded and the amount actually received by the victims; and (ii) cases in which victims have been awarded the right to compensation by the State under the terms of Chapter 3 of the LAVI.

Paragraph 2. Non-prosecution of victims for acts committed under constraint. The Committee notes the absence of specific provisions in Swiss law on the non-prosecution of victims. However, in accordance with section 19 of the Penal Code, a person who commits a criminal offence can only be convicted if that person had the capacity to determine or appreciate the unlawful nature of the act committed. Moreover, sections 52 to 55 of the Penal Code set out the conditions under which persons may be exempted from penalties or be subject to suspended criminal prosecution.

The Committee also notes that, according to the information contained in the GRETA report (paragraph 235), there are cases in which victims are fined or prosecuted for violations of the legislation on foreign nationals, labour legislation or the regulations on prostitution. This situation has a deterrent effect on victims of trafficking, who are less likely to report their cases to the authorities for fear of being prosecuted or expelled from Switzerland. The Committee also notes Actions Nos 16 (training of the criminal prosecution authorities on trafficking in human beings) and 17 (networking between public prosecutors) of the National Plan of Action 2017–2020 intended to improve the identification of victims of trafficking and prevent penalties being imposed on them under the legislation on foreign nationals. The Government indicates that, in 2017 and 2018, specialized training for actors in the criminal prosecution system included components on exemption from penalties for those who are forced to commit criminal acts due to their situation of exploitation. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that victims are not prosecuted for acts committed under constraint, including within the context of Actions Nos 16 and 17 of the National Plan of Action 2017-2020.

Article 5 of the Protocol. International cooperation. The Committee notes the Government’s indication that Switzerland has implemented programmes and projects to support the countries of origin of victims in their action to combat trafficking in persons, namely Bulgaria, Hungary and Romania, with a view to improving collaboration between the criminal prosecution authorities in relation to trafficking in persons and between the services responsible for the protection of victims. These projects came to an end in 2018. The Committee requests the Government to indicate whether it envisages continuing the projects with a view to supporting the countries of origin of victims, and to continue providing information on international cooperation programmes.

Article 6 of the Protocol. Consultation with organizations of employers and workers. The Committee notes that, according to the report entitled “Exploitation of labour in the context of the trafficking of human beings: Situation in Switzerland”, published in 2016 by the Swiss Forum and commissioned by FEDPOL, the labour authorities and the social partners are not sufficiently involved in and aware of the prevention and detection of trafficking for labour exploitation, including in situations in which they are in direct contact with the active population (page 77). GRETA also notes that trade unions are not represented at the Geneva roundtable (paragraph 282), and that the institutional changes relating to the SCOTT were implemented without in-depth consultation with stakeholders (paragraph 18). The Committee requests the Government to indicate the measures adopted or envisaged to ensure effective consultation with employers’ and workers’ organizations concerning the measures adopted to combat forced labour.

Article 2(b) of the Convention. Obligation to agree to serve as a guardian (curateur). In its previous comments, the Committee noted that the obligation for citizens to agree to serve as guardians (curateurs), as established in section 400 of the Civil Code, is contrary to the Convention and that the Canton of Vaud is the only one in which this provision is applied strictly. The Government indicates that, at the federal level, the preliminary draft of the Federal Council in response to Parliamentary initiative No. 12.413 to amend section 400 of the Civil Code has been submitted for consultation. Moreover, in July 2014, the government of Vaud decided to bring an end to compulsory guardianship orders. The Committee also noted previously that the Government was planning to introduce the recruitment of private and voluntary guardians in 2017 through the implementation of a communication campaign. The Committee therefore requested the Government to provide information on the introduction of the recruitment system for private and voluntary guardians since 2017, and the number of persons covered by guardians.

The Committee takes due note that, according to the information provided by the Government, section 400 of the Civil Code has been amended and provides that a person can only be nominated as a guardian with their agreement. In May 2017, the State Council of Vaud decided to bring an end to compulsory guardianships from 1 January 2018. As of 31 December 2018, a total of 529 guardians, all volunteers and trained, had been appointed by justices of the peace and were entrusted with mandates. Other candidates are awaiting nomination and have not yet completed the recruitment process.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted the adoption of the National Plan of Action against Trafficking in Human Beings (2012–14), which includes four strategic objectives, namely: prevention; reinforcing the prosecution of perpetrators; improving victim identification and protection; and international cooperation. The Committee noted the awareness-raising activities conducted under the auspices of the Coordination Unit against Trafficking in Persons and Smuggling of Migrants (SCOTT) and the action taken by the “trafficking in human beings and smuggling of migrants” commissariat, which continues to coordinate and support judicial procedures at the national and international levels. The Committee further noted that Switzerland is still mainly affected by trafficking in persons for sexual exploitation and that there are few prosecutions for cases of trafficking in persons for labour exploitation. The Committee requested the Government to: continue providing information on the activities carried out to implement the National Plan of Action against Trafficking in Human Beings to improve the identification of victims and the conviction of those responsible to really effective penalties; indicate the specific measures taken to improve the detection and handling of cases of trafficking in persons for labour exploitation; and evaluate the impact of the measures taken in the context of the National Plan of Action.

The Committee notes in the Government’s report that, of the 23 measures provided for in the National Plan of Action, 17 measures have been implemented, one has been redefined (the awareness-raising campaign to combat human trafficking), three are being carried out (on criminal proceedings, on asylum and the protection of victims and on unaccompanied minors who are victims of human trafficking) and two have been pushed back to the next national plan of action (on labour exploitation and on the national programme for victim protection). The Committee notes that SCOTT is preparing a new national plan of action that should be adopted by the end of 2016. The Committee notes that the Federal Office of Police (FEDPOL) has mandated the Swiss Forum for Migration and Population Studies of the University of Neuchâtel to conduct a scoping study on the subject, the three main objectives of which are to characterize the phenomenon in the Swiss context, identify the economic sectors that represent a risk and construct a profile of perpetrators and victims. This study, made public on 6 April 2016, confirms the existence of the exploitation of workers in sectors such as domestic work, hotels, catering, construction and agriculture. The Committee notes the statistics on the rulings issued, which were included in the Government’s report, and that in 2014 and 2015, 46 and 58 violations were recorded respectively under section 182 of the Penal Code.

The Committee also notes the report published on 14 October 2015 by the Group of Experts on Action against Trafficking in Human Beings (GRETA (2015)18) concerning the implementation by Switzerland of the Council of Europe Convention on Action against Trafficking in Human Beings. While welcoming the measures taken by the Swiss authorities to combat trafficking, through the adoption of legislative provisions, the creation of a coordinating body at the national level involving non-governmental organizations (NGOs), and international cooperation with the countries of origin, the Committee notes that GRETA emphasizes the need to improve the identification of victims and the assistance measures provided. The Committee also notes that GRETA encourages the Government to step up the fight against trafficking for the purpose of forced labour and the proactive detection of potential victims, notably by strengthening cooperation between the labour inspectorate and trade unions to combat trafficking. The Committee welcomes the measures taken by the Government and encourages it to continue its efforts to ensure that all victims of trafficking for both sexual exploitation and labour are protected and able to have access to justice, particularly by strengthening cooperation between the labour inspectorate and trade unions. The Committee requests the Government to continue providing information on the measures of the National Plan of Action against Trafficking in Human Beings (2012–14) which have not been implemented yet. Please also provide information on the implementation of the new national plan of action, the adoption of which is envisaged by the end of 2016. Lastly, the Committee requests the Government to continue providing statistical data on the number of victims identified, prosecutions, convictions and the penalties imposed.

Article 2(b). Obligation to agree to serve as a guardian (curateur). In its previous comments, the Committee noted the observations of the Swiss Federation of Trade Unions (USS), indicating that the obligation for citizens to agree to serve as guardians (curateurs), established in section 400 of the Civil Code, is contrary to the Convention. According to the USS, Vaud is the only canton to strictly enforce this provision. The Committee noted the government’s indication that the legal affairs’ committees of both chambers of parliament have decided to give effect to parliamentary initiative No. 12.413 aimed at amending section 400 of the Civil Code. The Committee requested the Government to provide information on any action taken as a result of parliamentary initiative No. 12.413 that would make guardianship voluntary and to supply information on the impact of the decision of the Council of State of the Canton de Vaud on the manner in which guardians are appointed.

The Committee notes with interest the Government’s indication that, at the cantonal level, further to parliamentary initiative No. 12.413, the government of the Canton de Vaud decided in July 2014 to bring an end to compulsory appointments as guardians. Furthermore in July 2014 the Council of State launched a draft reform of guardianship in Vaud in anticipation of the end of compulsory appointments. It also notes that, at the federal level, the Federal Council bill drafted in response to the parliamentary initiative has been opened for consultation, and that the parliamentary committee should be informed of the results of this consultation by the end of 2016. The Committee notes that working groups have been established to develop specific proposals in 2016, such as strengthening assistance for private guardians, the recruitment of voluntary guardians and the promotion of advance directives (enabling citizens to appoint a trusted person prior to any loss of decision-making capacity). The Committee notes that the Government envisages implementing the recruitment of private and voluntary guardians in 2017 through a communication campaign, scheduled for the second half of 2017. The Committee also notes the Government’s indication that, since the Council of State decided in July 2014 to gradually phase out the legal obligation to accept guardianship appointments, guardians are no longer appointed against their will. The Committee notes in this context that the Federal Court has ruled on two decisions for the appointment of guardians in the Canton de Vaud, and in both cases exempted the complainants from their obligation to accept the appointments. The Committee welcomes the reform of guardianship in the Canton de Vaud and requests the Government to provide information in its next report on the implementation of the reform bringing an end to the legal obligation to accept appointments as guardians. It also requests the Government to provide information on the recruitment of private and voluntary guardians as from 2017, including on the number of guardians appointed.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments the Committee noted the measures taken by the Government to strengthen its legal and institutional framework for combating trafficking in persons, particularly the coordination and awareness-raising activities carried out by the Coordination Unit against the Trafficking of Persons and the Smuggling of Migrants (SCOTT).

The Committee notes that the information supplied by the Government in its report indicates that it remains strongly committed to the fight against trafficking in persons, as borne out by the adoption of the “National Plan of Action against Human Trafficking (2012–14)”. The plan defines 23 measures within four strategic objectives, namely: prevention; stepping up the prosecution of perpetrators; improving victim identification and protection; and international cooperation. Among the activities carried out in implementing these four strategic objectives, the Committee notes the awareness-raising activities undertaken under the auspices of SCOTT, including those undertaken in various cantons during the week of action against human trafficking (October 2013) and the preparations for the 2016 national awareness-raising campaign; the organization of training days for members of the criminal prosecution authorities and staff of the Migration Office; and the possibility for the Confederation to grant financial aid to private or public law bodies to enable them to implement measures for the prevention of trafficking (following the entry into force of the Ordinance against human trafficking). Moreover, the “Trafficking of human beings and smuggling of migrants” commissariat continues to coordinate and support judicial procedures at national and international level (in particular with Romania, Hungary and Bulgaria), which has resulted in an increase in requests for information exchange with these countries. The Committee notes that, according to the latest report from the Federal Police Office (FEDPOL) (May 2014), Switzerland is still mainly affected by the trafficking of persons for sexual exploitation. The last ten years have seen a slight increase in the number of convictions, with heavy prison sentences handed down in 2013. The report also underlines the large number of trafficking cases which are not recorded. These cases do not lead to prosecution because the offence is not identified or because of the reluctance of victims or witnesses to testify. Proceedings are even fewer for cases involving trafficking in persons for the exploitation of labour, which, according to police information, probably exist in the sectors of construction, agriculture and domestic work.

The Committee requests the Government to continue to supply information on the activities implementing the National Plan of Action against Human Trafficking in order to ensure better identification and protection of victims and also genuinely effective penalties for perpetrators, in accordance with Article 25 of the Convention. The Government is also requested to indicate the specific measures taken to improve detection and handling of cases of trafficking in persons for labour exploitation. The Committee further requests the Government to indicate whether it is planned to evaluate the impact of the measures taken in the context of the National Plan of Action and, if so, to provide information on this evaluation and on any measures taken or contemplated as a result.

Article 2(b). Obligation to serve as guardian. The Committee previously noted the observations of the Swiss Federation of Trade Unions (USS) concerning the obligation on citizens to serve as guardians. According to the USS, this obligation, which is laid down in section 400 of the Civil Code, is contrary to the Convention, and the Civil Code should be amended so that persons may be appointed as guardians only if they so agree. The USS emphasized that Vaud is the only canton to apply this provision strictly and require citizens to perform these duties. The Committee recalled the criteria that normal civic obligations must meet so as not to be considered as forced labour and asked the Government to provide information on the manner in which the obligation to serve as a guardian is applied in practice.

In its report, the Government indicates that the legal affairs committees of both Chambers of Parliament have decided to follow up on parliamentary initiative 12.413 aimed at amending section 400 of the Civil Code so that a person can only be appointed as a guardian with his or her consent. The Government points out that, as a result, it is likely that the power to oblige citizens to serve as guardians will be annulled in federal law in the near future. The Committee duly notes this information. It also observes that, in the context of the federal consultations conducted further to the adoption of the parliamentary initiative, the Council of State of the canton of Vaud indicated that it intended to modify the model in force in the canton, referring to “the end of the system imposing an obligation on private individuals to accept a guardianship” (document of 7 July 2014). The Committee requests the Government to provide information on any action taken as follow-up to parliamentary initiative 12.413 that would make guardianship voluntary. In the meantime the Committee requests the Government to supply information on the impact of the decision of the Council of State of the canton of Vaud on the manner in which guardians are appointed, indicating whether some of them continue to be appointed against their will.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking of persons. The Committee notes the information supplied by the Government on the coordination and awareness-raising activities carried out by the Coordination Unit against the trafficking of persons and the smuggling of migrants (SCOTT). It notes in particular that a national action plan has been drafted to combat human trafficking which encompasses the strategic priorities of SCOTT; that more cantons have developed mechanisms for cooperation between the various partners involved in the fight against trafficking; that training activities have been developed for the various competent authorities, particularly the prosecution authorities; that SCOTT participates in meetings with the competent authorities of countries with nationals who are victims of trafficking, such as Hungary or Romania, in order to step up bilateral cooperation between the departments concerned. The Government also provides statistics of the number of attestations delivered in 2009 and 2010 allowing victims or witnesses of trafficking to reside in the canton for the duration of a cooling off period of at least 30 days or in order to assist the prosecuting authorities (sections 35 and 36 of the Ordinance on admission, residence and gainful employment (OASA)). Lastly, with regard to the information on convictions under section 182 of the Penal Code making trafficking in of persons a criminal offence, the Committee notes that according to the Government, several judgments handed down in 2010 indicate a tendency towards harsher penalties. The Government refers in particular to a decision of February 2010 by the Federal Supreme Court which overruled a sentence passed by the Zurich Cantonal Supreme Court on the grounds that in the circumstances a custodial sentence of three-and-a-half years was too light.

The Committee further notes the adoption on 23 December 2011 of the Federal Act on the Extrajudicial Protection of Witnesses (Ltém) which seeks to protect persons who are under threat because they are cooperating in criminal proceedings. In particular, the Act provides for the establishment of a witness protection service that reports to the Confederation, and defines the content of protection programmes. The Committee also notes the annual report of the Federal Police Office (FEDPOL) published in June 2012, according to which Switzerland is concerned above all by trafficking of women for the purposes of sexual exploitation and mainly as a country of destination. The number of presumed instances of trafficking is rising in parallel with the number of prostitutes, a trend that became more pronounced in 2011. The victims come for the most part from Eastern Europe (Romania, Hungary, Bulgaria), but also from Brazil, Thailand and West Africa. The report emphasizes that the real extent of the problem in Switzerland is impossible to estimate because this type of exploitation is carried on underground and denunciations are rare because most victims are subjected to severe duress. The trafficking of persons remains an offence that promises enormous gains with relatively little risk of prosecution. In this connection the report lists the actions conducted by the “Trafficking of humans and smuggling of migrants” commissariat, which reports to FEDPOL, to assist prosecuting authorities in Switzerland and other countries in preventing and combating trafficking.

The Committee notes all the measures taken by the Government to strengthen its legal and institutional framework for combating trafficking in persons. It requests the Government to indicate whether the national plan of action to combat trafficking of persons, based on the strategic priorities of SCOTT, has been adopted and, if so, to provide a copy. Please also continue to provide information on the work done by SCOTT and the “Trafficking of human beings and smuggling of migrants” commissariat to improve the identification of victims and step up their protection, in particular following the entry into force of the Federal Act on the Extrajudicial Protection of Witnesses (Ltém), and also to ensure that trafficking of persons offences are more effectively prosecuted. Please also send information on court decisions handed down under section 182 of the Penal Code so that the Committee may satisfy itself that the penalties for trafficking of persons are really effective and strictly applied, in accordance with Article 25 of the Convention.

Article 2(b). Obligation to serve as guardian. The Committee notes the observations of the Swiss Federation of Trade Unions (USS) forwarded by the Government on 30 September 2011. In its observations the USS refers to section 382 of the Civil Code, under which citizens may be required to serve as guardians. It points out that Vaud is the only canton to apply this provision strictly and to require citizens to perform guardianship duties in exchange for a mere CHF700 a year. The USS indicates that although under the new Civil Code amendments to the cantonal law will make guardianship duties more acceptable, the cantonal authority of Vaud intends to maintain this obligation. The USS demands an end to a practice which is contrary to the Convention and asks that the Civil Code be amended so that persons may be appointed as guardians only if they so agree.

The Committee notes that the Government has sent no information in response to these observations. It notes that the provisions on guardianship in the Civil Code to which the USS refers were amended by the Act of 19 December 2008 establishing a new guardianship regime and that it will take effect from 1 January 2013. The Committee observes that according to section 400(1) of the new Civil Code, a person appointed as a guardian by the adult protection authority is required, subject to good cause, to assume guardianship duties.

The Committee points out that in order to be exempted from the definition of forced labour laid down in the Convention, normal civic obligations have to meet certain criteria: the work or service must be for public purposes, be imposed on all citizens equally and be subject to certain reasonable restrictions of proportionality. The Committee would be grateful if the Government would explain the manner in which guardians are selected by the adult protection authority and provide information on how the duties comprising the average workload of a guardian are evaluated. Please also indicate the legal consequences of a refusal to perform guardianship duties assigned by the competent authority. The Government is asked to provide statistical information on the number of refusals and any penalties imposed in the canton of Vaud.

Article 2(2)(c). Work of general interest as a penalty. Prisoners working in establishments managed by private entities. With reference to its previous comments, the Committee takes note of the information provided by the Government on the manner in which certain cantons apply work of general interest as a penalty and ensure that the entities for which the work is performed are non-profit-making. It also notes the information on the voluntary external work of prisoners that may be performed in certain cantons for the benefit of establishments managed by private entities.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

1. Article 2, paragraphs 1 and 2, subparagraph (c), of the Convention. Work of general interest. Prisoners working in establishments managed by private entities. In its previous comments, the Committee noted that, under sections 37–39 of the Penal Code, the courts may order, with the agreement of the offender, work of general interest instead of a sentence of imprisonment of under six months or a financial penalty of a maximum of 180 fine-days. Work of general interest is unpaid and is carried out for the benefit of social institutions, works of public utility or persons in need. The Committee requested the Government to provide information on the criteria used by the authorities to determine the type of associations or institutions for the benefit of which work of general interest may be performed, so that the Committee could ascertain that the work performed was indeed of general interest and that the entities for which the work was carried out were not exclusively profit making. The Committee also requested the Government to provide the list of establishments to which convicted persons may be assigned to perform work of general interest.

The Committee also noted that, under section 81 of the Penal Code, detainees, who are under the obligation to work, may only be engaged by a private employer with their consent. In this regard, the Committee noted that section 379 of the Penal Code empowers the cantons to entrust to establishments managed by private entities the execution of sentences in the form of semi-detention or external work. The Committee requested the Government to indicate in its future reports the cases in which the execution of sentences in the form of semi-detention or external work had been entrusted to private entities and, in such cases, to provide information on the conditions and arrangements for the performance of work by detainees for the benefit of these private entities.

The Committee notes that the report provided by the Government in 2008 contains information originating from 16 cantons, while ten cantonal authorities have not replied. Among the cantons which have provided information, some have not provided all the information requested, in particular the list of establishments to which convicted persons may be assigned to perform work of general interest, on the grounds of data protection, cantonal sovereignty and the independence of the judicial system. Some cantons (Aargau, Lucerne and Solothurn) referred to the Federal Council’s Message of 21 September 1998 concerning the revised general part of the Penal Code, according to which the Convention is not violated in so far as the persons concerned consent to performing the work directly for private entities and/or under their supervision (Chapter 285 of the Message). These cantons considered that, for that reason, there were no grounds for thinking that the provisions prohibiting forced labour had been violated or cause for informing the Committee. Furthermore, these cantons also refused to provide the list of enterprises to which convicted persons may be assigned to perform work of general interest. The Committee notes the Government’s indication that it does not have the legal means to force cantonal authorities to provide all the information requested.

In view of the reference made by certain cantonal authorities to the Federal Council’s Message of 21 September 1998, under which the Convention is not violated provided that persons sentenced to perform work of general interest consent to performing that work directly for private entities and/or under their supervision, the Committee emphasizes that the supervision of the application of international labour Conventions is a matter for the ILO’s supervisory bodies alone, which are not bound by any interpretation of those Conventions by state institutions. In this regard, the Government is responsible for ensuring that the necessary information is sent to the Office, if necessary by requesting it from the various territorial authorities concerned, so that the Committee can duly supervise the application of international labour Conventions. With regard in particular to the possibility of entrusting to entities other than public associations the execution of sentences of work of general interest, the Committee recalls that the consent of the convicted person to work for a private entity or under its supervision is not sufficient to ensure observance of the Convention. The Committee refers in this regard to paragraphs 126 and 128 of its 2007 General Survey on the eradication of forced labour, in which it clearly indicated that it sought assurance with regard to two aspects: first, that the person sentenced formally consents to doing the work of general interest; and secondly, that the circumstances in which the work is performed are adequately structured and monitored to ensure that the work done really is in the general interest and that the entities for which the work is performed are non-profit making.

Nature of entities benefiting from work of general interest

With regard to the criteria used by the authorities to determine the type of associations or institutions for the benefit of which work of general interest may be performed, the Committee notes that some cantons (Appenzell-Outer Rhoden and Thurgau) indicate that checks are carried out to verify that the institutions concerned are public interest establishments and that, in the case of private bodies, the condition which has to be met is that they pursue a public- interest mission. Another canton (Appenzell-Inner Rhoden) indicates that the institutions selected are exclusively institutions owned by the canton or commune. Other cantons (Glarus, Schaffhausen, St Gallen and Thurgau) indicate that the institutions concerned must be exempt from tax on account of the public nature or public utility of the objectives they pursue. In Graubünden, work of general interest may be performed in community institutions or in private organizations serving the interests of the poor or the community as a whole, as well as in institutions which aim to protect nature or the environment, for which the main criterion is the general interest. Others (Neuchâtel and Ticino) indicate that work of general interest concerns work which would not be performed if it had to be remunerated and which is mainly performed for the benefit of associations, foundations or other institutions which are mainly of a social or humanitarian nature. An examination of the statutes of these bodies must prove that they are entirely non-profit-making. In the canton of Valais, the work performed by persons sentenced to work of general interest is work not requiring specific vocational skills and the performance of which is optional or complementary. The canton of Zurich indicates that, in addition to work of general interest carried out in institutions such as retirement and nursing homes, hospitals, residences, hostels and boarding schools, community centres, beaches, sports facilities, local workshops and non-profit-making organizations working to protect nature and the environment or engaged in charity activities serving the community as a whole, the Zurich Foundation for Prisoners and Released Persons (ZSGE) manages a workshop in which convicted persons with limited abilities can perform work of general interest in a protected environment. Other cantons (Appenzell-Outer Rhoden, Appenzell-Inner Rhoden, Aargau, Berne, Graubünden, Lucerne, Solothurn and Zurich) have provided texts (ordinances, circulars and directives) governing work of general interest.

The Committee notes that certain cantons (Appenzell-Outer Rhoden Appenzell-Inner Rhoden, Berne, Glarus, Graubünden, Obwalden, Schaffhausen, Solothurn, St Gallen, Ticino and Valais) have provided a list of establishments to which convicted persons may be assigned to perform work of general interest. One canton (Thurgau) indicates that it has reviewed the list of institutions to which convicted persons may be assigned to perform work of general interest following the request made by the authorities of the Confederation, which has resulted in the removal of a retirement home managed by private entities.

Prisoners working in establishments managed by private entities

With regard to the possibility of cantons entrusting to establishments managed by private entities the execution of sentences in the form of semi‑detention or external work, the Committee notes that a number of cantons (Neuchâtel, Obwalden, Ticino, Valais) indicate that this situation has not arisen in practice. Another (Aargau) indicates that, in the case of external work, prisoners sign a private employment contract and receive a wage that corresponds to free market conditions, as well as the usual social benefits, and contribute, by means of the payment of a moderate sum, to the cost of the accommodation and care provided within the prison establishment. The cantons in the east of Switzerland (Appenzell-Outer Rhoden, Appenzell-Inner Rhoden, Glarus, Graubünden, Schaffhausen, St Gallen, Thurgau and Zurich) indicate that, under section 2(2) of the Concordat concluded between the cantons in the east of Switzerland on the execution of sentences and measures of 29 October 2004, the Eastern Switzerland Committee on the Enforcement of Sentences and Measures may authorize establishments managed by private entities to engage persons sentenced to semi-detention and external work. In accordance with Chapter 5.1 of the Directive of 7 April 2006 relating to the arrangements for the performance of external work, external residence and the employment of persons assigned to a private employer, the Eastern Switzerland Committee on the Enforcement of Sentences and Measures approves the request from an establishment for authorization to engage persons sentenced to external work where the establishment has a clear organization, a framework document on the serving of sentences, as well as internal regulations, guarantees proper and consistent supervision and management of the persons entrusted to it and operates a continuous 24-hour service. Based on these criteria, three private establishments, mentioned in the report, have been recognized as being suitable to engage persons sentenced to external work. Furthermore, as of the date of the report, no establishment managed by a private entity had been recognized as being suitable to engage persons sentenced to semi-detention on the territory covered by the eastern Switzerland Concordat. In the canton of Glarus, the private institution Teen Challenge Swiss may, if necessary, be called upon for the execution of sentences and measures. However, to date, no request to that end has been made. Some of the cantons which signed the Concordat between central and north-west Switzerland and which provided information (Aargau, Lucerne, Solothurn) indicate that, where sentences in the form of semi-detention and external work are not served in cantonal prisons (semi-detention) or in establishments covered by the Concordat (external work), they shall be served in public or private establishments recognized under the Concordat on the execution of sentences in Switzerland concluded between the north-west and central cantons of Switzerland (Chapter 4 of Directive No. 12 of 22 April 2005 on the execution of sentences of semi-detention and Chapter 3.3 of Directive No. 10 of 3 November 2006 on external work, published on the web site www.prison.ch/konkordat). With regard to the Canton of Aargau, sentences of semi-detention are served exclusively in cantonal prisons, while sentences of external work are served with a public or private employer. In both cases, the labour relationship is based on a private employment contract and the convicted person receives a wage corresponding to free market conditions, as well as the usual social benefits. With regard to the canton of Berne, the information provided indicates that sentences of semi‑detention are served exclusively in prison and, with regard to external work, sentences are served with institutions managed by private entities according to the terms of individual employment contracts. With regard to the canton of Lucerne, sentences of semi-detention are served in a cantonal prison, as well as in a private institution authorized by the Federal Department of Justice and Police on 20 October 2000. The canton of Lucerne and the private establishment concerned concluded an agreement on 10 April 2001 establishing the arrangements for the execution of short-term prison sentences in the form of semi-detention. Work under the semi-detention and external work regimes is carried out on the basis of a private employment contract and the convicted person receives a wage corresponding to free market conditions, as well as the usual social benefits. With regard to the canton of Solothurn, sentences of semi-detention are generally served with an institution recognized under the Concordat, but it is not specified whether this is a public or private institution. Under both the semi-detention regime and the external work regime, the labour relationship is based on a private employment contract and the convicted person is paid a wage corresponding to free market conditions, as well as the usual social benefits.

The Committee notes all this information with interest and thanks the Government and those cantonal authorities which have provided the information requested. With regard to work of general interest, it notes, in the light of this information, that the conditions that it has laid down to ensure that the work in question actually serves the general interest appear to be met overall. With regard to the condition that institutions to which convicted persons may be assigned to perform work of general interest are non-profit-making, the information provided by certain cantons (Appenzell-Outer Rhoden, Glarus, Graubünden, Schaffhausen, St Gallen, Thurgau, Valais) is less precise. Based on the information provided by the authorities of the canton of Valais, it is not possible to verify either of the above conditions in respect of that canton. The Committee would therefore like to receive further information from the authorities of these cantons to verify that the two conditions recalled above have been met.

With regard to the execution of sentences in the form of semi-detention or external work, the information provided by certain cantons does not make it possible to establish the conditions in which convicted persons are required to work for private entities, in particular in terms of wages and social benefits. This is the case for the eastern cantons with regard to both semi-detention and external work and for Berne with regard to external work.

The Committee requests the Government to take all the necessary measures to gather information from those cantonal authorities which have not replied to the questions raised and further information from those that have replied partially, if necessary by explaining the ILO’s supervisory procedures, in particular the role of the Committee, and the obligations of Switzerland arising from the ratification of international labour Conventions. It hopes that all the information will be provided in the Government’s next report.

2. Articles 1 (paragraph 1), 2 (paragraph 1), and 25. Trafficking in persons. The Committee notes the information provided by the Government in 2009 on the manner in which the various national authorities cooperate to combat the trafficking in persons and, in particular, the role played by the Swiss Coordination Unit against the Trafficking of Persons and the Smuggling of Migrants (SCOTT). It notes that cooperation mechanisms between the various partners concerned have been set up in eight cantons and are in the process of being established in four others.

With regard to the identification of victims, the Committee notes that numerous awareness-raising activities were carried out in 2007, 2008 and 2009 targeting the services likely to come into contact with victims (the police, prosecution authorities, private and public victim assistance bodies) in order, in particular, to strengthen their capacities relating to the identification of victims. The Government indicates that the efforts undertaken in this regard need to be continued and extended to other target groups. With regard to the protection of victims, the Government indicates that the Federal Act on Assistance for the Victims of Offences (LAVI; RS 312.5) provides for the right to advice and assistance for any person who has suffered a direct physical, sexual or psychological attack following an offence. Furthermore, the Federal Act on Foreign Nationals (LEtr; RS 142.20) allows the general conditions for entry into the territory to be waived for the victims of human trafficking. Sections 35 and 36 of the Ordinance on admission, stay and the performance of income-generating activities (OASA; RS 142.201) expressly provide for a cooling-off period of at least 30 days for victims of or witnesses to human trafficking, as well as the possibility of obtaining a short-term residence permit where their presence is required for the purposes of the investigation or legal proceedings. The Federal Office for Migration is due to issue specific directives in this regard for the cantons in 2009. The Government adds that the immediate care of victims by specialized bodies increases the willingness of victims to testify and experience has shown that, in those cantons with operational cooperation mechanisms, the participation of victims in criminal proceedings is noticeably higher. Furthermore, the Confederation is currently working with the cantons to draw up uniform regulations on the longer term protection of witnesses, given that such protection constitutes an essential factor in improving measures to combat crime in general and trafficking in persons in particular.

Finally, with regard to the court proceedings initiated against those responsible and their sentencing under the new section 182 of the Penal Code, the Government indicates that major work relating to the training and awareness-raising of the criminal prosecution authorities in connection with the new section 182 of the Penal Code began in 2008 and will continue. However, due to the methods for recording data, statistics on criminal convictions under section 182 of the Penal Code are not yet available.

The Committee also notes the information provided by the Government in the context of its third periodic report under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (see document CEDAW/C/CHE/Q/3/Add.1 of 12 May 2009). It notes, in particular, the victim assistance activities carried out by the FIZ Makasi information centre located in Zurich. In 2007, 167 women victims of trafficking were assisted by the centre, compared to 133 in 2006, representing an increase of 25 per cent. The victims came from 28 countries, with Eastern Europe accounting for 50 per cent of those victims, compared to a third the previous year. With regard to the criminal proceedings initiated against persons suspected of being involved in the trafficking of human beings, in 2008, the Government indicates in this report that 25 cases of such prosecutions were recorded. Over the period 2007–08, eight criminal convictions were handed down on the basis of section 182 of the Penal Code. The sentences imposed ranged from a six-month suspended sentence to 2.5 years’ imprisonment and the fines imposed ranged from 900 francs to 2,400 francs.

The Committee notes with interest all the measures taken by the Government, which demonstrate its determination to combat the complex phenomenon of trafficking in persons. It requests the Government to continue providing information on the coordination and awareness-raising activities developed by SCOTT. Please indicate whether new cooperation mechanisms between the various partners have been implemented in other cantons. With regard to victim protection, the Committee would like the Government to specify whether the Federal Office of Migration has issued specific directives for the granting of residence permits to victims of trafficking and whether the regulations on the longer term protection of victims have been adopted and, if so, it requests the Government to provide a copy. Please also indicate the number of victims who have benefited from a cooling-off period, as well as from a residence permit under sections 35 and 36 of the OASA. In general, please indicate the measures taken to ensure that those responsible are prosecuted, whether on the initiative of victims, by encouraging them to testify and obtain redress, or on the initiative of the prosecution authorities, by allocating them the necessary resources.

Noting that section 182 of the Penal Code punishes the trafficking of human beings with a prison sentence the duration of which is not specified (at least one year if the victim is a minor) or a mere financial penalty, and that the information submitted by the Government to the United Nations Committee on the Elimination of Discrimination Against Women in May 2009 mentions relatively minor sentences taking into account the severity of the offence concerned, the Committee requests the Government to provide information on the court decisions handed down on the basis of section 182 of the Penal Code in order that it may assess whether the sentences handed down for the offence of the trafficking of human beings are really adequate and strictly enforced, in accordance with Article 25 of the Convention.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 2(1) and 2(c) of the Convention. Work of general interest. Prisoners working in establishments managed by private entities. In its previous comments, the Committee requested the Government to provide additional information on the two following points. Under sections 37–39 of the Penal Code, the courts may order, with the agreement of the offender, work of general interest instead of a sentence of imprisonment of under six months or a financial penalty of a maximum of 180 fine-days. Work of general interest is unpaid and is carried out for the benefit of social institutions, works of public utility or persons in need. The Committee requested the Government to provide information on the criteria used by the authorities to determine the type of associations or institutions for the benefit of which work of general interest may be performed, so that the Committee can ascertain that the work performed is indeed of general interest and that the entities for which the work is carried out are not exclusively profit-making. The Committee also requested the Government to provide the list of establishments to which convicted persons can be assigned to perform work of general interest.

With regard to the second point, the Committee noted that, under the terms of section 81 of the Penal Code, detainees who are under the obligation to work may only be engaged by a private employer with their consent. In this respect, the Committee noted that section 379 of the Penal Code empowers the cantons to entrust to establishments managed by private entities the execution of sentences in the form of semi-detention or external work. The Committee requested the Government to indicate in future reports the cases in which the execution of sentences in the form of semi-detention or external work had been entrusted to private entities and, in such cases, to provide information concerning the conditions and modalities of the performance of work by detainees for the benefit of these private entities.

In its last report, the Government indicates that the Confederation does not have available information on the criteria used by the authorities responsible for the execution of sentences in determining the type of associations or institutions for the benefit of which work of general interest is performed, nor a list of the establishments concerned. The same applies to the choice of private entities to which the execution of sentences is entrusted. The Government indicates that a request for information has been sent to the 26 cantonal bodies responsible for the execution of sentences and that this information will be forwarded once it has been received. The Committee notes the action taken by the federal Government to collect the necessary information for the Committee to ensure that full effect is given to the Convention and it hopes that the Government’s next report will contain the information requested.

Trafficking in persons. The Committee notes the adoption on 24 March 2006 of the Federal Order approving the Optional Protocol of 25 May 2000 to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. It notes with interest that this Order amended section 182 of the Penal Code to broaden the elements constituting the crime of trafficking in humans to include trafficking in human beings for the exploitation of their labour. Before this amendment, section 196 of the Penal Code, which has now been repealed, only permitted the penalization of trafficking in human beings for sexual exploitation. The Committee also notes from the information available on the Internet site of the Federal Department of Justice and Police that since 2003 a Swiss Coordination Unit against the Trafficking of Persons and Smuggling of Migrants (SCOTT) has been established to develop prevention, repression and protection strategies and measures to combat the trafficking in human beings. The Committee notes that the SCOTT has published a practical guide on cooperation mechanisms against trafficking in human beings, which contains recommendations intended to provide support in practice for cooperation between the judicial authorities and bodies responsible for the protection of victims. The Committee would be grateful if the Government would provide detailed information in future reports on the manner in which the authorities concerned cooperate and on the difficulties that they encounter in relation to the identification of victims, their protection (health, social and psychological assistance, obtaining a residence permit) and their participation in the judicial procedure; the opening of prosecutions against those responsible and their conviction (in this respect, please provide information on the rulings handed down under new section 182 of the Penal Code); awareness raising and training of the authorities concerned, etc.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the amendments to the provisions of the Penal Code adopted in 2002 will enter into force in 2007.

Article 2, paragraphs 1 and (2)(c), of the Convention

1. Public interest work. The Committee has noted articles 37 to 39 of the Penal Code, which empower the courts to order, as a principal autonomous sanction, the performance of public interest work in place of a financial penalty of up to a maximum of 180 fine-days, where this appears more judicious in the particular case. Under section 37(1) of the Penal Code, offenders cannot be compelled to perform public interest work against their will, and under section 37(2), public interest work is unpaid work carried out for the benefit of social institutions, work having a public utility, or work for persons in need. The Committee has asked the Government to indicate the arrangements for carrying out public interest work for persons in need.

The Committee notes that, according to the Government, public interest work can be performed in retirement homes, foyers and charitable organizations. The Commission has previously noted, in relation to compulsory work for the refusal to perform military service, that the work performed by the compelled person must be in the public interest and, in cases where this work is performed in a private institution, it must have a public utility. The criteria for determining public utility are that gaining a benefit does not constitute the central purpose of the activity concerned and that the results do not advantage a small number or closed circle of beneficiaries. The Committee asks the Government to provide information concerning the criteria used by the authorities for determining the type of associations or institutions for the benefit of which work in the public interest can be performed, in order for the Committee to be assured of their non-profit making objectives. It also asks the Government to supply the list of establishments to which convicted persons can be assigned a public interest job.

2. Prisoners working in establishments managed by private concerns. In its previous direct request, the Committee recalled that work for private companies could be compatible with Article 2, paragraph 2(c), only where prisoners work in conditions approximating a free employment relationship. This necessarily requires the voluntary consent of the prisoner, as well as further guarantees and safeguards covering the essential elements of an employment relationship. In this regard, the Committee notes with interest that, under the terms of article 81 of the Penal Code, "where there is consent, a detainee may be engaged by a private employer".

In addition, the Committee notes article 379 of the Penal Code, according to which the cantons may entrust to establishments managed by private concerns the execution of sentences in the form of semi-detention or external work. The Committee asks the Government to indicate in its future reports the cases in which the execution of sentences are entrusted to private concerns and, in such cases, to supply information concerning the conditions and modalities of the performance of work by detainees in such a context.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. 1. Prisoners working for private companies. Further to its previous comments concerning the process of revising the general provisions of the Penal Code, the Committee notes the Bill to amend the provisions of the Penal Code and the Federal Council’s Message of 21 September 1998. The Committee notes in particular section 81(2), which requires the consent of the prisoner for employment by a private employer; section 83(1), under which prisoners received remuneration in relation to the work actually performed; and section 389(1)(e), which provides that after consulting the cantons, the Federal Council may issue provisions relating to the remuneration of prison labour covered by section 83. The Committee notes that, according to the Federal Council’s Message, these implementing provisions should cover matters relating to social insurance (AVS, AI, unemployment insurance).

In reply to its general observation of 1999, the Government states that there are no prisons administered by private companies in Switzerland. Depending on the status of the prisoner and the manner in which the sentence is served (for example, semi-freedom, semi-detention), convicted persons may work in private enterprises. In such cases, they receive a real wage and the same benefits as ordinary workers. Where permitted by their status or type of sentence, convicted persons may work outside the prison under a normal employment contract. The Committee notes in this respect that, according to the Federal Council’s message of 21 September 1998, prisoners who perform external work (section 77(a) of the Bill), work in enterprises which are not part of the prison establishment and in general conclude employment contracts with their employers and their wages are credited to them. The Committee also notes that, according to the Government’s report, the working conditions in workshops inside detention centres are subject to supervision by the health and labour services in the same way as working conditions outside the prison sector.

The Committee notes the provisions of section 389 (4)(b) and (5), under which the Federal Council may, on an experimental basis and for a specific period of time, envisage or authorize delegating the administration of sentences of imprisonment to establishments managed by private entities which satisfy the requirements of the Penal Code with respect to the serving of sentences (sections 74 to 85, 91 and 92). These establishments are placed under the supervision of the cantons and any implementation of these provisions at the cantonal level must have been approved by the Confederation.

The Committee refers to paragraphs 90 to 109 of its General Survey of 1979 on the abolition of forced labour, paragraphs 112 to 125 of its General Report of 1998 respecting prison labour and paragraphs 82 to 146 of its General Report of 2001 respecting the privatization of prisons and prison labour. The Committee indicated in paragraph 116 of its General Report of 1998 that, under Article 2, paragraph 2(c), work or service exacted from any person as a consequence of a conviction in a court of law is exempted from the scope of the Convention only if the two conditions are met, namely: that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. In paragraph 97 of its General Survey of 1979, the Committee stated that, provided the necessary safeguards exist to ensure that the persons concerned offer themselves voluntary without being subjected to pressure or the menace of any penalty, such employment does not fall within the scope of the Convention. In paragraph 91 of its General Report of 2001, the Committee stated that work for private companies could be compatible with Article 2, paragraph 2(c), only where prisoners work in conditions approximating a free employment relationship. This necessarily requires the voluntary consent of the prisoner, as well as further guarantees and safeguards covering the essential elements of an employment relationship. The Committee specified in this respect that, in the absence of an employment contract and outside the scope of the labour law, seems difficult or even impossible, particularly in the prison context, to reconstitute the conditions of a free working relationship (paragraph 130), and that conditions approximating a free labour relation are the most reliable indicator of the voluntariness of labour (paragraph 143).

The Committee requests the Government to note these requirements of the Convention indicated in the General Survey and to take them into account in the revision of its legislation on these matters. It also requests the Government to continue providing information on the progress of this legislative process.

2. Work of general interest. The Committee notes sections 37 to 39 of the Bill to amend the Labour Code, which lay the legal basis for empowering the courts to order, as a principal autonomous penalty, work of general interest in place of a financial sentence of a maximum of 180 days’ fines where this appears more judicious in the specific case. This solution offers an additional possibility to replace short prison sentences of a maximum of six months (equal to 180 days’ fines) and is in full concordance, according to the Federal Council’s Message, with the logic of the new system based on the broadest possible substitution of short prison sentences. Under section 37(1) of the draft Penal Code, offenders cannot be compelled to perform work of general interest against their will. The Message states that the requirement to obtain the consent of the convicted person offers the latter the possibility of choosing between the financial sentence and work of general interest. By refusing work of general interest, the convicted person may compel the court to impose a financial sentence, but not the reverse.

Under section 37(2) of the draft Labour Code, work of general interest is unpaid work carried out for the benefit of social institutions, work of utility to the public or to persons in need. The Committee requests the Government to indicate the arrangements for the implementation of work of general interest for the benefit of persons in need.

3. Deprivation of freedom for purposes of assistance. In its previous direct request, the Committee requested the Government to continue providing information on the research conducted into the application of the legislation relating to the deprivation of freedom for purposes of assistance, as well as on any measures taken to follow up the conclusions of this research. As it has not received any information on this matter, the Committee requests the Government to provide the requested information in its next report.

Article 1, paragraph 1, and Article 2, paragraph 2(a). 4. Civic service. The Committee notes that, following the revision of the Federal Constitution, article 18 of the Federal Constitution of 29 May 1874, which required the law to provide for the organization of civic service, has become article 59 of the Federal Constitution of 18 April 1999, which came into force on 1 January 2000. This new article provides that the law shall envisage a replacement civic service, all men of Swiss nationality being obliged to perform military service.

The Committee notes the information provided by the Government concerning the establishments and periods of assignment to civic service. It also notes the statistics, which show that 7,290 persons were compelled to perform civic service at the end of 2001. These persons may choose between 1,080 recognized establishments to perform their civic service. At the end of 2001, these establishments offered 4,109 posts. The Committee also notes the detailed statistics annexed to its reports.

The Committee notes the information contained in the Government’s latest report to the effect that the Federal Council submitted a message on 21 September 2001 for the approval of Parliament respecting the amendment of the Federal Act of 6 October 1995 respecting civic service (LSC), and that the above revision forms part of the review of the Federal Act on the army and military administration. The draft amendment was submitted, on 12 March 2002, to the Security Policy Commission of the National Council. The Committee notes that following this revision, civic service may be performed in a single block and that its duration will be slightly reduced (factor 1.3 instead of factor 1.5). The Committee notes that the principal objective of the revision is to adapt the Act on the civic service to the draft reforms of the Army XXI and the Protection of the Population XXI, harmonizing the procedure for admission to civic service with the new procedures for recruitment to the army. According to the message of the Federal Council of 21 September 2001, the provisions of the LSC need to be optimized without undermining current fundamental principles (the reservation of access to civic service to persons who cannot reconcile the performance of military service with their conscience; the examination of reasons of conscience, generally in an individual hearing; the performance of work of public interest outside the framework of the army; the total duration of the service, which is longer than that of training services envisaged by the military legislation; the equality of treatment of persons subject to civic service in relation to persons performing military service). The entry into force of the amended Act is envisaged for 1 January 2004. The Committee requests the Government to provide information on the progress made in the revision process and to continue providing information on the operation of civic service in practice.

Article 1, paragraph 1, and Article 2, paragraph 2(a), (c)

5. Compulsion to work in the event of refusal to serve. The Committee notes subsections 3 and 4 of section 81 of the Military Penal Code (CPM), as amended by Chapter 5 of the annex to the LSC of 6 October 1995. Under the terms of subsection 3, any member of a religious community who, refusing to perform military service for religious reasons, does not submit an application for admission to civic service shall be declared guilty and compelled to perform work of public interest, according to the procedures set out in section 8 of the LSC. Under the terms of subsection 4, "any person who can demonstrate in a credible manner that he cannot reconcile training service to obtain a higher grade with his conscience, but is ready to perform military service within the limits of his current grade, shall be compelled to perform work of public interest", under the terms of section 8 of the LSC.

The Committee draws the Government’s attention to the fact that the above provisions of the CPM are contrary to the provisions mentioned above of the Convention. Under the terms of Article 2, paragraph 2(a), any work or service exacted in virtue of compulsory military service laws for work of a purely military character is, in principle, excluded from the scope of the Convention. However, the Committee has admitted that in the specific case of conscientious objectors, persons subject to compulsory military service may, under certain conditions, choose to perform civic service in its place. But the case envisaged in section 81(3) is completely different since, in this case, the person subject to compulsory military service also refuses to perform civic service in its place. In the hypothesis envisaged in section 81(4), the person subject to compulsory military service is already performing the service, but refuses to accede to higher grades. The Committee emphasizes that in such cases work of public interest cannot be required in place of work of a purely military nature which, under the terms of Article 2, paragraph 2(a), may only be imposed upon persons subject to compulsory military service. Furthermore, the provisions of section 81(3) and (4) of the CPM are contrary to Article 2, paragraph 2(c), in so far as the penalty of work of public interest is performed in the context of civic service which, by virtue of section 3 of the LSC, may be carried out in a private institution performing an activity of public interest. The Committee therefore requests the Government to take the necessary measures to bring the national legislation into conformity with the Convention on this point.

The Committee also notes the information provided by the Government in its latest report to the effect that, as a suspended sentence is possible for persons who partially refuse military service, and particularly service for the purposes of promotion, no training service to obtain a higher grade has been refused for reasons of conscience. The Committee notes that no sentence to perform work of general interest in the framework of civic service with the factor 1.1 has been imposed under section 81(4) of the CPM, as a suspended sentence of imprisonment has been accepted on each occasion. The Committee nevertheless requests the Government to bring the national legislation into conformity with the Convention on this point. It also requests it to provide a copy of the ruling of the Military Cassation Tribunal of 5 September 1997, to which the Government referred in its last report, which made case law on this matter.

Article 1, paragraph 1, and Article 25.

6. Measures adopted or envisaged to prevent, repress and punish the trafficking in persons for the purposes of exploitation. The Committee notes the Government’s response to its general observation of 2001 concerning the trafficking in persons. It notes with interest the report published on 29 May 2002 by an inter-departmental working group set up by the Federal Department of Justice and Police. It notes in particular the deficiencies reported by the working group in the implementation and effectiveness of the penal legislation (and particularly the fact that the penal definition of the trafficking of human beings is too restrictive, as it is limited to trafficking with a view to prostitution) and as concerns assistance to victims (the very restrictive nature of the admission policy has the result of criminalizing victims). It notes the recommendations of the working group, which include the intensification of information in the countries of origin of victims, the launching of an awareness-raising campaign for the potential clients of prostitutes in Switzerland, the introduction of measures to assist in their return, the establishment of a central coordinating service on the "trafficking of human beings", the ratification of the United Nations Protocols on the trafficking of children and human beings in general, the revision of the Penal Code with a view to making the trafficking of human beings a direct criminal offence when it is undertaken for the purposes of the exploitation of their labour or the extraction of their organs, and the revision of the legislation on aliens. The Committee requests the Government to provide information on the effect given to these recommendations.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. 1. In its previous direct request, the Committee noted that, under section 82 of the preliminary draft text prepared by the expert committee appointed by the Government concerning the general part and the third book of the Penal Code, the agreement of the prisoner serving a custodial sentence would be required prior to contracting out to a private employer. The Committee also noted that under section 83(1), the prisoner would receive remuneration for the work actually carried out and, under section 83(3), the Federal Council would settle the details.

The Government stated in the report received in August 1996 that the above preliminary draft text was submitted for consultation in 1993: as a consequence of this consultation, the Federal Council decided to continue with this legislative project and mandated the Federal Department of Justice and Police to submit a draft text in 1997. The Committee again hopes that legislative amendments which will meet the provisions of the Convention will soon be adopted, particularly as regards prisoners hired out to private employers, payment of a normal wage and social security coverage, etc. The Committee requests the Government to provide information, in its next report, as to the progress made with this legislation.

2. Please also continue to provide information with regard to the research being conducted into the application of the legislation relative to the deprivation of freedom for purposes of assistance, as well as on any measures taken to follow up the conclusions of this research.

Article 1, paragraph 1, and Article 2(2)(a). 3. The Committee notes that the Federal Act respecting the civic service of 6 October 1995 provides that persons who are conscripted for the purpose of completing national service and unable to reconcile military service with their personal convictions must complete a period of civic service. Under section 16, the request to serve a period of civic service should be made in writing to the competent authority.

The Committee also notes the adoption of several implementing Ordinances, as well as the detailed information provided by the Government concerning the introduction of a civic service. The Committee would be grateful if the Government would continue to provide information on the operation of such service.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes with interest the detailed information supplied by the Government in answer to its previous direct request.

1. Article 2, paragraph 2(c), of the Convention. With reference to its previous comments, the Committee notes with interest that under section 82 of the preliminary draft prepared by the Committee of Experts concerning the general part and the third book of the Penal Code, supplied by the Government with its report, the consent of the person detained (serving a custodial sentence) is required in order for him to be employed in private activities. It also notes that under section 83(1), the detained person is remunerated according to his performance and that, under section 83(3), the Federal Council settles the details. The Committee refers to the explanations set out in paragraphs 97-101 of its 1979 General Survey on the Abolition of Forced Labour, and hopes that arrangements will be made to ensure that detained persons working for a private employer have guarantees as to the payment of normal wages and social security, enabling the work to be considered as a free labour relationship. The Committee hopes that the Government will shortly be able to report that such measures have been adopted.

2. Deprivation of freedom for purposes of assistance. The Committee notes with interest the legislation adopted by four cantons to implement section 397(a) SS.CC, and the publication by Marco Borghi (in collaboration with Luisa Biaggini) on interdisciplinary research for the evaluation of the effectiveness of legislation on the deprivation of freedom for purposes of assistance, which the Government sent with its report.

It notes that the evaluation of the results and the conclusions of the interdisciplinary research refer, amongst other things, to the failure to comply with the legislator's intent that the law should provide legal protection for all persons interned against their will; inadequate substantiation of decisions concerning committal; insufficient legal aid; failure to comply with the legislator's intent that the law should be exhaustive in terms of the reasons and necessity for committal, illustrated by a decision which, while admitting the complainant's view that a work colony was not the most appropriate means of treating his alcoholism, came to terms with it on the grounds that the establishment was not inadequate (pp. 107-108, note 57). The Committee would be grateful if the Government would continue to provide information on developments in law and practice in this area, including any measures that might have been taken or are envisaged to follow up the conclusions of the research carried out by Professor Marco Borghi and his colleagues.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. Internment of anti-social persons. In earlier comments, the Committee referred to the provisions of the Civil Code which were adopted on 6 October 1978 and came into force on 1 January 1981, concerning deprivation of freedom for purposes of assistance, and asked the Government to provide information on measures taken at the cantonal level to limit the grounds for internment in accordance with the Civil Code, and to supply the relevant texts adopted by the various cantons, including any that repeal provisions establishing idleness as grounds for penalties or enabling the cantonal authorities to oblige administratively interned persons to work.

The Committee notes that in its last report the Government refers to its earlier information to the effect that the new section 397a of the Civil Code gives an exhaustive list of the grounds for internment and renders null and void any cantonal provision conflicting with it; such provisions are rendered void automatically and definitively even though most cantons formally repealed their earlier legislation when they issued the provisions implementing the federal law.

The Committee takes note of the implementing legislation adopted by the Cantons of Berne, the Jura and Lucerne which the Government provided with its last report. It hopes that the Government will be able to supply such legislation from other cantons in its future reports together with information on any difficulties encountered in giving practical effect to these provisions, including any judicial decisions relevant to the application of the Convention.

2. Article 2, paragraph 2(c), of the Convention. In earlier comments, the Committee noted the Government's indications that, in practice, prisoners are employed in private activities outside the prison only with their consent. It also noted that according to an inquiry by the Federal Office of Justice concerning payment for prisoners' work, the prisoners' pay does not constitute a payment equivalent to the value of the labour performed but a factor in the serving of sentences.

The Committee also noted that the Penal Code was in the process of being revised and that the requirements of the Convention would be taken into account in the preliminary draft of the new provisions.

The Committee notes from the Government's report that the revision of the Penal Code is being carried out by a committee which was to publish the results of its work towards the end of 1992.

The Committee recalls that Article 2, paragraph 2(c), of the Convention expressly forbids persons from whom labour is exacted as a consequence of a conviction in a court of law from being hired to or placed at the disposal of private individuals, companies or associations. The only work which can be considered as exempt from this prohibition is work carried out in conditions of a free labour relationship. This necessarily requires the formal consent of the person concerned and the corresponding safeguards in respect of wages and social security enabling the work to be considered as a genuinely free labour relationship.

The Committee hopes that the Government will report on the state of progress of the revision of the Penal Code and that the amendments envisaged will take account of the provisions of the Convention.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. Internment of anti-social persons. In its earlier comments, the Committee asked for information on the measures taken in the various cantons to limit the grounds for internment, in accordance with the provisions of the Swiss Civil Code that came into force on 1 January 1981, which no longer include idleness as a ground for placing a person in an appropriate establishment or include a provision laying down the obligation to work in the establishment. The Government indicated that any cantonal legislation conflicting with the new provisions would be rendered void, since section 397(a) of the Swiss Civil Code lists exhaustively the grounds for internment and renders null and void any conflicting cantonal provision. As the Government had indicated that a reasonable interval was necessary to enable cantons to adapt their legislation to the amendments to the Civil Code and that most of the cantons had already taken the necessary measures, particularly to settle the questions of competence and procedure, the Committee requested the Government to supply the text of the provisions adopted by the cantons in this connection, including any that repeal cantonal provisions establishing idleness as grounds for penalties or enabling the cantonal authorities to oblige administratively interned persons to work.

The Committee notes the information supplied by the Government in its report and the legislation supplied in annex. According to the information supplied by the Government, the provisions of sections 397(a) et seq. of the Civil Code are sometimes set out directly in the implementing legislation under the final provisions, or are taken up in the various amended laws, or are included in the cantonal legislation implementing the Civil Code. In the documentation supplied by the Government, it is stated that in this latter case not all the texts were available, since in this case the new provisions were compiled in the systematic cantonal compilation without the final and transitional provisions which only appear in the texts published in the Official Gazette (Feuille officielle), or the Cantonal Chronological Collection, (Recueil chronologique cantonal), which were not available for the period before 1984-85.

The Committee hopes that the Government will be able to supply the texts published in the Official Gazette (Feuille officielle) or the Cantonal Chronological Collection, (Recueil chronologique cantonal) in order to enable the Committee to make an overall assessment of the application of the Convention in the various cantons.

2. Prison labour. In its previous comments, the Committee noted that, in practice, prisoners are employed on private activities only with their consent and that experts had been appointed to draw up two preliminary drafts for the revision of the general part of the Penal Code.

The Committee notes the information supplied by the Government in its report to the effect that the Federal Council has entrusted a committee of experts with establishing an extensive draft text, based on the text presented by two experts. The Government indicates that the requirements set out in the Convention will be respected in the draft text and that the outcome of the work of the above committee of experts will be communicated as soon as possible. The Committee requests the Government to continue supplying information on the progress made in this work.