Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Worst Forms of Child Labour Convention, 1999 (No. 182) - Switzerland (Ratification: 2000)

The Committee takes note of the information supplied by the Government in its first and second reports. It requests the Government to provide information on the following points.

Article 1 of the Convention. Measures to secure the prohibition and elimination of the worst forms of child labour. The Committee notes that the Government refers in its report and in the Message of the Federal Council ratifying Convention No. 182 addressed to Parliament on 20 September 1999, to the adoption of Labour Act Order No. 5 (OLT 5), which specifically addresses the protection of young people at work. The Committee notes from the information in the Government’s report for 2003 that the Order, originally due to enter into force before the end of 2002, was rescheduled to August 2003 and will finally take effect at the end of 2005. The Committee also notes that pursuant to OLT 5 the Federal Department of the Economy prepared two draft orders, one on work which is hazardous for children and young people and the other on exemptions from the requirement to seek authorization for children and young people to work at night, and that it submitted them for consultation in August 2002. The Committee requests the Government to continue to provide information on the entry into force of OLT 5 and the abovementioned implementing orders, and hopes that the date set, the end of 2005, will be met.

Article 3. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. Trafficking of children. The Committee notes the Government’s indication that an interdepartmental working group produced a report in September 2001 on the trafficking of persons in Switzerland. The Committee notes that under its terms of reference the abovementioned group was to examine whether the State should undertake additional measures, including new legal provisions, in order to combat the trafficking of persons. The group issued a series of recommendations, including amendment of the Swiss Penal Code, in order to extend the definition of "human trafficking of persons" to include the purpose "labour exploitation". The Committee notes that under the current legislation only the trafficking of persons for the purpose of sexual exploitation is punishable as a criminal offence. In the Committee’s view, the definition of human trafficking in the Penal Code ought to be extended to include trafficking for the purpose of exploiting labour. The Committee notes that a revision has been proposed for section 182 of the Penal Code to establish a penalty of imprisonment for whoever engages in or acts with a view to human trafficking for the purpose of sexual exploitation, the exploitation of labour or the removal of human organs. The draft revision of section 182 of the Penal Code also punishes offences committed abroad if the offender is in Switzerland and is not extradited. The Committee requests the Government to continue to provide information on the proposals submitted by the interdepartmental working group on the trafficking of persons and in particular the proposed revision of the Penal Code which seeks to punish not only human trafficking for the purpose of sexual exploitation but all other forms of human trafficking.

The Committee also notes that according to the report of the interdepartmental working group, known instances of child trafficking in Switzerland are rare, which explains why there is little information on the subject. The Committee notes, however, that according to the International Organization for Migration (IOM), traffickers recruiting for prostitution in Third World countries and Eastern Europe reportedly seek to bring in women with children who are minors, trafficking in women thus being combined with child trafficking in some instances. According to the same source, Switzerland is one of the main countries of transit and destination for human trafficking. The Committee requests the Government to provide information on any cases brought to its attention.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that in its Message, the Federal Council states that, under Swiss penal law, the age of sexual consent is 16 years (section 187 of the Penal Code) and that children between 16 and 18 years of age may prostitute themselves provided they do so of their own free will. The Committee notes that, in the view of the Federal Council, in so far as persons of 16 to 18 years of age who prostitute themselves are not used or procured for the purpose of prostitution, their conduct does not fall within the scope of Convention No. 182. The Committee notes that section 195 of the Penal Code punishes whosoever "drives" ("pousse") a minor to prostitution. According to the Federal Council, to "drive" to prostitution means to initiate and cause to engage in prostitution; and the terms "use" and "procuring for the purpose of prostitution" within the meaning of Convention No. 182 are covered by "drive to prostitution", the expression used in Swiss law: all imply constraint. The Committee requests the Government to specify the criteria for ascertaining whether persons from 16 to 18 years of age who prostitute themselves do so of their own free will.

The Committee also notes that, according to the Federal Council, the term "offering" for prostitution used in Convention No. 182 is less clear-cut as a concept than "use" or "procuring". It covers the possibility of a young person being offered for prostitution in the context of a relationship of authority and dependence, as may occur for example in the exercise of parental authority or in a work relationship. Offering for the purpose of prostitution constitutes in such cases a serious abuse of parental authority, since the purpose of the latter is to secure the good of the child (section 301 of the Civil Code) or a serious breach of the employer’s duty of protection towards the worker (section 328 of the Code of Obligations). Moreover, under section 188(1) of the Penal Code it is an offence punishable by imprisonment. The Committee requests the Government to indicate the measures that apply when a person under 18 years of age is offered for prostitution by someone other than persons holding parental authority or an employer.

The Committee further notes that, according to the Government, it can be affirmed that instances of sexual exploitation of children for commercial purposes are few in Switzerland by comparison with other countries, but that the phenomenon does exist. The Committee also notes that, according to the information sent by the Government in its report, it is extremely difficult to measure the extent of sexual exploitation of children and that data collection and statistical surveys need to be improved. It notes that the Government refers in its report to the results of initial research into the subject, published in March 1999, which show that the children and young persons involved are confronted with very complex situations: exploitation in the context of the family or the immediate social environment, occasional prostitution to obtain drugs, street prostitution or child pornography and detaining young people in brothels, which is similar to slavery. The Committee notes that, according to the research, boys and girls are affected in equal numbers; and that the sexual exploitation of children for commercial purposes takes place in private and in the immediate social environment. The Committee requests the Government to continue to provide information on instances of sexual exploitation of children.

2. Pornography. The Committee notes that sections 135 and 197 of the Penal Code punish the use, procuring or offering of a child for the production of pornography. It further notes that in its report to the Committee on the Rights of the Child, the Government states that from 1993 to 1996 convictions for sexual acts with a pornographic connection involving children practically doubled, from 17 to 30. From 1993, the first full year after the entry into force of the new provisions on sex-related crime, to 1996 the number of convictions for pornography rose from 60 to 272. The Committee requests the Government to indicate whether the word "child", used in section 197 of the Penal Code, covers everyone under 18 years of age or only persons under 16 years of age. The Committee reminds the Government that this provision of the Convention prohibits the use, procuring or offering of a child, that is to say anyone under 18 years of age, for the production of pornography or for pornographic performances.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that, according to the Government’s report, in Swiss penal law there is no provision expressly punishing the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that the Narcotic Drugs Act punishes offences related to the manufacture and buying and selling of narcotics (section 19). It further notes the information in the Federal Council’s Message to the effect that offenders may be punished as perpetrators-instigators if they incite or force a child who lacks the capacity to judge to commit the offence, and as instigators if they wilfully drive the child to commit the offence voluntarily. Section 24 of the Penal Code provides that anyone who wilfully causes another person to commit an offence is liable, where the offence is committed, to the penalty established for perpetrators of the offence, and that anyone attempting to cause another person to commit an offence is liable to the penalty established for attempts to commit the offence. The Committee requests the Government to provide examples of the practical effect given to the provisions governing children under 18 years of age.

Clause (d). Hazardous work. The Committee notes that in April 2002 the Federal Labour Commission studied a draft reform of Labour Act Order No. 5 on the protection of young people at work. The draft defines hazardous work. The Committee requests the Government to provide a copy of the text as soon as it is adopted.

Article 4, paragraph 1. Determination of hazardous work. The Committee notes that sections 47-49 of Labour Act Order No. 1 (OLT 1) determines hazardous work prohibited for persons under 19 years of age pursuant to section 29 of the Labour Act. The Committee notes, however, that in its Message the Federal Council stated that section 55 of OLT 1 which deals with the employment of young persons under 15 years of age who are released from compulsory schooling, should be adapted by increasing the minimum age to 18 years for some of the activities covered, and that this will be done in the context of the new OLT 5, the entry into force of which has been deferred until the end of 2005. The Committee notes that, according to the Government’s report, the types of hazardous work to be determined by the new OLT 5 cannot as yet be described and that the draft of OLT 5 has been submitted for consultation with the parties concerned, including employers’ and workers’ organizations, in accordance with Article 4, paragraph 1, of the Convention. The Committee requests the Government to continue to provide information on progress in the adoption of the list of hazardous types of work within the meaning of the Convention, and to provide a copy of the final version as soon as it is completed.

Paragraph 2. Identification of hazardous work. The Committee notes the information in the Government’s report to the effect that the location of hazardous work within the meaning of the new OLT 5 cannot as yet be described or provided because, being in draft form the new OLT 5 may undergo further amendment before coming into force. The Committee requests the Government to provide information on the measures taken to identify where types of hazardous work exist, as soon as OLT 5 has been adopted.

Paragraph 3. Periodic examination and revision of the list of the types of work determined as hazardous. The Committee notes that, according to the information supplied by the Government, the list of these types of work will be examined every five years and revised by the Federal Labour Commission (CFT). The Committee requests the Government to provide information on the revision of the lists and to provide any copies of revised lists.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to this Convention. The Committee notes the information in the Message of the Federal Council that, with regard to Article 3 of the Convention, the machinery for monitoring implementation is the responsibility of the penal authorities and of the labour inspectorate, which reports offences to the penal prosecutor. The Committee requests the Government to provide information on the operation of these mechanisms, including extracts of reports or documents. It also asks the Government to indicate the consultations held with organizations of employers and workers, in accordance with the provisions of Article 5 of the Convention.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes that in its report the Government states that although the prevention of sexual abuse and exploitation needs to be enhanced, intervention and the care, monitoring and rehabilitation of the children who are victims of such offences are of primary importance. The Committee notes that there are many official departments and institutions in the various cantons that have responsibility for such care, including youth protection services, social assistance services, a variety of centres dispensing medical, psychological, social and pedagogical assistance, guardianship services, child psychiatry services, etc. New specialized services have been created in hospitals and elsewhere to assist children who have been ill-treated and sexually abused. The Committee notes with interest that the Federal Act on Assistance for Victims of Offences, 1991 (LAVI) requires all cantons to ensure that victims have access to consultation centres on a partly free basis. The Committee also takes note of the numerous federal authorities referred to by the Government: since 1996 the Central Office for Family Matters of the Federal Social Insurance Office (OFAS) has had a share in coordinating child protection, and has a budget for projects to prevent the ill-treatment of children. The Central Office for Combating Human Trafficking of the Criminal Investigation Department also deals with prostitution, pornography and human trafficking offences; it coordinates inter-cantonal and international procedures, and collects, analyses and exchanges information. An Internet-Monitoring Task Force has been created to track child pornography on the Internet. The Committee notes that according to a survey by the Federal Police Office (OFP), no Swiss servers disseminate paedophile pornographic content on the Web. A Coordination Service for Combating Human Trafficking and Trafficking in Migrants (SCOTT) was established in the OFP in 2001, and began work in January 2003. It is composed of representatives of the federal and cantonal authorities and serves both the Confederation and the cantons as a focal point for information, coordination and analysis and also serves as an outreach and coordination post for international cooperation. As a partner in all human trafficking issues, SCOTT will provide considerable support to the authorities responsible for investigating this type of offence. The Committee notes the information supplied by the Government to the effect that a Coordination Service to Combat Internet Crime (SCOCI) has been established in the OFP enabling significant progress to be made in strengthening the fight against pornography.

The youth protection services deal with various aspects of child development (medical, psychological, social, cultural, financial and legal). According to the Federal Council, non-governmental organizations, some of which receive public subsidies, also make a major contribution in this area, particularly the Swiss branch of ECPAT International: ECPAT Switzerland (Kinderschutz Schweiz/Arge kipro), which combats sex tourism in particular, mainly child abuse by Swiss nationals abroad; the International Committee for the Dignity of the Child (CIDE), which combats the various forms of commercial sexual exploitation of children in Switzerland and abroad; the International Social Service (ISS) and the Information Centre for Women from the Third World (FIZ) both of which receive subsidies from the Confederation; and the Swiss section of Defence for Children International (DCI). Lastly, the national telephone helpline, 147, subsidized by the Confederation, enables children and young persons in distress to express themselves freely, anonymously and on a confidential basis. The Committee notes the Government’s statement in its report that in view of the measures taken under Articles 3 and 4 of the Convention the objective of prohibiting and eliminating the worst forms of child labour can be said to have been attained in Switzerland and that the Government therefore deems it inadvisable to formulate any further programmes of action in the area of hazardous work. The Committee reminds the Government that according to Article 6 of the Convention, each Member shall design and implement programmes of action to eliminate as a priority the worst forms of child labour, including hazardous work. It therefore requests the Government to continue to provide information on the implementation of programmes of action devised, and to indicate any such programmes of action for the elimination of dangerous work.

Article 7, paragraph 2. Effective time-bound measures. Clauses (a) and (b). Measures to keep children out of the worst forms of child labour and assistance for the removal of children from the worst forms of child labour. The Committee notes with interest the information in the Government’s report to the effect that following the publication of the first report on the ill-treatment of children in Switzerland and the Federal Council’s opinion on the report, the OFAS Central Office for Family Matters was made responsible for certain coordination activities in the area of child protection and the prevention of the ill-treatment of children. The Committee further notes that LAVI applies also to minors who are victims of the worst forms of child labour within the meaning of the Convention. These victims are entitled to benefits established by LAVI including the right to seek medical, psychological, social, material and legal assistance at a consultation centre.

Clause (d). Children at special risk. The Committee notes with interest the information in the Message of the Federal Council that several cantons and towns as well as the Federal Statistics Office (OFS) have improved their statistics in the last few years. The Government believes that the statistics on social assistance and the system of reports on poverty carried out by the OFS will help better to target measures to combat social exclusion and the exploitation of young people at work and will contribute to sensitizing the population. The Federal Council further indicates that child prostitution and other forms of commercial exploitation of children are quite frequently linked to drug addiction and that the Federal Office for Public Health (OFSP) is implementing drug prevention programmes.

The Committee observes that the scope of the Labour Act is narrow and does not cover the self-employed. It therefore asks the Government to indicate how children working on their own account or without remuneration, in the informal sector, and who are not covered by the applicable legislation are protected against the worst forms of child labour.

Clause (e). Special situation of girls. The Committee notes the information in the Government’s report to the effect that the Confederation contributes funds to UNICEF’s activities, particularly those to combat violence and sexual abuse against girls.

The Committee requests the Government to continue to provide information on the measures taken with regard to each of the items (a) to (e) of Article 7, paragraph 2, of the Convention and, if any of the measures are time bound, to specify the time frame.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes the conventions and international arrangements in force in Switzerland which the Federal Council set forth in its Message, particularly those concerning forced labour, slavery and child trafficking, including: the International Arrangement for the Suppression of the White Slave Traffic, 18 May 1904; the International Convention for the Suppression of the White Slave Traffic, 4 May 1910; the International Convention for the Suppression of the Traffic in Women and Children, 30 September 1921, the aim of which is to seek out and punish anyone engaging in trafficking of children of either sex; the Convention of 25 September 1926 on Slavery; the Abolition of Forced Labour Convention, 1957 (No. 105), 25 June 1957, of the ILO; the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, 12 September 1923. Switzerland has also signed the Convention against Transnational Organized Crime (Palermo Convention), 12 December 2000, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea and Air, 2 April 2002. The Committee further notes with interest that the Federal Police Office participates actively in the Interpol Specialist Group on Crime against Children which took part in preparing the Handbook of Good Practice for Specialized Officers Dealing with Crimes against Children. Furthermore, according to the Government, there has been cooperation and/or international assistance in the last few years, particularly under programmes conducted by the Development and Cooperation Department (DDC). The latter’s social development policy, adopted in January 1999, and the adaptation of programmes to countries will ensure that aid to combat poverty will be even better targeted and coordinated. The Committee also notes that Switzerland is a donor to IPEC, the funds contributed by the Confederation having been used to finance programmes in Pakistan since 1998.

The Committee notes that the Government envisages revising the Penal Code to allow the prosecution of sexual offences against children abroad where the law of the foreign country is more lenient or does not treat such offences as criminal. The Committee notes, however, that section 6 of the Penal Code, as amended in September 2003, does not appear to make such provision since it establishes that the Code applies to any Swiss national who commits abroad a crime or misdemeanour extraditable under Swiss law, if the offence is punishable in the State where it was committed and if the offender is in Switzerland or extradited to Switzerland because of the offence, provided that the law of the foreign country shall apply if it is more favourable to the offender. The Committee requests the Government to provide information on developments in the revision of the Penal Code to allow the prosecution of sexual offences committed against children abroad, where the law of the country concerned is less severe or does not treat the offence as criminal, together with information on any other international cooperation measures taken in this area.

Part III of the report form. Judicial decisions. The Committee notes that, according to the Government, to its knowledge no courts have issued any decisions addressing issues of principle concerning the application of Convention No. 182. The Committee requests the Government to indicate any decisions by courts of law that involve questions of principle relating to the application of the Convention.

Part V of the report form. The Committee notes the information in the Government’s report concerning the reports of 1999 and 2002 (German version) of the Swiss branch of ECPAT International: ECPAT Switzerland (Kinderschutz Schweiz/Arge kipro) which is involved in combating sex tourism and the commercial sexual exploitation of children. The Committee requests the Government to provide information on the nature, extent and trends of the worst forms of child labour, particularly the sexual exploitation of children in Switzerland. To the extent possible, the information provided should be disaggregated by sex. The Committee also asks the Government to provide information on the types of breach of the provisions on young people at work, particularly if they involve hazardous work or other worst forms of child labour.