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

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

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. Sale and trafficking of children. The Committee noted previously the information provided by the Government that an interdepartmental working group had produced a report in September 2001 on the trafficking of human beings in Switzerland. The terms of reference of the above group were to examine whether the State should adopt additional measures, including new legal provisions, to combat the trafficking of persons. The group’s recommendations included amending the Swiss Penal Code in order to extend the definition of "trafficking of human beings" to include trafficking for labour exploitation.

The Committee notes, according to the Government’s indications, that the revision of the Penal Code has not yet been adopted. It notes that, according to the legislation in force, only the trafficking of human beings for sexual exploitation is subject to penal sanctions. The Committee notes too that a revised section 182 of the Penal Code has been proposed which provides that any person who engages in the trafficking of human beings for sexual exploitation, labour exploitation or the removal of human organs shall be sentenced to imprisonment, in the same way as any person who has taken steps for the trafficking of human beings. The Committee further notes that the draft text of section 182 of the Penal Code provides that offences committed abroad shall be punished if the offender is in Switzerland and has not been extradited. The Committee requests the Government to take all the necessary measures for the Penal Code to be revised as soon as possible so as to prohibit the trafficking of children for economic and sexual exploitation.

Clause (b). 1. Use or procuring of a young person of 16 years of age for prostitution. The Committee noted previously that, in its Message, the Federal Council indicated that, under Swiss penal law, the age of sexual consent is 16 years (section 187 of the Penal Code) and that young persons between 16 and 18 years of age may engage in prostitution, provided that they do so of their own free will. It also noted that the Federal Council considers that, in so far as persons of between 16 and 18 years of age who are engaged in prostitution are not used or procured for the purpose of prostitution, such conduct does not fall within the scope of Convention No. 182. The Committee further noted that section 195 of the Penal Code punishes whomsoever "induces" ("pousse") a young person into prostitution. According to the Federal Council, to "induce" to prostitution means to initiate and cause a person to engage in prostitution, and the terms "use" and "procuring" for prostitution, within the meaning of Convention No. 182, are covered by the term "induce into prostitution" used in national law. They all have the connotation of constraint. The Committee previously requested the Government to specify the criteria for ascertaining whether persons between the ages of 16 and 18 years of age who prostitute themselves do so of their own free will.

The Committee notes the Government’s indications that the Federal Tribunal has ruled on what it understands by "inducing" a young person to prostitution in its ruling of 26 November 2002. The Tribunal specified that the freedom of a victim to act and to make a decision personally has to be assessed as a function of the victim’s individual capabilities in the general context of the case. With young persons, a lower level of pressure is required. The Government adds that, according to the Tribunal’s ruling, the fact of persuading a young person to engage in prostitution is an act which may be punished by penal sanctions without the need for there to be a relationship of dependence with the person committing the act nor for that person to receive any economic benefit.

2. Offering a child for prostitution. The Committee noted previously 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 however relates to influencing young persons to engage in 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 prostitution in such cases constitutes a serious abuse of parental authority (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). Under the terms of section 188(1) of the Penal Code, such an offence may also be punishable by imprisonment. The Committee requested 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 takes due note of the Government’s indications that the Federal Tribunal considered, in the ruling of 26 November 2002, that the act of contacting clients and "offering" them a young person for prostitution constituted an offence within the meaning of section 195(1) of the Penal Code. The Government adds that the act of persuading a young person to engage in prostitution is an act which is punishable by penal sanctions without the need for any relationship of dependency with the person who commits the act, nor for the latter to obtain any economic benefit.

3. Use, procuring or offering of a child for the production of pornography. The Committee noted previously that sections 135 and 197 of the Penal Code punish the use, procuring or offering of a child for the production of pornography. It notes the Government’s indications that the word "child", as used in section 197(3) of the Penal Code which prohibits the manufacture of pornography involving children, applies to children under 16 years of age. The Government also indicates that section 195 of the Penal Code prohibits the use, procuring or offering of a child under 18 years of age for the production of soft pornography. The Committee observes however that section 195 appears to apply to prostitution. The Government is accordingly requested to clarify its response to the Committee’s previous request.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee noted previously that, according to the Government’s report, in Swiss penal law there is no provision explicitly punishing the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. It also noted that the Narcotic Drugs Act (Lstup) punishes offences related to the manufacture and sale of narcotics (section 19 of the Lstup). It further noted the information contained in the Message of the Federal Council to the effect that offenders may be punished as perpetrators-instigators if they induce or force a child who lacks the capacity to judge to commit the offence, and as instigators if they wilfully incite the child to commit the offence voluntarily. Section 24 of the Penal Code provides that any person who wilfully causes another person to commit an offence or crime shall be liable, if the offence is committed, to the penalty established for the perpetrator of the offence, and that any person endeavouring to cause another person to commit an offence shall be liable to the penalty established for attempts to commit that offence.

The Committee notes the Government’s indications that it is not in a position to provide information on the application in practice of the above provisions, which lie within the responsibility of cantonal jurisdictions. It adds that the means available to the federal administration do not permit it to gather information from the 26 cantons. The Committee reminds the Government that, in order for the Committee to assess whether a member State that has ratified the Convention has complied with the Convention, in particular whether all necessary measures have been taken to ensure the effective implementation and enforcement of the provisions giving effect to the Convention (Article 7(1)), the Committee needs the statistical data requested under Part V of the report form. Noting that the legislation does not explicitly prohibit the use, procuring or offering of a young person under 18 years of age for the production and trafficking of drugs, as required by Article 3(c) of the Convention, the Committee once again requests the Government to indicate the number of persons prosecuted under section 24 of the Penal Code for having "convinced" a person under 18 years of age to commit illicit activities so that it can assess whether the Swiss legislation is in conformity with the Convention.

Clause (d). Hazardous work. In its previous comments, the Committee noted the Government’s indication that Labour Act Ordinance No. 5 (OLT 5), covering only the protection of young persons at work, was under preparation. It also noted that, according to the information contained in the Government’s report of 2003, the entry into force of this Ordinance, initially envisaged for the end of 2002, had been postponed until 2003, and then to the end of 2005. The Committee further noted that two draft Ordinances of the Federal Department of the Economy, one on hazardous types of work for children and young persons, the other on the exemption from the requirement of authorization for work by children and young persons at night or on Sundays, were prepared in relation to the OLT 5 and submitted for consultation in August 2002.

The Committee notes the Government’s indications that the OLT 5 will certainly not be adopted in 2005 due to the high number of parties intervening in the consultation process. The latter are seeking the lowering to 18 years of the age of protection established by the Labour Act. The Committee requests the Government to continue providing information on the entry into force of the OLT 5 and the additional ordinances issued under it, and it hopes that these texts will be adopted in the very near future.

Article 4, paragraph 1. Determination of hazardous types of work. The Committee noted previously that sections 47 to 49 of Labour Act Ordinance No. 1 (OLT 1) determine the hazardous types of work prohibited for persons under 19 years of age, pursuant to section 29 of the Labour Act (LTr). However, it noted that, in its Message, the Federal Council had stated that it would be necessary to adapt certain activities covered by section 55 of the OLT 1 (respecting work by young persons under 15 years of age no longer required to attend school) by increasing the required age to 18 years, which would be done within the context of the new OLT 5, the entry into force of which has been deferred until the end of 2005. The Committee notes the Government’s indications that the OLT 5 has still not been adopted. The Committee requests the Government to provide information on the procedure for the adoption of the list of hazardous types of work within the meaning of the Convention and to provide a copy of it as soon as it has been definitively determined.

Article 4, paragraph 2. Identification of where hazardous types of work exist. The Committee noted previously the Government’s indications that the location of hazardous types of work within the meaning of the new OLT 5 cannot as yet be described or provided since, being in draft form, they may still undergo further amendment before coming into force. The Committee notes that, according to the Government’s report, as the OLT 5 has still not been adopted, it is not in a position to provide information on where hazardous types of work exist. Noting that the revision of the OLT 5 has continued to be deferred, the Committee requests the Government to provide information on the measures adopted to identify where the hazardous types of work determined by the legislation that is in force exist.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to this Convention. 1. Labour inspection. The Committee noted previously the indications contained 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 prosecuting authorities. The Committee notes that the social partners were consulted on the implementation of the monitoring mechanisms. It also notes the labour inspection reports for 2001, 2002 and 2003. It observes that in 2003, the labour inspectorate reported four cases of violations relating to the provisions covering work by young persons. The Committee however notes that the labour inspection report does not provide precise information on the provisions under which the persons concerned were prosecuted, nor the penalties imposed. It therefore requests the Government to provide information on the violations reported and the penalties imposed.

2. Coordination Service for Combating Human Trafficking and Trafficking in Migrants (SCOTT). The Committee noted previously that the Coordination Service for Combating Human Trafficking and Trafficking in Migrants (SCOTT), established in 2001, began operations in January 2003. SCOTT is responsible for coordinating action in the fields of prevention, criminal prosecution and the protection of victims, and for ensuring cooperation between the authorities and organizations concerned, including NGOs. It also noted that an Internet monitoring unit had been created to identify child pornography on the Internet.

The Committee notes with interest the Government’s indications that a Commissariat on paedophilia, human trafficking and trafficking in migrants (PMM), attached to the federal judicial police, started operations on 1 January 2003. The PMM coordinates complex operations relating to investigations carried out in several cantons or abroad. It is also the authority which is the counterpart for Interpol for cases of paedophilia, human trafficking and trafficking in migrants.

Article 6. Programmes of action to eliminate the worst forms of child labour. The sexual exploitation of children. The Committee noted previously the Government’s indications that, although the prevention of sexual abuse and exploitation still needs to be enhanced, primary importance should be accorded to intervention and the care, monitoring and rehabilitation of children who are victims of such offences. The Committee noted that many official departments and institutions protect children from the worst forms of child labour, with particular reference to youth protection services, social assistance services, centres dispensing medical, psychological, social and pedagogical assistance, guardianship services, child psychiatry services, etc. According to the Federal Council, non-governmental organizations, certain of which receive public subsidies, also carry out very important work in this field.

The Committee notes that, according to the Government, cases of sexual exploitation of children for commercial purposes are very rare in Switzerland in comparison with other countries, but that the phenomenon does indeed exist. The Government adds that it is extremely difficult to assess the extent of the phenomenon of the sexual exploitation of children and that it would be necessary to considerably improve the compilation of data and statistical surveys. It notes the Government’s reference in its report to the publication in March 1999 of the findings of preliminary qualitative research on this subject, which shows that the children and young persons concerned are confronted by very complex situations: exploitation in the family context or in their close social environment, occasional prostitution to buy drugs, street prostitution and child pornography, even including the detention of young persons in brothels in conditions similar to slavery. The Committee notes that, according to the study, girls and boys are affected to the same extent. The research also shows that the sexual exploitation of children for commercial purposes occurs in private and in the immediate social environment. The Committee requests the Government to continue providing information on the implementation of programmes of action to eliminate the commercial sexual exploitation of children.

Article 7, paragraph 2. Effective and time-bound measures. Clauses (a) and (b). Measures to prevent the engagement of children in the worst forms of child labour and assistance for the removal of children from the worst forms of child labour. 1. The trafficking of children. The Committee noted previously that, according to the report of the interdepartmental working group, known cases of trafficking of children in Switzerland are rare. It however noted that, according to the International Organization for Migration (IOM), prostitution networks using women from developing countries or from Eastern Europe seek to bring women with children who are minors, with the result that the trafficking of women is sometimes combined with the trafficking of children. According to the same source, Switzerland is one of the main countries of transit and destination for human trafficking. The Committee notes the Government’s indications that, up to now, no case of trafficking of children for sexual exploitation has been found by the federal authorities in Switzerland. It adds that isolated cases of exploitation of young persons related to trafficking are known, particularly in the field of domestic work. The Committee therefore requests the Government to indicate the measures adopted or envisaged to prevent the trafficking of children for economic exploitation.

2. Sexual exploitation of children. The Committee notes with interest the Government’s indications that ECPAT Switzerland, in collaboration with the travel agent Hotelplan, launched a pilot project in 2004 to combat sex tourism. Codes of Conduct have been published for travellers. ECPAT has also prepared a guide providing examples and practical recommendations to combat paedophilia and pornography on the Internet.

Clause (d). Children at special risk. Self-employed workers. In its previous comments, the Committee noted that the scope of the Labour Act (LTr) is narrow and does not cover the self-employed. It requested the Government to indicate the manner in which children working on their own account or without remuneration are protected against the worst forms of child labour. The Committee notes the Government’s indications that the gaps in the national legislation are filled by the provisions of the Convention which, due to the fact of its ratification, have become directly applicable and an integral part of federal law.

Article 8. Enhanced international cooperation and assistance. The Committee noted previously that the Government was envisaging revising the Penal Code to allow the prosecution in Switzerland of sexual offences against children committed abroad in cases where the law of the foreign country is more lenient or does not criminalize such acts. The Committee however noted that section 6 of the Penal Code, as amended in September 2003, does not appear to establish such a provision, as it envisages that the Code applies to any Swiss national who commits a crime or offence abroad that is 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 still apply if it is more favourable to the offender. The Committee takes due note of the Government’s indications that section 5 of the new General Part of the Penal Code, adopted in 2003, specifically establishes the competence of Switzerland for sexual offences committed abroad against young persons, without the requirement of dual criminal liability.

Part III of the report form. Judicial decisions. The Committee previously noted the Government’s indications that no court had issued any decisions addressing matters of principle relating to the application of Convention No. 182. The Committee notes that, according to the Government, the Federal Tribunal, in a ruling of 5 October 2004, confirmed the decision of the Court of Solothurn convicting a person for downloading pornographic photographs of children from the Internet and saving them on a hard disc. The Federal Tribunal found that the act of downloading photographs or other data with criminal content was equivalent to producing the data and not possessing it (which would not have been penalized), and that this act could be punished by a maximum sentence of three years’ imprisonment.

Part V of the report form. The Committee noted previously the information contained in the Government’s report referring to the 1999 and 2002 reports of the Swiss branch of the association against the commercial sexual exploitation of children (ECPAT International), ECPAT Switzerland, which combats, among other issues, sex tourism and the commercial sexual exploitation of children. Noting the lack of information in the Government’s report on the nature, extent and trends of the worst forms of child labour, and particularly the sexual exploitation of children in Switzerland, the Committee once again requests the Government to provide information on this subject. To the extent possible, the information provided should be disaggregated by sex. The Committee also once again requests the Government to provide information on the types of infringements reported of the provisions on work by young persons, particularly where they relate to hazardous types of work and other worst forms of child labour.