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

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

The Committee notes the information provided by the Government in its report. In particular, it notes that the Government ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography on 19 September 2006, and that it has taken measures to raise awareness and for the general prevention of violence and sexual abuse against children. It requests the Government to provide information on the following points.

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. With reference to its previous comments, the Committee notes with interest that section 182 of the Penal Code has been amended to prohibit and penalize any person who engages in the trafficking of a human being for the purposes, inter alia, of sexual or labour exploitation. It also notes that, by virtue of this provision, the act of procuring a person for these ends is assimilated to trafficking. If the victim is a minor, more severe penalties are imposed, and any person who has committed the offence abroad may be charged, prosecuted and convicted if the person is on Swiss territory and has not been extradited. The Committee notes the information provided by the Government that, although Switzerland is not affected by work by minors to a large extent, isolated cases of the exploitation of minors related to trafficking have come to light. In view of this information, the Committee requests the Government to provide information on the effect given to section 182 of the Penal Code in practice, including statistics on the number and nature of the infringements reported, the investigations conducted, prosecutions, convictions and the penal sanctions applied.

Clause (b). 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 noted the Government’s indication that the term “child” 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 indicated 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 however observed that section 195 appears to apply to prostitution and requested the Government to provide clarifications in this respect.

In its report, the Government indicates that, with regard to section 195 of the Penal Code, the Federal Tribunal has given a very broad interpretation to the concept of prostitution. According to the Federal Tribunal, “prostitution consists of the giving of one’s body, occasionally or as an occupation, for the sexual pleasure of another in return for money or other material benefits” (ATF 129 IV 71). Furthermore, according to the Federal Tribunal, “it is not decisive whether or not there is an actual sexual act, whether the relation is heterosexual or homosexual, whether the person engaged in prostitution receives money or other material benefits, or whether the activity is exercised occasionally or as an occupation. This conception is clearly very broad and may, in the case of occasional acts, go beyond the meaning usually accorded to the term” (ATF 129 IV 71). According to the Government, in view of this very broad interpretation of the concept of prostitution, it cannot be excluded that the use, procuring or offering of a minor over 16 years of age for the production of pornography may be punished under section 195 of the Penal Code.

While noting the information provided by the Government concerning the very broad interpretation that the Federal Tribunal has given to the concept of prostitution, the Committee however considers that section 195 of the Penal Code only applies to prostitution and cannot therefore cover the use, procuring or offering of a minor over 16 years of age for the production of pornography. The Committee nevertheless notes the information provided by the Government that section 182 of the Penal Code may also be used to penalize the use of minors over 16 years of age for the production of pornography. It notes the Government’s indication that, in its Message of 25 May 2000 (FF 2005 2639, 2666), the Federal Council indicates that “forms of sexual exploitation include the act of inciting a person to prostitution and exploitation for pornographic images or the production of pornography”. As the Committee needs further information to assess whether section 182 of Penal Code can be applied effectively and to prohibit the use, procuring or offering of a child aged between 16 and 18 years for the production of pornography, it requests the Government to provide information on the effect given to this provision in practice, including statistics on the number of persons prosecuted and found guilty under section 182 of the Penal Code of using, procuring or offering a child between the ages of 16 and 18 years for the production of pornography.

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 the Government’s indication that 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). The Committee also noted the information contained in the Message of the Federal Council of 20 September 1999 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. In this respect, the Federal Council refers to section 24 of the Penal Code, which 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 noted the Government’s indications that it is not in a position to provide information on the effect given in practice to the above provisions, which lie within the responsibility of cantonal jurisdictions, as the means available to the federal administration do not permit it to gather information from the 26 cantons.

The Committee notes the information provided by the Government that section 24 of the Penal Code covers all cases in which a person incites another (the age is of little importance) to commit offences and that it is not therefore necessary to adopt specific provisions covering all the specific cases. It further notes the Government’s indication that there are no centralized statistics at the national level on the convictions obtained under section 24 of the Penal Code in cases where a person has incited a minor to commit an offence. The Committee once again reminds the Government that, so that the Committee can access whether a member State that has ratified the Convention has complied with its obligations, and particularly whether all the necessary measures have been taken to ensure the effective implementation and enforcement of the provisions giving effect to the Convention (Article 7, paragraph 1), it needs certain information, including whether court decisions have been handed down on the worst forms of child labour prohibited by the Convention (Part III of the report form) and statistical data, as requested in Part V of the report form. The Committee once again notes the Government’s indications that it is not in a position to provide information on the application in practice of section 24 in the 26 cantons, as gathering examples of its application from these cantons would require an in‑depth study which the means available to the federal administration do not permit it to undertake. The Committee is nevertheless of the view that Switzerland is in a position to provide this information. Accordingly, emphasizing that the legislation does not explicitly prohibit the use, procuring or offering of a child under 18 years of age for illicit activities, in particular for the production and trafficking of drugs, as required by Article 3(c) of the Convention, and so as to be able to assess whether Swiss legislation is in conformity with the Convention, the Committee once again requests the Government to provide information on the effect given to this provision in practice, including statistics on the number of persons prosecuted under section 24 of the Penal Code for having “caused” a person under 18 years of age to commit illegal acts. The Committee also requests the Government to provide court rulings which refer to this provision.

Article 4, paragraph 1. Determination of hazardous types of work. With reference to its previous comments, the Committee notes that the Federal Council adopted Ordinance No. 5 to the Labour Act (Labour Act Ordinance No. 5-OLTS) on 28 September 2007 and that it will enter into force on 1 January 2008. By virtue of section 4(1)(2) of OLT 5, it is prohibited to employ young persons on hazardous types of work, namely all work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, training or safety of young persons or their physical or psychological development. Moreover, under the terms of section 4(3) of OLT 5, “the Federal Department of Economic Affairs (DFE) shall determine the types of work which, through experience and current technical means, have to be considered as hazardous. In so doing, it shall take into account the fact that young persons, in view of their lack of experience or training, do not have an awareness of risks that is as developed as that of adults, nor do they have the same capacity to avoid them. The Committee notes that, according to the information contained on the Internet site of the State Secretariat for Economic Affairs (SECO), a draft ordinance on hazardous types of work for young persons has been prepared. The Committee expresses the firm hope that the list of hazardous types of work will be determined in the very near future and requests the Government to provide information on any progress achieved in this respect. The Committee also requests the Government to provide information on any consultations held with employers’ and workers’ organizations for the determination of these types of work.

Parts IV and V of the report form. Application of the Convention in practice. With reference to its previous comments, the Committee notes the information provided by the Government and the labour inspection reports for 2004 and 2005 and notes that no infringements of national legislative provisions on the employment of young persons have been reported.