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

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. In its previous comments, the Committee noted 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, among other purposes, sexual or labour exploitation. It also noted that, by virtue of this provision, the act of procuring a person for these ends is assimilated to trafficking. When 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 is not extradited. The Committee noted 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. The Committee requested the Government to provide information on the effect given to section 182 of the Penal Code in practice.

The Committee notes, that according to the Global Report on Trafficking in Persons of the United Nations Office on Drugs and Crime (UNODC) of 2009, seven persons were convicted of trafficking in persons in Switzerland in 2003, compared with two in 2004 and 12 in 2005. The Report also indicates that 17 child victims of trafficking and prostitution were counselled by victim advisory services in 2005, 13 in 2006 and seven in 2007. The Committee notes the Government’s indication that it cannot provide any data for convictions in 2007 and 2008, but that these statistics will be made available by the Federal Statistical Office as soon as possible. The Committee once again requests the Government to provide information in its next report on the number and nature of the infringements reported, the investigations conducted, prosecutions, convictions and the penal sanctions imposed in relation to the sale and trafficking of children for the exploitation of their labour.

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. However, the Committee noted the Government’s indication 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 noted 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”. The Committee requested the Government to provide information on the effect given to section 182 so that it can assess whether this provision can be applied effectively and prohibit the use, procuring or offering of a young person between the ages of 16 and 18 years for the production of pornography.

The Committee observes that section 182 of the Penal Code provides that any person who engages in “the trafficking of a human being for sexual exploitation” is committing an act that may be punished. It observes that this provision does not appear to prohibit the use of a person under 18 years of age for sexual exploitation, irrespective of whether such a person has been the victim of trafficking. Furthermore, the Committee notes the Government’s indication that it cannot provide any statistics on convictions in 2007 and 2008, but that these statistics will be made available by the Federal Statistical Office as soon as possible. The Committee once again requests the Government to provide information in its next report on the effect given in practice to section 182 of the Penal Code through, among others, the provision of statistics on the number of persons prosecuted and found guilty under section 182 of the Penal Code for having used, procured or offered a young person between the ages of 16 and 18 years for the production of pornography, irrespective of whether they have been trafficked for this purpose.

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 there is no provision in Swiss penal law 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 punishes offences related to the manufacture and sale of narcotics (section 19). It further noted that 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. It noted 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 respective cases. The Committee further noted the Government’s indications that it is not in a position to provide information on the effect given to section 24 in practice in the 26 cantons as gathering examples of its application from these cantons would require an in-depth study which the federal administration does not have the means to undertake. The Committee was nevertheless of the view that Switzerland is in a position to provide this information.

The Committee notes the Government’s indication that it cannot at present provide any information on statistics of convictions in 2007 and 2008, but that these statistics will be made available by the Federal Statistical Office as soon as possible. The Committee once again requests the Government to provide information in its next report on the effect given in practice to section 24 of the Penal Code, including statistics on the number of persons prosecuted under this provision for having “caused” a person under 18 years of age to commit illegal acts, so that it can assess whether Swiss legislation is in conformity with the Convention.

Article 4, paragraph 1. Determination of hazardous types of work. Further to its previous comments, the Committee notes with interest that the Ordinance of 4 December 2007 on hazardous types of work for young persons (RS 822.115.2), as determined by the Federal Department of the Economy (DFE) under the Ordinance on the protection of young workers (OLT 5), entered into force on 1 January 2008 and contains a comprehensive list of the hazardous types of work prohibited for young persons under 18 years of age.

Article 5. Monitoring mechanisms. Police stations responsible for the trafficking of persons, paedophilia and pornography. The Committee notes the Government’s indication that, in 2007, police stations responsible for the trafficking of persons, paedophilia and pornography were established within the Federal Criminal Police and have resulted in improvements in the preparation of cases, the coordination between cantons, and the progress of interventions, evaluations and media work. The Committee requests the Government to provide information on the activities of these police stations in combating the trafficking of children and the use of children for the production of pornography.

Parts III and V of the report form. Court decisions and application of the Convention in practice. The Committee notes the Government’s indication that the analyses carried out following the publication of the statistics of convictions on 25 November 2008 showed that a number of rulings were missing. An in-depth analysis to assess the extent to which the data are exhaustive is therefore being undertaken, carried out by the OFS and the Federal Office of Justice. In the meantime, all the statistics and comments relating to the convictions handed down in 2007 have been withdrawn from the OFS’s statistics portal, but will be
made available once again as soon as possible. The Committee however
notes that, on the web site of the OFS relating to criminal penalties (www.bfs.admin.ch/bfs/portal/fr/index/themen/19.html), general statistics are provided, with no distinction being made for violations relating to the worst forms of child labour, including the trafficking of children or the exploitation of their labour, their use for the production of pornography or their use for illicit activities. The Committee once again reminds the Government that, with a view to assessing whether a member State which has ratified the Convention is fulfilling its obligations, and particularly 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)), it needs certain information, including whether decisions have been handed down by courts of law 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. Being of the view that Switzerland is in a position to provide this information, the Committee requests the Government to take immediate measures to ensure that statistics specifically covering violations reported in relation to the worst forms of child labour, including the trafficking of children for the exploitation of their labour, their use for the production of pornography and their use for illicit activities, are available. It requests the Government to provide these statistics as soon as possible.