Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 3 of the Convention. Worst forms of child labour. Clause (b). Use or procuring of a child for prostitution. In its previous comments, the Committee noted that section 187 of the Penal Code penalizes any person who commits a sexual act with a child under 16 years of age. It noted that the Federal Council, in its report and message of 20 September 1999, indicates that section 187 establishes the age of sexual consent at 16 years, 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. The Committee also noted that section 195 of the Penal Code punishes any person who induces a young person (namely, a person who has not yet reached the age of 18 years) to engage in prostitution. The Committee considered that section 195 of the Penal Code covers the prohibition on procuring a child under 18 years of age for prostitution, in accordance with the Convention. However, it observed that, as regards the use of a child under 18 years of age for prostitution, Swiss penal law is not fully in conformity with the Convention inasmuch as section 187 of the Penal Code only punishes those who have committed acts of a sexual nature with children under 16 years of age. The Committee emphasized that it is necessary to make a distinction between the age of sexual consent and the freedom to engage in prostitution. It considered that, even though the national legislation (section 187 of the Penal Code) recognizes that a child of over 16 years of age may lawfully consent to a sexual act, the age of consent does not affect the obligation to prohibit this worst form of child labour. It also considered that the act of engaging in a sexual act with a child under 18 years of age for remuneration constitutes the use of a child for prostitution, whether or not the child consents.

The Committee noted the Government’s indication that the issue of extending the culpability of persons who have recourse to the prostitution of young persons under 16 years of age to those who have recourse to the prostitution of young persons between the ages of 16 and 18 years was under discussion and that parliamentary interventions had already been submitted on the subject, in which the Federal Council considered that the prostitution of young persons under 18 years of age could be prejudicial to their sexual development, traumatize them and result in their psychological and social destabilization.

The Committee notes the Government’s indication that on 16 June 2010 the Federal Council signed the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention). The amendments to the Swiss Penal Code which are needed to implement this Convention include the need to criminalize the use of persons between 16 and 18 years of age for prostitution. A draft report on the implementation and ratification of the Convention is being drawn up by the Federal Office of Justice. The consultation procedure should be opened as soon as possible after the summer break so that the message can be submitted to the Federal Assembly in 2012. The Committee also notes the Government’s statement that in principle it is for the cantons to issue police regulations regarding the locations, hours and practice of prostitution. Some cantons are in the process of, or have already made their legislation more stringent and established penalties for operators of studios and escort services employing young persons between 16 and 18 years of age. However, their approach is not to criminalize clients for the use of persons under 18 years of age for prostitution but rather to impose certain obligations on the operators of studios and escort services. Other cantons have passed legislation on prostitution by providing that any person working as a prostitute must register with the authorities. If the authority receives information that a minor is engaging in prostitution, it is obliged to contact the parent or guardian concerned.

However, the Committee observes that, despite the fact that the Committee has been raising this issue for a number of years, the Swiss Penal Code has still not been amended so as to give full effect to the prohibition laid down in Article 3, clause (b), of the Convention. Therefore, in view of the fact that, under the terms of Article 3(b) of the Convention, the use of a child under 18 years of age for prostitution is considered one of the worst forms of child labour which, under the terms of Article 1, must be prohibited as a matter of urgency, the Committee urges the Government to take the necessary measures to amend the Penal Code in such a way that the use of a child between 16 and 18 years of age for prostitution is prohibited as soon as possible. It again requests the Government to provide information in its next report on any further developments in this regard.

Clause (b). Use, procuring or offering of a child for the production of pornography. The Committee previously noted that sections 135 and 197 of the Penal Code establish penalties for 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 asked the Government to provide information on the application of section 182 so that it can assess whether this provision can be enforced effectively and thus 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 once again notes the Government’s indication that statistics on criminal convictions do not make it possible to differentiate offences in terms of the type of trafficking or the ages of the victims. However, the Committee observes that, in any case, section 182 of the Penal Code provides that any person who engages in trafficking of a human being for sexual exploitation commits a criminal offence. It observes once again that this provision does not prohibit the use of a person under 18 years of age for commercial sexual exploitation, regardless of whether or not this person has been the victim of trafficking. The Committee, therefore, observes that there do not appear to be any provisions that prohibit the use, procuring or offering of a child between 16 and 18 years of age for the production of pornography. The Committee notes the Government’s indication that the amendments to the Swiss Penal Code which are needed to implement the Lanzarote Convention include extending the scope of section 197 of the Penal Code to protect young persons between 16 and 18 years of age from sexual exploitation. The Committee requests the Government to take the necessary measures as matter of urgency to ensure that the use, procuring or offering of all children under 18 years of age for the production of pornography is prohibited in national law.

The Committee is raising other points in a request addressed directly to the Government.