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

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 3 of the Convention. Worst forms of child labour. Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. In its previous comments, the Committee noted that the Penal Code punishes anyone who commits a sexual act with a child under 16 years of age (section 187) or who induces a minor (a person under 18 years of age) to engage in prostitution (section 195). Since 2003, the Committee had been noting that, although section 195 covers the prohibition set out in the Convention, the Penal Code is not in conformity with the Convention in that section 187 only punishes an act of a sexual nature committed on a person under 16 years of age. It 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 recognizes that a young person 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 fact of engaging in a sexual act with a young person under 18 years of age in exchange for remuneration, with or without consent, constitutes the use of a child for prostitution. The Committee further noted that section 197 of the Penal Code punishes the use, procuring or offering of a child for the production of pornography. However, it noted that the term “child” used in section 197(3) of the Penal Code, which prohibits the production of pornography involving children, only covers persons under 16 years of age. In this respect, the Government indicated that, following the signature in June 2010 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (the Lanzarote Convention), amendments would be needed to the Penal Code. These amendments would include the criminalization of the use of young persons between the ages of 16 and 18 years for prostitution and the extension of the scope of application of section 197 to young persons between the ages of 16 and 18. It indicated that a draft report on the implementation and ratification of the Convention was under preparation by the Federal Office of Justice and that the consultation procedure would be launched as soon as possible so that a message could be submitted to the Federal Chambers in 2012. The Committee also noted that the Federal Order of 27 September 2013 to approve and implement the Lanzarote Convention provides for the revision of certain provisions of the Penal Code and expressed the firm hope that these amendments would be implemented shortly.

The Committee notes with satisfaction the Government’s indication in its report that, in the context of the implementation of the Lanzarote Convention, the relevant provisions of the Penal Code have been revised, thereby bringing the legislation into conformity with the Convention. The amendments, which entered into force on 1 July 2014, relate to section 195 of the Penal Code, which now prohibits the incitement of any minor (a person under 18 years of age) to engage in prostitution, and section 197(3) which now prohibits the procuring of any minor for the production of pornography. The Committee also notes the statistics provided by the Government on this subject. In 2014, there were two victims of incitement to prostitution aged under 18 years, and in 2015, there were three such victims. The Committee also notes that the number of rulings issued under section 197 of the Penal Code concerning minors was 318 in 2014 and 216 in 2015. The Committee requests the Government to continue providing information on the effect given in practice to sections 195 and 197(3) of the Penal Code, with an indication of the number of investigations conducted, prosecutions, convictions and penalties applied.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 3 of the Convention. Worst forms of child labour. Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. In its previous comments, the Committee noted that the Penal Code punishes anyone who commits a sexual act with a child under 16 years of age (section 187) or who induces a young person (that is, a person under the age of 18 years) to engage in prostitution (section 195). The Committee noted that although section 195 covers the prohibition set out in the Convention, the Penal Code is inconsistent with the Convention in that section 187 punishes the commission of a sexual act only with a person under the age of 16 years. 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 recognizes that a child 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 to engage in a sexual act with a child under 18 years of age for remuneration amounts to the use of a child for prostitution, whether or not the child consents. The Committee further noted that section 197 of the Penal Code punishes the use, procuring or offering of a child for the production of pornography. It noted, however, that the term “child” used in section 197(3) of the Penal Code, which prohibits the production of pornography involving children, covers only persons under 16 years of age. The Government indicated in this connection that following the signing in June 2010 of the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse (Lanzarote Convention), amendments were needed to the Penal Code. Such amendments include the criminalization of the use of persons between 16 and 18 years of age for prostitution and the extension of the scope of section 197 to young people aged from 16 to 18 years. It indicated that a draft report on the implementation and ratification of the Convention was being prepared at the Federal Office of Justice and that a consultation procedure was to be opened as soon as possible so that a message could be submitted to the Federal Chambers in 2012.

The Committee takes due note of the Federal Order of 27 September 2013 to approve and implement the Lanzarote Convention (FF 2013 6621). It notes with interest that the Order provides for the revision of certain provisions of the Penal Code, with a view to punishing anyone who commits a sexual act with a person under 18 years of age (new section 196) and to extend the coverage of section 197 to young persons aged from 16 to 18 years. It notes that the deadline for a referendum to oppose implementation of the Order and to submit it to a plebiscite is 16 January 2014. The Committee expresses the firm hope that the amendments to the Penal Code on the use, procuring or offering of a child under 18 years of age for prostitution, the production of pornography or pornographic performances (sections 196–197), as provided in the Order of 27 September 2013, will be implemented shortly. It requests the Government to continue to provide information on all progress made in this regard.

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

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 had been amended to prohibit and penalize any person who engages in the trafficking of human beings 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 deemed equivalent 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 asked the Government to provide information on the application of section 182 of the Penal Code in practice.

The Committee notes the Government’s indication that section 182 of the Penal Code does not distinguish between the recognized forms of trafficking of human beings. Nor do the statistics on criminal convictions allow any disaggregation according to the age of the victims, even though the trafficking of minors constitutes an aggravated form of the offence under section 182(2) of the Penal Code. The Government indicates that the creation of differentiated codes for police statistics might be proposed to the cantons in the future. In the meantime, the only other statistical sources in this field are those relating to assistance for victims and criminal convictions, which are more limited. All the same, the Government indicates that the statistics on criminal convictions show eight convictions for human trafficking in 2007, eight in 2008 and nine in 2009. The Government also indicates that new police statistics on criminal offences show that 50 offences were recorded under section 182 of the Penal Code in 2009. Of these, 11 presumed victims were under 18 years of age at the time of the offence. In 2010, the corresponding group of statistics indicates 52 offences and 13 victims presumed to be under 18 years of age. The Committee also notes the Government’s reference to the UNICEF report of 2007 on the trafficking of children in Switzerland, which states that available information suggests that the trafficking of children is limited to isolated cases, and to the Terre des Hommes report of 2010, which indicates that the main issue is the exploitation of minors for use in burglaries or begging.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee previously noted that section 24 of the Penal Code provides that any person who wilfully persuades 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 persuade 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 – regardless of age – to commit offences. It asked the Government to provide information on the application in practice of section 24 of the Penal Code, including statistics on the number of persons prosecuted under this provision for having “persuaded” a person under 18 years of age to commit illegal acts.

The Committee notes the Government’s indication that the statistics on criminal convictions under section 24 of the Penal Code do not allow any link to be established between the conviction of the instigator and that of the actual perpetrator of the offence, namely the minor concerned. It is therefore impossible to know how many persons have “persuaded” minors to commit offences. Moreover, the Committee notes the Government’s indication that, in the Swiss context, the question of the use, procuring or offering of children for illicit activities mainly concerns minors of Roma origin used for burglaries or begging. The Government indicates, however, that the investigation procedure faces difficulties when it comes to investigating within the communities, that convictions are rare and for that reason no data exist for Switzerland. However, the Committee notes that a working group was set up in 2010 to raise awareness among the cantonal and municipal authorities as regards children who engage in begging, to establish standards for instituting criminal proceedings against the perpetrators and to create mechanisms for cooperation at national level for the protection of minors and the regulation of procedures for taking care of children apprehended for begging. Finally, the Committee notes that the Swiss Coordination Unit against the Trafficking of Persons and Smuggling of Migrants held a meeting in February 2011 with the foreigners’ department of the Berne city police, the municipal police of Zurich and the Federal Criminal Police (PJF). The purpose of the meeting was to achieve an overview of police reports established in Geneva, Berne and Zurich and to seek solutions to the problems faced in terms of investigation procedures.

Article 5. Monitoring mechanisms. Departments dealing with the trafficking of persons, paedophilia and pornography. The Committee notes the Government’s indication that, in 2007, departments dealing with the trafficking of persons, paedophilia and pornography were established within the PJF, resulting in improvements in the preparation of cases, coordination between cantons, and the progress of interventions, evaluations and media work. The Committee asked the Government to provide information on the action taken by these departments against both the trafficking of children and the use of children for the production of pornography.

The Committee notes the Government’s indication that the PJF, inter alia, discharges the role of a central office. One of the two departments established is responsible for action against the trafficking of persons and smuggling of migrants, the other is responsible for action against paedophilia and illegal pornography. They support the criminal prosecution authorities in Switzerland and abroad, coordinate investigation procedures and ensure the exchange of information between the criminal police and the cantons, the criminal prosecution authorities of other States, Interpol and Europol. In 2010, the department responsible for action against the trafficking of persons handled 259 cases involving the coordination of investigations concerning sexual exploitation and six cases involving the exploitation of labour. Moreover, the Committee notes the Government’s indication that the National Coordination Unit against Internet Crime (SCOCI), attached to the PJF since 2010, works in close cooperation with the departments. It constitutes the central point of contact for persons wishing to report any suspect websites, and the SCOCI forwards the information received to the competent criminal prosecution authorities in Switzerland and abroad.

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

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.

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

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.

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

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. In this respect, it noted that, in its report and message of 20 September 1999, the Federal Council 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 (that is 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 of the procuring of a child under 18 years of age for prostitution, in accordance with the Convention. However, it observed that, with regard to the use of a child under 18 years of age for prostitution, Swiss penal law is not fully in conformity with the Convention because 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. Indeed, the freedom of sexual activity accorded to a young person by the law cannot include the freedom to engage in prostitution without being in violation of one of the objectives of the Convention, namely the prohibition of the worst forms of child labour.

With regard to the consent of a young person between the ages of 16 and 18 years of age, the Committee referred to the preparatory work for the adoption of the Convention (ILC, 86th Session, 1998, Report VI(2), pp. 52–53) in which the Office indicated that “this provision [Article 3(b )of the Convention] would still prohibit the use, engagement or offering of a person under 18 for prostitution. A child’s consent to a sexual act would not preclude it from the prohibition”. The Committee also referred to the message of the Federal Council of 11 March 2005 in which it indicated that “it should be noted that, in the view of the working group, the agreement of the child is not sufficient to exempt prostitution from any penalty” (see p. 2656 of the message). The Committee therefore considered that, when adopting Convention No. 182, the ILO also intended that the consent of a young person would not affect the prohibition in Article 3(b).

Moreover, with regard to the meaning of the expression “use of a child for prostitution” the Committee referred to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000. Under the terms of Article 2(b) of the Protocol, child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration. Accordingly, the Committee considered that, in the context of Convention No. 182, the use of a child for prostitution applies to a person, in this case a client, who engages in a sexual act with a child under 18 years of age for remuneration or any other form of consideration.

The Committee therefore considered that, although 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. Accordingly, section 195 of the Penal Code does not give full effect to the prohibition set out in Article 3(b) of the Convention.

The Committee notes 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 is currently under discussion. This question will be examined in the context of the possible adhesion of Switzerland to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201) following which, and in the light of the responses received by the cantons, the Federal Council will decide on the action to be taken. The Government adds that parliamentary interventions have already been submitted on the subject, in which the Federal Council considered that the prostitution of young persons under 18 years of age may be prejudicial to their sexual development, traumatize them and result in their psychological and social destabilization. The Federal Council, however, noted that it would not be wise to anticipate the results obtained in the cantons from this hearing. The Committee reminds the Government, however, that, under the terms of Article 1, each Member which ratifies the Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee therefore urges the Government to take the necessary measures to ensure that the discussions on the culpability of persons having recourse to the prostitution of young persons between the ages of 16 and 18 years results in the adoption of legal provisions prohibiting and penalizing the use of children under 18 years of age for prostitution as soon as possible. It requests the Government to provide information in its next report on any developments in this respect.

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

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

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.

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

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 point.

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. In this respect, it noted that in its report and Message of 20 September 1999, the Federal Council 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. According to the Federal Council, in so far as persons of between 16 and 18 years of age are not used or procured for 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 any person who induces a young person (that is a person who has not yet reached the age of 18 years) to engage in prostitution. In this respect, it noted that, in its report and Message of 20 September 1999, the Federal Council specifies that to induce to engage in prostitution means to initiate and cause a person to engage in prostitution. According to the Federal Council, the terms use and procuring for prostitution within the meaning of Convention No. 182 are covered by the terms induce into prostitution used in national law. They all have the connotation of constraint.

In view of the above, the Committee considers that section 195 of the Penal Code covers the prohibition of the procuring of a child under 18 years of age for prostitution, in accordance with the Convention. However, it notes that Swiss penal law is not fully in conformity with the Convention in relation to the use of a child under 18 years of age for prostitution because 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 emphasizes that it is necessary to make a distinction between the age of sexual consent and freedom to engage in prostitution. Indeed, the freedom of sexual activity accorded to a young person by the law does not include the freedom to engage in prostitution without being in violation of one of the objectives of the Convention, namely the prohibition of the worst forms of child labour. The Committee further observes that there are two issues that need to be considered in response to the arguments advanced by the Government. The first is whether a young person’s participation in a worst form of child labour (in this case the participation in prostitution) with that person’s consent constitutes conduct that falls outside the scope of the Convention. The second is the meaning of use of a child for prostitution.

With regard to the consent of a young person between the ages of 16 and 18 years, the Committee refers to the preparatory work for Convention No. 182 (ILC, 86th Session, 1998, Report VI(2), pages 52–53). In reply to comments made by certain countries concerning the problems that might arise if prostitution is legal below the age of 18 years or the age of sexual consent is less than 18 years, the Office indicated that this “provision (Article 3(b) of the Convention) would still prohibit the use, engagement or offering of a person under 18 for prostitution. A child’s consent to a sexual act would not preclude it from the prohibition”. The Committee also refers to the Message of the Federal Council of 11 March 2005 in which the Federal Council itself records that “it should be noted that, in the view of the working group, the agreement of the child is not sufficient to exempt prostitution from any penalty” (see page 2656 of the Message). The Committee therefore considers that, when adopting Convention No. 182, the ILO also intended that the consent of a young person would not affect the prohibition in Article 3(b).

Moreover, with regard to the meaning of the expression use of a child for prostitution, as it is not defined by Article 3(b) of Convention No. 182, reference may be made to the relevant international instruments (ILC, 86th Session, 1998, Report VI(2), page 52). In this respect, the Committee refers to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000. Under the terms of Article 2(b) of the Protocol, child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration. Accordingly, the Committee considers that, in the context of Convention No. 182, the use of a child for prostitution applies to a person, in this case a client, who engages in a sexual act with a child under 18 years of age for remuneration or any other form of consideration.

In the light of the above, although 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 Committee considers that the age of consent does not affect the obligations to prohibit this worst form of child labour. It also considers that the act of engaging in a sexual activity with a child under 18 years for reward constitutes “use” of a child for prostitution whether or not the child consents. Accordingly, section 195 of the Penal Code does not fully give effect to the prohibition contemplated in Article 3(b) of the Convention. Consequently, since under Article 3(b) of the Convention the use of a child under 18 years of age for prostitution is considered to be one of the worst forms of child labour and, under the terms of Article 1 this worst form of child labour shall be prohibited as a matter of urgency, the Committee urges the Government to take the necessary measures to also prohibit and criminalize the use of a child aged between 16 and 18 years for prostitution, thereby specifying that the sexual freedom granted to children as from 16 years of age by the penal legislation does not include the freedom to prostitute themselves.

The Committee is also addressing a request directly to the Government concerning other points.

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

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.

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

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.