Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - Suiza (Ratificación : 2000)

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