禁止酷刑委员会审议瑞士的报告（部分翻译）

2015年8月4日

禁止酷刑委员会今日结束审议瑞士关于落实《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》情况的第七次定期报告。

联邦司法部刑法办公室的副主任伯尔纳多•施代德曼（Bernardo Stadelmann）强调称，瑞士对所有形式的酷刑和虐待都保持零容忍且愿意在国际层面不遗余力地打击酷刑和虐待。在国家层面，2011年开始活动的瑞士人权能力资质中心推出了是大量对覆盖《禁止酷刑公约》有帮助的不同相关领域的出版物的源头，它的运营时间已被延长，直到将至设立国家人权机构为止。关于寻求庇护者的待遇，联邦委员会正在修订庇护法，旨在加速庇护进程并确保对所有寻求庇护者使用同样的程序。

在与瑞士代表团的对话中，委员会专家呼吁瑞士根据公约第一条解决法律中与酷刑的定义和邢罪化刑罪化相关的缺陷。监狱过度拥挤仍是一个问题，特别是在日内瓦的沙多隆监狱（Champ-Dollon prison），专家表示并询问了改善这一状况的措施。他们还询问了监狱以及拘留场所的保健和医疗服务。还提到了无人陪伴的未成年寻求庇护者、厄立特里亚寻求庇护者以及监禁的使用问题。专家对州与州之间落实公约的情况不同执行公约的差异表示关切。委员会促请瑞士通过切实落实条款来更轻松地解决暴力侵害妇女问题。专家询问了对酷刑的投诉机制、警察暴力以及警方和监狱工作人员的暴力和滥用武力的情况，他们还对案例法在返回和驱回案件中采用更为严苛的方针的趋势、对个人的强迫遣返以及在外交保证的基础上的引渡问题表示关切。

施代德曼先生在总结发言中重申，瑞士对任何酷刑或虐待采取零容忍，并强调了其对国家预防酷刑委员会的运作运营的重视。

委员会主席克劳迪奥•格鲁斯曼（Claudio Grossman）在总结发言中感谢了代表团，他表示，委员会了解瑞士的法律秩序以及国际法的至上性，但重要的是要牢记它们并非是自动生效的。

瑞士代表团包括来自联邦司法警察部（Federal Department of Justice and Police）、联邦司法办公室（Federal Office of Justice）、联邦移民秘书处局（State Secretariat for Migration）、联邦外交事务部以及日内瓦州立警局的代表。

委员会将于8月12日（周三）下午3点举行公开会议，讨论对公约第19条和报复案例的跟进情况。

报告

瑞士的第七次定期报告可在此查看：CAT/C/CHE/Q/7.

Presentation of the report

BERNARDO STADELMANN, Vice-Director of the Federal Office of Justice, introducing the report, emphasized that Switzerland had zero tolerance to all forms of torture and ill treatment. Switzerland had actively participated in the preparation of the United Nations Office on Drugs and Crime handbook on the prevention of the use of violence by police and security agents, and was engaged in the revision of the United Nations minimum standards on treatment of detainees, the so called “Mandela Rules”, which were adopted in May 2015. The leading role Switzerland played in the preparation of those documents demonstrated its willingness to engage tirelessly in the fight against torture and ill-treatment at the international level.

At the national level, the Swiss Centre for Competence for Human Rights, established in 2011, had been the source of numerous publications covering various areas of interest to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Those included the Manual of Swiss Migration Law from December 2014, which presented the basics of the European Union, the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union and explications of Swiss law on foreigners and asylum. A study entitled Legal Protection and Deprivation of Liberty listed the possibilities of appeal for persons deprived of liberty; and a study entitled Legal Protection against Abuse by the Police contained a complete inventory of state mechanisms to support people who claimed to be victims of abuse by the police. The Federal Council decided in July 2015 to extend the operation of the Swiss Centre for Competence for Human Rights until the Swiss National Human Rights Institution was established.

In March 2014, the Swiss Parliament adopted a law on the return of foreign criminals which limited the automatic expulsion for crimes to five to 15 years. It also allowed a judge to waive deportation in cases that would put a foreigner in a serious personal situation and that public interest in the expulsion did not prevail over the interests of foreigner. It was important to note that the Federal Court had reaffirmed the principle of primacy of international law in a decision concerning the return of a criminal foreigner, said Mr. Stadelmann. With regard to asylum, the Federal Council had adopted a message to modify the Asylum Law with the aim of speeding up the asylum process and guaranteeing equitable procedure to all asylum seekers. The defence of interests of unaccompanied minors was ensured for the duration of procedures by a legal representative, acting as a trusted person.

Concerning the issue of removals of people who had been granted refugee status by Italy, back to that country, Mr. Stadelmann said the European Court of Human Rights had ruled in November 2014 that the Swiss authorities would violate Article 3 of the European Convention of Human Rights if they sent such persons back to Italy without first obtaining from the Italian authorities an individual guarantee for the appropriate support for children and the preservation of the family unit. Following that ruling the Italian authorities, at the request of Switzerland, agreed to provide the necessary guarantees in every case where a family would be referred back in Italy. Italy had also assured Switzerland that family unity would be preserved and that the applicants would be accommodated in suitable premises, he concluded.

Questions by the Country Rapporteurs

ABDOULAYE GAYE, Committee Expert acting as Co-Country Rapporteur for the report of Switzerland, expressed concern about the absence of the criminalization of torture and ill and degrading treatment. He stressed the importance of introducing into the Swiss criminal law a specific definition of torture, in accordance with Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the provision of specific sanctions for the crime. The interpretation of a range of issues covered by the Convention was left to the competent authorities, and that prevented uniform application of the provisions of the Convention throughout the country. The National Commission for the Prevention of Torture felt that there were real gaps in the Swiss law that needed to be filled with clear definition and criminalization of torture in the law. The Committee was also concerned about the differences in the implementation of the Convention between Cantons and asked whether the establishment of a national human rights institution would help in addressing the issue.

Mr. Gaye asked the delegation to update the Committee on the proceedings in the Canton of Vaud concerning the illegal use of restraints in 2012 and 2013, and about more than 20 complaints lodged against the police for indiscriminate use of force in the Canton of Geneva. The sentences for inhuman treatment were too light and did not serve as a deterrent, he said. He called on Switzerland to reconsider and revise its practice in the matter to expand its list of infractions that were automatically prosecuted. He also called on Switzerland to revise its provisions on violence against women and make their practical implementation easier. He also said the authorities should ensure border police received additional training on recognizing victims of trafficking in persons. Concerning the migrants and asylum seekers, Mr. Gaye asked the delegation to explain the system of detention of migrants and to comment on the limitations of freedom of movement in centres for registration and procedure.

On the issue of non-refoulement, Mr. Gaye said that the whole process boiled down to how situations were assessed. He noted that mistakes had been made in the past, for example in case of two Tamil persons who had been returned to Sri Lanka and were consequently tortured. There were children (minor) asylum seekers who had simply disappeared from institutions and not properly investigated.

SAPANA PRADHAN-MALLA, Committee Expert acting as Co-Country Rapporteur for the report of Switzerland, regretted that the Istanbul Protocol was widely unknown in Switzerland. She asked about plans to introduce the Istanbul Protocol in all training courses, as well as plans to make the National Commission for Prevention of Torture sufficiently independent and competent with adequate resources.

Overcrowding in prisons remained an issue in Switzerland, particularly in Geneva Champ-Dollon prison, said Ms. Prahdan-Malla. She asked for information an update on plans to increase prison capacity and the number of official places of detention, as well as the latest statistics for the number of pre-trial detainees and detainees in administrative detention under the immigration law. What was the reason for overcrowding, she enquired, wondering if it was the result of more severe penalties, or the limited use of alternate sentences handed down to foreigners without domicile. The use of alternative and non-custodial sentences remained limited, she commented.

Different cantons applied different standards, said Ms. Prahdan-Malla, and the delegation was asked how Switzerland harmonized laws and policies related to prevention, protection and prosecution of torture, and the agency in charge of harmonization. There were concerns that the mechanism to receive complaints of torture was not fully independent, because it did not investigate complaints against the police promptly, independently, and impartially.

The number of unaccompanied minors seeking asylum was on the increase and in 2014 795 unaccompanied children were registered as seeking asylum in Switzerland. The children were sometimes hosted in same centres as adults, were put in contact with a person of confidence only at a very late stage, and did not have legal representation from the moment of entry into Switzerland, said Ms. Prahdan-Malla. She also asked about reports that cases of unaccompanied children who disappeared from those centres were not investigated. Finally, said Ms. Prahdan-Malla asked why corporal punishment was not specifically prohibited in Switzerland.

Questions by the Committee Experts

A Committee Expert commended Switzerland for their efforts in protecting human rights worldwide. Taking up the issue of administrative detention he raised concern about the procedure and categories of persons subjected to the practice, which also included minors aged 15 to 18 years of age. Were there any unaccompanied minors in administrative detention who were victims of trafficking?

On forcible expulsions, there were reports of armed police wearing hoods, going into prisons and extracting persons who were to be expelled, which was a very distressing image. Some asylum seekers were forcibly injected with sedatives, which might be a criminal act, he said. The Expert also asked about reports that other asylum seekers were shackled, even in front of their children and that in some instances children also wore restraints. Such practices were contrary to human rights and human dignity and Switzerland was placing its state security above the safety of individual, he said.

On police violence, Committee Experts noted the concerns expressed by several non-governmental organizations regarding the lack of assistance by the police in complaints against the police, and reiterated the recommendations to set up independent commissions in all cantons for the reception of complaints filed against the police for excessive use of force, torture and ill treatment.

The standard and provision of health care in prisons and detention centres differed between cantons, and there was no overall oversight of medical conditions in prisons, said an Expert. That situation risked differing standards of prison health care and situations where doctors could overstep ethical guidelines in pursuit of security concerns.

Prosecutions of cases of violence against women and domestic violence were rarely successful and 70 per cent of cases were dropped, said an Expert, asking whether Switzerland had adopted any special measures to ensure that those cases made their way through prosecution and trials and were not dropped. An Expert also asked about the protection of sex workers.

An Expert noted that the highest number of asylum requests was granted to Eritreans; did this mean that Eritrea had some sort of special status in the asylum process?

CLAUDIO GROSSMAN, Chairperson of the Committee, stressed that in the law, torture should be called torture. He wondered whether there were any proposals to revise the law and include a definition of torture in the criminal code. The Chairperson asked the delegation to comment on measures to address the low numbers of prosecution of cases of violence against women and domestic violence, and noted the lack of or very limited statistics available regarding cases of police abuse, complaints against police violence or cases of refoulement.

Response by the Delegation

Responding to the questions and comments made by the Committee Experts, the delegation said there was no discrepancy between the Swiss law and the definition of torture, and added that torture was expressly punished by the Criminal Code, in the context of crimes against humanity and war crimes. Mental torture was also covered by those provisions, and attempts to torture were also severely punished. The sentences were severe and the statute of limitations on those crimes were long. The lack of criminalization of torture did not pose difficulties to bilateral relations of Switzerland with other States and the issuance of diplomatic assurances. The Criminal Procedure Code specifically banned the use certain methods which limited the mental abilities of detainees and any evidence so obtained was inadmissible in court. Any detainee had the right to complain, and had the right to equitable criminal procedure, said a delegate.

Concerning domestic violence, a delegate said it was important to say that severe infractions of the Criminal Code committed in the context of domestic violence had been automatically prosecuted since 2004. The statistical data published in November 2014 provided detailed information on all cases of domestic violence. In June 2015, the Federal Council adopted a lengthy report on violence against children within family, in which it recalled that corporal punishment was not compatible with the well-being of the child. The Federal Council also recalled that child protection authorities and civil judges had a crucial role to play in protection of children, and had all the authority to protect children if their integrity was under threat, including taking away custody or parental authority.

Jurisprudence which gave primacy to international law over domestic law was quite well developed in Switzerland. Life imprisonment was an exceptional sentence in Switzerland, provided for the most serious criminal offences including assassination, kidnapping, war crimes and crimes against humanity. It was handed down by an independent tribunal, could be contested and taken all the way to the European Court of Human Rights. Conditional release was possible after at least 15 years of the sentence had been served.

Complaints against the police could be filed with the Office of the Prosecutor, an independent judicial body, or the police itself. The Office of the Prosecutor decided whether an investigation would be taken, and could hand over the procedure to the Criminal Court.

In the canton of Geneva, and in several other cantons, all criminal complaints against the police were handled by the General Prosecutor. In Geneva, in 2013, a total of 75 criminal procedures against the police were opened, and in 2014 there were 73. The main complaint was allegations of the use of coercion. The Ethic Commissariat was established in Geneva in 2007 to study complaints against use of force by the police and penitentiary personnel. The issue of police violence was no longer taboo, and there was awareness among all law enforcement officials that they had to take all necessary measures to combat police violence.

Prostitution was considered as legal revenue-generating activity as long as it was exercised independently, and sex workers and their clients were protected by article 27 of the Constitution on economic liberties, said a delegate. In Geneva, the Law on Prostitution required all sex workers wishing to operate in Geneva to register with the police.

Concerning medical care in prisons a delegate said that in accordance with the European Prison Rules, the principle of equivalence had been introduced in the medical-ethical guidelines and therefore was practiced in all institutions of deprivation of liberty. Although there was no national level prison health system, all systems were equivalent and professional medical care was indicated in the guidelines of the Swiss Academy of Medical Sciences.

Switzerland recognized the problem in that administrative detainees were not always separated from common law detainees and it was working on creating adequate conditions to allow for such separation.

Responding to the question on refoulement a delegate said that following the arrest in Sri Lanka of the two persons returned there from Switzerland, the country had immediately amended its risk assessment and defined new procedures for the return and repatriation of people to Sri Lanka, based on the conditions in the country and the guidance provided by the United Nations High Commissioner for Refugees.

There was no noted phenomenon of disappearance of unaccompanied minor asylum seekers clarified a delegate. In 2014 there were 795 applications for asylum in Switzerland made by unaccompanied minors, of which after examination and age determination only 44 were treated as minors. Specific efforts and measures were in place to determine whether minor asylum seekers were actually victims of human trafficking. Freedom of movement in centres for asylum seekers was limited and restricted in order to provide structure and security for all, added a delegate.

Concerning the high number of asylum seekers from Eritrea, a delegate said that in Eritrea a refusal to carry out compulsory military service was considered as desertion, and that was the basis upon which Switzerland could grant provisional admission. The level of protection of Eritreans in Switzerland was comparable to European standards. Another reason for the high number of Eritrean arrivals was the significant presence of Eritrean diaspora in the country, she added.

Since the entry into force of the European Directives on Return in 2011, the maximum length of administrative detention had been reduced and was now on average 21 days. It was rarely used against minors, who represented only two per cent of those administratively detained. After the transposition of the Dublin III Regulations, the Federal Law on Foreigners was modified to address the provisions concerning condition and length of administrative detention. Human trafficking and trafficking in persons for purposes of sexual exploitation were severely punished in accordance with the United Nations Convention against Transnational Organized Crime.

The evaluation of the Swiss Centre for Competence for Human Rights, which was created as a pilot project in 2009, aimed to take stock of the progress made and to create a decision making basis for the creation of a permanent national human rights institution. The evaluation found that the quality of the work carried out was very good, but that the Centre had been unable to carry out all the activities it had been tasked with because it was not given the mandate and the formal independence to take initiative. The Federal Council decided in July 2015 to extend the work of the Centre for another five years and would decide by the end of 2015 whether to create and under which form, a permanent national human rights institution.

Further Questions by the Committee Experts

ABDOULAYE GAYE, Committee Expert acting as Co-Country Rapporteur for the report of Switzerland, took note of Switzerland’s unchanged position concerning the definition of torture in the domestic law and its criminalization, and asked the delegation to provide information about specific cases concerning police abuse, as previously requested. The trend in case to law towards a more strict approach to return and often automatic expulsion was a concern to the Committee. The Committee noted that Switzerland had currently suspended expulsions to Eritrea, but it had not received answers about expulsions to Somalia. It was also concerned about other cases of forced repatriation of individuals and cases of extradition on the basis of diplomatic assurances.

SAPANA PRADHAN-MALLA, Committee Expert acting as Co-Country Rapporteur for the report of Switzerland, noted the delegation’s response concerning residence permits for women victims of domestic violence and stressed that the fears of fraudulent marriages should not restrict the protection awarded by residency permits. Prison overcrowding was a concern and the delegation was asked to provide detailed statistics and data on prisons and the plans to increase capacity of places of deprivation of liberty and the capacity of detention centres for migrants and asylum seekers.

A Committee Expert returned to the issue of police violence, which he said was a concern to the Committee, noting that investigation and prosecution procedures were very slow. There was a need for an oversight authority for the functioning of the police, she said. Switzerland deemed its forced expulsion procedure a success, but at the same time civil society condemned some of the practices used by the authorities, including sedative injections and the use of handcuffs, including on minors, an Expert commented.

There were a number of health problems related to imprisonment, including suicide, withdrawal symptom, violence and others, said an Expert. There was a need for clear and robust medical-ethical guidance and decisions. A well-structured and coherent system must be in place to address the specific problems, not the health problems presented by the general population. Would the process of improving the provision of health care in prisons include suggestions from the National Commission for the Prevention of Torture, he wondered.

CLAUDIO GROSSMAN, Chairperson of the Committee, took note of Switzerland’s position that it had satisfied the provisions of the Convention regarding the definition of torture, and remarked that the word “torture” in terms of Article 1 was absent from the domestic legal order. What incentives were in place for victims of trafficking to denounce the fact that they were victims, and to alleviate their fear of losing a stay permit or fears of reprisals by criminal gangs, he asked.

Response by the Delegation

In terms of the definition of torture in domestic law, a delegate recalled that international treaties, including those specifically mentioning torture, were directly applicable in the Swiss law; further, there was a formal ban on torture in the Constitution. Additionally, Switzerland had implemented the Rome Statute which explicitly mentioned torture in the definition of war crimes and crimes against humanity. The implementation of treaty obligations affected all levels in Switzerland, from municipal to federal, and all participated in the preparation of reports and in coordination activities. The Council of Europe’s Istanbul Convention on preventing and combating violence against women and domestic violence had also been signed by Switzerland and the ratification process was underway, noted a delegate.

In 2014, in the canton of Geneva the Office of the Prosecutor dealt with 75 criminal proceedings involving complaints of police violence, said a delegate, adding that it was incorrect to say that no police officer had been convicted for the use of force and bodily harm.

The recognition rate of asylum seekers wad dependent on their countries of origin, and it must be said that in many countries, individuals were not being prosecuted as defined by Geneva Conventions, as was the case with arrivals in 2012 from Tunisia, during the Arab Spring, added a delegate.

Responding to questions about extradition procedures a delegate said that a risk assessment for torture was always carried out prior to extradition, and if a risk was found, the extradition was stopped. If the findings were inconclusive, or it could not be proven that the individual in question would be subjected to torture, then diplomatic assurances were requested.

Concluding Remarks

CLAUDIO GROSSMAN, Chairperson of the Committee, thanked the delegation for the report and dialogue. He said the Committee was aware of the legal order in Switzerland and the supremacy of the international law, but it was important to keep in mind that they were not self-executing.

BERNARDO STADELMANN, Vice-Director of the Federal Office of Justice, reiterated Switzerland’s zero tolerance towards any act of torture or mistreatment. He said the Committee had pinpointed a number of challenges, which Switzerland was aware of. Mr. Stadelmann underscored the importance Switzerland attached to the operation of the National Commission for the Prevention of Torture, which helped to very quickly identify gaps in the implementation of the Convention and enabled cantons to take action.

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