Swiss NGO coalition for the UPR: list of recommendations

8/05/2008

Swiss NGO coalition for the UPR: list of recommendations

1. National Human Rights Institution and national action plans

Background information

Given the federalist structure of Switzerland, a national human rights institution for the promotion and protection of human rights that complies with the Paris Principles is an essential requirement to ensure effective implementation of international human rights obligations. In spite of the recommendations formulated by various UN treaty bodies, Switzerland's commitment to the implementation of the Declaration and the Programme of Action adopted in Vienna in 1993, and of the parliamentary initiatives of the Swiss Federal Parliament, Switzerland has not to date set up a national human rights institution.

The Swiss NGO coalition therefore recommends that the Swiss authorities:

• ensure a coherent implementation of their international human rights obligations at all levels of the federal state;
• set up, in the briefest possible delay, a national human rights institution according to the conditions set forth in the Paris principles. It should in particular comply with the requirement of independence and have as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence;
• elaborate national action plans aimed at guaranteeing effective implementation of the ratified Conventions.

2. Economic, Social and Cultural Rights

The Swiss NGO Coalition recommends that the Swiss authorities:

• fully implement all the dimensions of their obligations under the International Covenant on Economic, Social and Cultural Rights, including their relevant justiciability, and ratify the relevant instruments in this field;
• maintain and intensify their international contribution towards the elimination of poverty and social inequality, as well as their support and assistance to other States in fulfillment of their human rights obligations.

3. Discrimination issues

Background information

Switzerland has no generally binding normative framework against discrimination enshrined in Swiss legislation. In addition, Switzerland also maintains its reservation to article 26 of the International Covenant on Civil and Political Rights, thereby limiting the scope of the general principle of the prohibition of discrimination to those rights ensured by the Covenant. Neither is Switzerland party to the Optional Protocol to the International Covenant on Civil and Political Rights, which provides for the possibility for victims to initiate an individual complaint procedure. Finally, Switzerland maintains its reservations to articles 2.1.a4 and 45 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)6.

The Swiss NGO coalition recommends that the Swiss authorities:

• introduce generally binding legislation at the federal level to prevent all types of discrimination, in particular racial, gender and sexually based discrimination.
• consider withdrawing their reservations to ICERD and to ICCPR and the Optional Protocol to ICCPR;
• strengthen their efforts to restrict any outbreaks of racism and xenophobia as recommended by ICERD and take appropriate measures to fight racial discrimination at all levels of the state.

3a. Gender-based discrimination

The Swiss NGO coalition recommends that the Swiss authorities:

• take appropriate measures in order to prevent migrant women, who are victims of sexual and domestic violence and/or trafficking, from being at risk of deportation when they report acts of violence;
• should give more emphasis to combating the root causes of discrimination, specifically those of foreign women, through the elimination of legal and structural obstacles to equal rights.

3b. Discrimination against sexual minorities

The Swiss NGO coalition recommends that the Swiss authorities:

• create the necessary legal framework in order to protect the fundamental rights of transsexual persons;
• accept the Yogyakarta Principles and apply them at the national and international level.

4. Migration and Asylum

Background information

The examination of requests for asylum is subject to especially severe conditions that in many cases harm the otherwise fair character of the procedure. This applies in particular to the possibility of not proceeding to an in-depth examination of requests for asylum submitted by seekers without identity papers. Indeed, the 2006 Law on Asylum denies access to asylum procedures for asylum seekers who do not produce valid travel and identification documents upon arrival (within 48 hours, unless they can produce a plausible reason). The practice of the authorities in this respect does not ensure respect of the Convention Relating to the Status of Refugees. The Law on Asylum requires that appeals be filed within five days of the first-instance denial of an asylum claim (décision de non-entrée en matière). In those cases of non-entry decisions, the social benefits of asylum seekers are being curtailed significantly.

Different forms of administrative detention can be applied in view of the very wide range of grounds that exist for having foreigners deported. Periods of detention can amount to up to two years, which is a serious contradiction to the principle of proportionality (The Foreign National Act). Even minors can be detained for periods of up to one year within the framework of constraining measures.

Although the Federal law regulating the use of force by police during deportations and during the transport of detainees ordered by a Federal authority bans all restraint methods which restrict breathing as well as the use of irritant or incapacitating sprays, it authorizes among others the use of electro-shock instruments, and does not make any provision for independent monitors to be present during the deportation.

The Swiss Coalition of NGOs recommends that the Swiss authorities:

• Abide by their international human rights obligations, in particular the Convention relating to the Status of Refugees, the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child, in the framework of its asylum policy, in particular:
• Ensure compliance with the requirements of article 3 of the Convention against Torture, including the proper test of proof, or the risk of torture, when determining whether to expel, return or extradite a person to another State;
• Ensure compliance with the requirements of article 37 of the Child Rights Convention, in particular the fact that detention measures should only be used as measures of last resort and for the shortest period of time;
• Ensure that asylum seekers are granted full respect of their right to a fair hearing, to an effective remedy and to social and economic rights, notably decent living and housing conditions during all procedures established by the revised law on asylum;
• Diminish the length of administrative detention with regard to the principle of proportionality.

5. Optional Protocol to the Convention Against Torture and National Prevention Mechanism

Background information

The draft law transmitted to Parliament on 4 December 2006 proposes the creation of a single national body under existing federal authority called the National Commission for the Prevention of Torture. The Commission will be composed of 12 members from different professional backgrounds appointed by the Federal Council upon proposals by the Federal Office of Justice and the Department of Foreign Affairs.

The main concerns deal with lack of financial resources of the Commission. Although, the project presented to Parliament now foresees per Diems for the members of the Commission (on the basis of 300 CHF/day; 20 days' work/year for each member), the Government maintains its refusal to establish a permanent Secretariat and offices for the Commission.

The Swiss NGO coalition recommends that the Swiss authorities:

• take all the necessary measures to ratify the OPCAT in the near future and grant the NPM "all the necessary resources for the functioning of the national preventive mechanisms" as foreseen by article 18 of the OPCAT.

6. Human Rights Education

Background information

With respect to human rights education, Switzerland states in its report that human rights are already being taught in various disciplines and that human rights education will be systematically mainstreamed in all schooling programs (para. 77).

The NGO coalition would like to learn more about these new programs, in particular:

• how and at which level human rights will be incorporated?
• to what extent human rights education will further be mainstreamed into training programs for public servants such as police officers, prison guards and all other relevant public functions?

The Swiss NGO coalition therefore recommends that the Swiss authorities:

• fully and officially incorporate human rights education into the school curriculum at primary, secondary and tertiary level, and into the training programs for public officials such as police officers, prison guards and all other relevant public functions.