CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second periodic reports of States parties due in 1992
* The initial report submitted by the Government of Switzerland
is contained in document CAT/C/5/Add.17; for its consideration
by the Committee, see documents CAT/C/SR.28 and 29 and the Official
Records of the General Assembly, forty-fifth session, Supplement
No. 45 (A/45/44), paras. 87-114.
On 2 December 1986, Switzerland ratified the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Convention entered into force for Switzerland on 26 June
1987. Switzerland submitted its initial report (CAT/C/5/Add.17
- hereafter referred to as the "initial report") on
14 April 1989. This report was considered by the Committee on
15 November 1989 (CAT/C/SR.28 and 29).
The present additional report of Switzerland covers the period
from 1 July 1988 to 30 June 1992.
The European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) made its first visit
to Switzerland from 21 to 29 July 1991. It visited various places
of detention in the Cantons of Berne, Zurich, Vaud and Geneva.
Its report, dated 7 February 1992, was transmitted to the Swiss
authorities on 5 March 1992. The Swiss Government took cognizance
of this report. The federal authorities have questioned the
cantons visited concerning certain observations made by the
CPT. At its session on 14 December 1992, the Federal Council
defined its position on this question and made it publicly known
on 25 January 1993. These two important documents are annexed
to the present report.* They illustrate the determination of
the Confederation to cooperate in a very practical manner with
the CPT with a view to even more effective protection of persons
deprived of liberty against torture and inhuman or degrading
treatment or punishment.
As regards the legal provisions and remedies which in Switzerland
protect the individual against torture and other cruel, inhuman
or degrading treatment or punishment, reference should be made
to paragraphs 1-32 of the initial report, which are still valid,
subject to the further information and details given below.
I. INFORMATION ON NEW MEASURES AND DEVELOPMENTS CONCERNING IMPLEMENTATION
OF THE CONVENTION
During the period under consideration, several petitions were
lodged with the European Commission of Human Rights against
Switzerland for violation of article 3 of the European Convention
on Human Rights. About 10 of them were ruled inadmissible by
the Commission, which did not inform the Swiss Government, which
in turn was not called upon to take a decision. Three were ruled
inadmissible by the Commission after it had taken cognizance
of the views of the Swiss Government. Two further petitions
were ruled admissible and are currently being considered by
For the rest, the information provided in paragraphs 34-37 of
the initial report is still valid.
By way of introduction, reference should be made to paragraphs
38-41 and 43-44 of the initial report.
No decision on extradition by the competent authorities was
rescinded by the Federal Court during the period under consideration.
When extraditions entailing a risk of violation of human rights
have been effected, they have been made subject to a guarantee
by the requesting State that the rights of the person to be
extradited will be respected. In one case, in 1980, the requesting
country did not abide by its undertakings. Since then this country
has never again requested Switzerland to undertake an extradition.
If such a case were to recur, it would be treated with the greatest
circumspection and in all likelihood the request would not be
Swiss policy on asylum is conducted in accordance with the principles
of international customary law and with international conventional
law (see art. 3, European Convention), in conformity with the
Federal Act on Asylum of 5 October 1975. This Act has been amended
by a federal decree which entered into force on 22 June 1990.
Thus, the competence to decide whether to grant or refuse an
application for asylum and whether or not to send back a person
of foreign nationality lies with the federal authorities, while
execution of the decision to send them back is the responsibility
of the cantonal authorities.
The amendments introduced spell out in greater detail the conditions
in which return may not be authorized, namely "when it
is not possible, when it is unlawful or cannot reasonably be
required". The decree establishes equality of treatment
for all aliens ordered to leave Switzerland. It stipulates that
return shall be ordered in the case of persons who cannot be
considered as refugees within the meaning of the 1951 Convention
relating to the Status of Refugees or refugees who can no longer
invoke grounds for non-return (1951 Convention, art. 1, C (5))
and all aliens whose authorization of residence has lapsed and
who have to leave Switzerland, only when execution of the said
decree does not violate the customary principle of non-return
also established in article 33 of the 1951 Convention, article
3 of the European Convention and article 3 of the Convention
When they examine whether return to the country of origin may
be executed, the Swiss authorities also take into consideration
the situation which the alien would encounter in that country.
If it appears that return is possible under international law
but not possible because of humanitarian considerations, the
alien is not sent back and is provisionally admitted into Switzerland.
When an alien lodges his application for asylum at an airport,
the authorities first ascertain whether it is possible to send
him to a safe country where he has already lived or with which
he at least has close links. If this is not possible, he is
sent directly to his country of origin if, after thorough consideration
of his case, it is apparent that, in the opinion of both the
Federal Office for Refugees and UNHCR, he is manifestly not
under threat of persecution in that country.
The 1990 decree also established the authority not to consider
an application for asylum when certain specific conditions are
fulfilled. It should be made clear that every asylum-seeker
is heard by the competent authorities even if his application
meets the legal conditions for non-consideration. He has the
possibility of making known his personal situation and the grounds
for his application. Thus if, following the hearing, there are
strong indications that he will be subject to persecution within
the meaning of the Convention relating to the Status of Refugees,
the European Convention or the Convention against Torture, detailed
consideration is given to the question whether return is admissible,
whether it may reasonably be required and whether it can be
executed. During the hearing, the specific situation in the
State of origin is taken into consideration, particularly in
the case of States where torture is known to be practised. If
return is not possible, the alien is provisionally admitted
into Switzerland. Against the application of this rule, it is
sometimes argued that, at least in some cases, insufficient
consideration is given to the material conditions of return,
particularly because of the shortcomings of the hearing with
regard to possible threats of torture to which the applicant
would be exposed on his return to the country in question. It
is also claimed that insufficient account is taken of the psychological
and language difficulties which may prevent the torture victim
from expressing himself at a first hearing. As has already been
explained, however, the competent authorities take particular
account of these factors when examining an application. The
applicant obviously has the right of appeal against a decision
not to consider his application.
It is possible not to consider an application for asylum when
the applicant's country of origin is considered to be free of
persecution. There again, the applicant is given the opportunity
to express himself and his personal situation will be the subject
of special study. The competent authority will not order the
person concerned to be sent back if he is able to prove or establish
the likelihood that he is threatened in his country of origin
with persecution within the meaning of the Convention relating
to the Status of Refugees or that he is in serious and specific
danger within the meaning of article 3 of the European Convention
or article 3 of the Convention against Torture. The inclusion,
in the list of countries presumed to be free of persecution,
of countries which do not offer sufficient guarantees in this
respect is sometimes criticized. This problem is nevertheless
taken into account, in particular by giving the applicant two
hearings, and the possibility of appealing against a decision
not to consider the case on the basis of insufficient appreciation
of the grounds for the application and thus securing suspension
of execution of the decision. The Federal Commission on Appeals
in Asylum Matters frequently grants such suspensions and also
ascertains whether a State on the list is genuinely free of
It would appear advisable to state that, in accordance with
a decision by the above-mentioned Commission of 22 June 1992
in a case in which it had been decided not to consider the application,
the unsuccessful applicant is sent back only after a period
of not less than 24 hours, in order to enable him to leave the
country freely or to appeal against the decision to the Commission,
which is independent of the administration and whose decision
is final. The brevity of this time-limit, which, it is alleged,
does not allow effective appeals to be lodged, has been criticized.
It should nevertheless be borne in mind that the purpose of
the time-limit is only to enable the applicant to request a
review of the question of the suspensive effect on the application,
and so it is in general sufficient. The duration of the time-limit
is currently being considered by a commission of experts in
the context of the review of the right of asylum. It will thus
probably be changed.
The practice of the Swiss authorities with regard to asylum
endeavours to be in conformity with the principles of the European
Convention on Human Rights and judicial decisions relating thereto
(see those relating to art. 3). After every application for
asylum, the applicant's personal situation is subjected to special
scrutiny. He is sent back to the country of origin only when
it has been impossible to establish that he is in personal and
All the petitions submitted to the European Commission of Human
Rights and ruled inadmissible after the Swiss authorities had
transmitted their observations (see para. 5) concerned persons
who had been the subject of a decision to send them back.
By way of introduction, reference should be made to paragraphs
46-50 of the initial report.
During the period under consideration, several amendments were
made to the Criminal Code and the Military Criminal Code. The
amendments were the outcome of a comprehensive review of the
two codes aimed at adapting them to the existing demands of
The first provisions revised concern offences against life,
the person and the family, and entered into force on 1 January
1990. Among the most important provisions, which may concern
acts of torture or other cruel, inhuman or degrading treatment
or punishment, mention may be made of those governing bodily
harm and endangering the life and health of others.
Thus, the old provision on abandonment of an injured person
has been extended. The new provision establishes a general obligation
to provide assistance and imposes penalties on any person who
fails to assist a person in imminent danger of death or who
prevents a third party from providing such assistance. The elements
constituting an affray have also been expanded and supplemented
by a new provision on assault.
It should also be noted that children and adults in need of
assistance have been given better protection, which takes the
form of ex-officio prosecution for repeated assault and bodily
injury against these persons, and extension of the elements
constituting the offence of supplying children with substances
hazardous to their health. These amendments have rendered superfluous
the previous provisions on ill-treatment and negligence of children,
and overworking of children and subordinates.
The second provisions amended relate to sexual offences. These
are aimed primarily at protecting young people and dependent
persons, and entered into force on 1 October 1992.
Among the provisions of more particular relevance to this report,
we would mention the provisions concerning rape. Following the
introduction of a new definition of rape, any person of the
female sex, whether married or not, may now be the victim of
such an act and not just a woman over the age of 16. Homosexual
rape, which is classified as another act of a sexual nature,
carries the same maximum penalty of 10 years' imprisonment.
The old offences relating to procuring, pimps and incitement
to vice have been merged into a single new offence, namely,
furtherance of prostitution. This new provision provides increased
protection for juveniles and other persons who are kept in a
state of dependence and forced to engage in prostitution against
A judge now has the possibility of imposing a heavier sentence
when punishable acts of a sexual nature have been committed
The Military Criminal Code has also recently undergone revision,
as a result of which all the provisions concerning the death
penalty have been repealed. These amendments entered into force
on 1 September 1992 and so there is now no act punishable by
the death penalty in Swiss law.
At the international level, Switzerland has since 1987 been
a party to Protocol No. 6 to the European Convention on Human
Rights (of 28 April 1983) concerning the Abolition of the Death
Penalty. And on 3 February 1993, the Swiss Government recommended
to Parliament that our country should accede to the Second Optional
Protocol (of 15 December 1989) to the International Covenant
on Civil and Political Rights, aiming at the abolition of the
death penalty. This Covenant, article 7 of which prohibits torture
and cruel, inhuman or degrading treatment or punishment, entered
into force for Switzerland on 18 September 1992, the same day
as the International Covenant on Economic, Social and Cultural
Articles 5 and 6
The information provided by Switzerland in its initial report
is still valid (paras. 52-54).
The following may be added to the information provided by Switzerland
in paragraphs 52-59 of its initial report.
During the period under consideration, several Swiss cantons
amended provisions of their codes of criminal procedure. Generally
speaking, these amendments are aimed at reinforcing the rights
of defence and the rights of persons under pre-trial detention.
Thus, in the Canton of Schwytz the Code of Procedure which entered
into force on 1 February 1989 guarantees increased protection
of the defendant - in particular while being questioned by the
police and in detention - and extends the rights of defence.
In Saint Gallen, the provisions of the Code of Procedure relating
to young offenders were amended in 1989 in order to provide
improved treatment and attention more closely geared to the
young person concerned. In Lucerne, the Code of Procedure which
entered into force on 1 January 1990 improves the rights of
persons detained pending trial and persons serving a sentence
by further restricting the possibilities of illegal acts against
them. In Solothurn, the Code of Procedure of 1990 defines more
restrictively the conditions under which a person may be held
in pre-trial detention, and the duration of such detention.
In the Canton of Thurgau, the Code of Procedure of 5 June 1991
defines unlawful methods of interrogation and spells out the
conditions of detention. In the Canton of Jura, the 1990 Code
of Procedure, which entered into force on 1 January 1993, guarantees,
by introducing adversarial examination, increased protection
for the defendant and provides that such examination may be
suspended only on an exceptional basis. In Zurich, the Code
of Procedure of 1991 reinforces the rights of a person exempt
from criminal responsibility by providing that special measures
or treatment in respect of that person must be ordered by a
court, and not, as was previously the case, by the examining
magistrate when he orders the cessation of proceedings. And
in Valais, the Code of Procedure of 1992 more specifically reinforces
the right of defence at the stage of the preliminary investigation
and preparatory examination.
Other cantons, including Aargau and Berne, are currently in
the process of revising their codes of criminal procedure.
Articles 8 and 9
The information provided by Switzerland in its initial report
is still valid (paras. 60-63).
The information provided by Switzerland in paragraphs 69 and
70 of its initial report should be supplemented by mentioning
(a) the scope in Swiss law of the European Penitentiary Rules,
referred to in the aforesaid paragraph 69, and (b) the new measures
taken by the cantons concerning the training of prison personnel.
The Federal Court, our Supreme Court of Justice, considers that
the European Penitentiary Rules (of 12 February 1987), known
as the "minimum rules", have the same scope as the
recommendations issued by the Council of Europe. Although these
rules are not directly applicable in Swiss law and do not establish
any subjective duty or right, their violation nevertheless constitutes
an infringement of the constitutional rights of citizens or
of an obligation deriving from an international treaty. Considered
as the expression of the common will of the States members of
the Council of Europe, they assist the judicial authorities
in interpreting constitutional rights and the European Convention
on Human Rights. They contain important guidelines relating
to modern prison practice which respects the fundamental principles
of human dignity and the detainee's minimum right to personal
freedom. These standards reflect the policy on criminality of
the States members of the Council of Europe. They are addressed
particularly to the political authorities of the Confederation
and the cantons, which are called upon to incorporate these
recommendations in their legislation - in particular, in their
codes of criminal procedure and prison regulations - and to
ensure their proper implementation.
Concerning the measures taken by the cantons, we are able to
give the following information.
In a circular of 8 February 1990, the Department of Justice
of the Canton of Lucerne drew the attention of the judicial
authorities and prison personnel to the provisions of the Convention
On 30 April 1991, the government of the Canton of Jura issued
a new order on detention establishments, which was supplemented
by regulations dated 24 September 1991. The new order requires
warders to take the courses given by the Swiss Centre for the
Training of Prison Staff.
In the Canton of Zurich, the authorities have set up a consultation
service to provide psychiatric and psychological care for detainees.
Medical personnel, and all other personnel working in prisons,
take the training courses established at the national level.
The Vaudois prison authorities have established, in addition
to the basic training provided at the national level, continuing
training for the personnel of prisons and detention centres
situated in that canton. These establishments are also used
as places for the enforcement of penalties by neighbouring cantons.
The means of review referred to in paragraph 71 of the initial
report are still in force.
However, some cantons have amended a number of regulations concerning
prison establishments, bringing them into line with the new
international standards. Thus, on 16 May 1990, the Canton of
Valais enacted new legislation for the enforcement of the Swiss
Criminal Code establishing a commission for pardons and supervision
of prison establishments. One of its responsibilities is to
visit persons detained in prison establishments in Valais and
detainees who have been tried in Valais and sent to prisons
in other cantons, in order to supervise the performance of their
obligations, respect for their rights and conditions of imprisonment.
Several cantons, notably Jura, Vaud and Saint Gallen, have begun
construction or conversion work on their cantonal and local
prisons. The latter are used as places of pre-trial detention
or for the enforcement of short prison sentences.
A few cantons, in particular Valais and Schwytz, have begun
work on the refurbishment and construction of police stations
in order to bring them into line with the minimum rules of the
Council of Europe.
The information contained in paragraphs 72 and 73 of the initial
report is still valid.
During the period under consideration, the judicial authorities
of some cantons dealt with several complaints concerning alleged
violations of the European Convention on Human Rights. It is
not, however, possible to indicate the number or nature of these
complaints since cantons do not keep statistics on this subject.
We are aware of only a few cases which have concerned the courts.
In most of these cases, proceedings were dismissed. They mostly
related to the enforcement of federal legislation on asylum
and some were the subject of a petition to the Commission of
Human Rights in Strasbourg (see para. 5).
The following should be added to the information provided in
paragraph 74 of the initial report.
As indicated in paragraphs 18-26 above, acts constituting offences
in accordance with the Convention under consideration are punishable
under Swiss law. The various cantonal codes of criminal procedure
enable any person who claims to have been a victim of such an
act to lodge a complaint and also give him the possibility of
bringing criminal indemnification proceedings.
The information provided by Switzerland in its initial report
is still valid (paras. 76-78).
In order to be able to ratify the European Convention on the
Compensation of Victims of Violent Crimes, which Switzerland
signed on 15 May 1990, Parliament on 4 October 1991 adopted
a new Federal Act on Assistance to Victims. This Act entered
into force on 1 January 1993; its chief characteristics are
It places the cantons under an obligation to ensure that private
or public consultation centres are available to victims. These
centres, which are accessible 24 hours a day, are required to
provide - if necessary by making use of the services of outside
personnel - medical, psychological, social, material or legal
assistance, on a single occasion or on a continuing basis, and
information on the assistance itself. The Swiss Confederation
has undertaken to contribute to the financing of the establishment
of such centres and to the training of their personnel.
The Act contains important provisions aimed at protecting the
personality of the victim by prohibiting publication of his
identity and, as far as possible, preventing contact between
the victim and the perpetrator of the offence. Victims also
have the right to be accompanied at hearings and to refuse to
answer questions of a private nature. In addition, victims of
sexual offences have the right to be heard, during the police
investigation, by persons of the same sex as themselves.
The Act further guarantees the victim better information on
his rights and the conduct of proceedings. It accords him certain
rights of action and appeal in cantonal criminal proceedings.
By limiting the possibility -frequently used by the judicial
authorities for criminal matters - to order victims to appear
before the civil courts for the purposes of a decision on civil
claims, the Act enables them to have their civil claims recognized
more easily in the context of the criminal proceedings and thus
to avoid the distressing experience of new judicial proceedings.
When it is impossible for the victims to receive sufficient
compensation from the person who committed the offence or under
an insurance policy, the Act provides for compensation of the
victims by the State.
Apart from the amendments to the cantonal codes of criminal
procedure, the Criminal Code and the Military Criminal Code,
the new Act has, in particular, required the establishment of
consultation centres, and for this reason it has not entered
into force earlier. The European Convention on the Compensation
of Victims of Violent Crimes was ratified on 7 September 1992
and entered into force for Switzerland on the same date as the
Articles 15 and 16
Reference should be made to paragraphs 79-82 of the initial
report which are still valid.
II. ADDITIONAL INFORMATION REQUESTED BY THE COMMITTEE
The Committee did not request any additional information.
III. OTHER MEASURES TAKEN AT THE INTERNATIONAL LEVEL
The 1987 European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment supplements and
reinforces the 1984 Convention against Torture by establishing,
at the regional level, a preventive system for the protection
of persons deprived of liberty, based on visits to places of
detention by an international committee.
Switzerland considers that the 1984 Convention against Torture
could also be reinforced at the global level by machinery similar
to that of the European Convention. For this reason it has for
many years supported the draft optional protocol to the Convention
against Torture (E/CN.4/1991/66). It has provided financial
support for promotion of the draft since 1986 and participated
directly in the drafting of the present text in 1990. In addition,
it has been at the origin of and co-sponsored all the decisions
relating to the draft taken by the Commission on Human Rights,
including the most recent, resolution 1992/43, which established
an open-ended working group to formulate a draft optional protocol.
This draft provides for the establishment of an international
committee of independent experts subordinate to the Committee
against Torture which would be able, at any time, to visit any
place where detainees are being held by a public authority.
Apart from its preventive effect, such a mechanism would lay
the foundations for cooperation between the authorities of the
country visited and the international committee of experts,
and would in that respect act as a confidence-building measure.
The recommendations made by the committee would in principle
be confidential. The idea would be not to hold a country up
to public indignation, but to offer it advisory and technical-assistance
services as part of overall action to combat torture.
The Working Group on the Draft Optional Protocol met for the
first time in October 1992 in Geneva, and the results of that
first session are promising (see E/CN.4/1993/28). We hope that
the Group's work will be completed as soon as possible and that
it will enable the Commission on Human Rights rapidly to adopt
an effective instrument for the prevention of torture. It is
high time to take action, as the numerous measures already taken
by the United Nations in this area are not sufficient: the absolute
prohibition of torture in international law, the 1984 Convention
against Torture, the Special Rapporteur on torture, the relevant
advisory-services programmes and, of course, the Fund for Victims
of Torture do not enable sufficiently effective action to be
taken to combat this scourge.
Switzerland, which actively supports all these measures in political,
diplomatic, legal and financial terms, considers that only concerted
action by the international community against torture at three
levels (prevention, punishment of acts of torture and due compensation
of the victims of these practices) will enable this scourge
to be tackled with any degree of effectiveness.
List of annexes*
Report of the Swiss Federal Council relating to the visit by
the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment.
Position of the Swiss Federal Council on the report of the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, prepared following the visit it made
to Switzerland from 21 to 29 July 1991.
Federal Decree on asylum procedure, which entered into force
on 22 June 1990.
Amendments to the Criminal Code and the Military Code which
entered into force on 1 January 1990.
Amendments to the Criminal Code and the Military Code which
entered into force on 1 October 1992.
Federal Act on Assistance to Victims of Crimes, which entered
into force on 1 January 1993.
documents in French, which have been received from the Swiss
Government, may be consulted in the files of the United Nations
Centre for Human Rights.