Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. 1. Prisoners working for private companies. Further to its previous comments concerning the process of revising the general provisions of the Penal Code, the Committee notes the Bill to amend the provisions of the Penal Code and the Federal Council’s Message of 21 September 1998. The Committee notes in particular section 81(2), which requires the consent of the prisoner for employment by a private employer; section 83(1), under which prisoners received remuneration in relation to the work actually performed; and section 389(1)(e), which provides that after consulting the cantons, the Federal Council may issue provisions relating to the remuneration of prison labour covered by section 83. The Committee notes that, according to the Federal Council’s Message, these implementing provisions should cover matters relating to social insurance (AVS, AI, unemployment insurance).

In reply to its general observation of 1999, the Government states that there are no prisons administered by private companies in Switzerland. Depending on the status of the prisoner and the manner in which the sentence is served (for example, semi-freedom, semi-detention), convicted persons may work in private enterprises. In such cases, they receive a real wage and the same benefits as ordinary workers. Where permitted by their status or type of sentence, convicted persons may work outside the prison under a normal employment contract. The Committee notes in this respect that, according to the Federal Council’s message of 21 September 1998, prisoners who perform external work (section 77(a) of the Bill), work in enterprises which are not part of the prison establishment and in general conclude employment contracts with their employers and their wages are credited to them. The Committee also notes that, according to the Government’s report, the working conditions in workshops inside detention centres are subject to supervision by the health and labour services in the same way as working conditions outside the prison sector.

The Committee notes the provisions of section 389 (4)(b) and (5), under which the Federal Council may, on an experimental basis and for a specific period of time, envisage or authorize delegating the administration of sentences of imprisonment to establishments managed by private entities which satisfy the requirements of the Penal Code with respect to the serving of sentences (sections 74 to 85, 91 and 92). These establishments are placed under the supervision of the cantons and any implementation of these provisions at the cantonal level must have been approved by the Confederation.

The Committee refers to paragraphs 90 to 109 of its General Survey of 1979 on the abolition of forced labour, paragraphs 112 to 125 of its General Report of 1998 respecting prison labour and paragraphs 82 to 146 of its General Report of 2001 respecting the privatization of prisons and prison labour. The Committee indicated in paragraph 116 of its General Report of 1998 that, under Article 2, paragraph 2(c), work or service exacted from any person as a consequence of a conviction in a court of law is exempted from the scope of the Convention only if the two conditions are met, namely: that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. In paragraph 97 of its General Survey of 1979, the Committee stated that, provided the necessary safeguards exist to ensure that the persons concerned offer themselves voluntary without being subjected to pressure or the menace of any penalty, such employment does not fall within the scope of the Convention. In paragraph 91 of its General Report of 2001, the Committee stated that work for private companies could be compatible with Article 2, paragraph 2(c), only where prisoners work in conditions approximating a free employment relationship. This necessarily requires the voluntary consent of the prisoner, as well as further guarantees and safeguards covering the essential elements of an employment relationship. The Committee specified in this respect that, in the absence of an employment contract and outside the scope of the labour law, seems difficult or even impossible, particularly in the prison context, to reconstitute the conditions of a free working relationship (paragraph 130), and that conditions approximating a free labour relation are the most reliable indicator of the voluntariness of labour (paragraph 143).

The Committee requests the Government to note these requirements of the Convention indicated in the General Survey and to take them into account in the revision of its legislation on these matters. It also requests the Government to continue providing information on the progress of this legislative process.

2. Work of general interest. The Committee notes sections 37 to 39 of the Bill to amend the Labour Code, which lay the legal basis for empowering the courts to order, as a principal autonomous penalty, work of general interest in place of a financial sentence of a maximum of 180 days’ fines where this appears more judicious in the specific case. This solution offers an additional possibility to replace short prison sentences of a maximum of six months (equal to 180 days’ fines) and is in full concordance, according to the Federal Council’s Message, with the logic of the new system based on the broadest possible substitution of short prison sentences. Under section 37(1) of the draft Penal Code, offenders cannot be compelled to perform work of general interest against their will. The Message states that the requirement to obtain the consent of the convicted person offers the latter the possibility of choosing between the financial sentence and work of general interest. By refusing work of general interest, the convicted person may compel the court to impose a financial sentence, but not the reverse.

Under section 37(2) of the draft Labour Code, work of general interest is unpaid work carried out for the benefit of social institutions, work of utility to the public or to persons in need. The Committee requests the Government to indicate the arrangements for the implementation of work of general interest for the benefit of persons in need.

3. Deprivation of freedom for purposes of assistance. In its previous direct request, the Committee requested the Government to continue providing information on the research conducted into the application of the legislation relating to the deprivation of freedom for purposes of assistance, as well as on any measures taken to follow up the conclusions of this research. As it has not received any information on this matter, the Committee requests the Government to provide the requested information in its next report.

Article 1, paragraph 1, and Article 2, paragraph 2(a). 4. Civic service. The Committee notes that, following the revision of the Federal Constitution, article 18 of the Federal Constitution of 29 May 1874, which required the law to provide for the organization of civic service, has become article 59 of the Federal Constitution of 18 April 1999, which came into force on 1 January 2000. This new article provides that the law shall envisage a replacement civic service, all men of Swiss nationality being obliged to perform military service.

The Committee notes the information provided by the Government concerning the establishments and periods of assignment to civic service. It also notes the statistics, which show that 7,290 persons were compelled to perform civic service at the end of 2001. These persons may choose between 1,080 recognized establishments to perform their civic service. At the end of 2001, these establishments offered 4,109 posts. The Committee also notes the detailed statistics annexed to its reports.

The Committee notes the information contained in the Government’s latest report to the effect that the Federal Council submitted a message on 21 September 2001 for the approval of Parliament respecting the amendment of the Federal Act of 6 October 1995 respecting civic service (LSC), and that the above revision forms part of the review of the Federal Act on the army and military administration. The draft amendment was submitted, on 12 March 2002, to the Security Policy Commission of the National Council. The Committee notes that following this revision, civic service may be performed in a single block and that its duration will be slightly reduced (factor 1.3 instead of factor 1.5). The Committee notes that the principal objective of the revision is to adapt the Act on the civic service to the draft reforms of the Army XXI and the Protection of the Population XXI, harmonizing the procedure for admission to civic service with the new procedures for recruitment to the army. According to the message of the Federal Council of 21 September 2001, the provisions of the LSC need to be optimized without undermining current fundamental principles (the reservation of access to civic service to persons who cannot reconcile the performance of military service with their conscience; the examination of reasons of conscience, generally in an individual hearing; the performance of work of public interest outside the framework of the army; the total duration of the service, which is longer than that of training services envisaged by the military legislation; the equality of treatment of persons subject to civic service in relation to persons performing military service). The entry into force of the amended Act is envisaged for 1 January 2004. The Committee requests the Government to provide information on the progress made in the revision process and to continue providing information on the operation of civic service in practice.

Article 1, paragraph 1, and Article 2, paragraph 2(a), (c)

5. Compulsion to work in the event of refusal to serve. The Committee notes subsections 3 and 4 of section 81 of the Military Penal Code (CPM), as amended by Chapter 5 of the annex to the LSC of 6 October 1995. Under the terms of subsection 3, any member of a religious community who, refusing to perform military service for religious reasons, does not submit an application for admission to civic service shall be declared guilty and compelled to perform work of public interest, according to the procedures set out in section 8 of the LSC. Under the terms of subsection 4, "any person who can demonstrate in a credible manner that he cannot reconcile training service to obtain a higher grade with his conscience, but is ready to perform military service within the limits of his current grade, shall be compelled to perform work of public interest", under the terms of section 8 of the LSC.

The Committee draws the Government’s attention to the fact that the above provisions of the CPM are contrary to the provisions mentioned above of the Convention. Under the terms of Article 2, paragraph 2(a), any work or service exacted in virtue of compulsory military service laws for work of a purely military character is, in principle, excluded from the scope of the Convention. However, the Committee has admitted that in the specific case of conscientious objectors, persons subject to compulsory military service may, under certain conditions, choose to perform civic service in its place. But the case envisaged in section 81(3) is completely different since, in this case, the person subject to compulsory military service also refuses to perform civic service in its place. In the hypothesis envisaged in section 81(4), the person subject to compulsory military service is already performing the service, but refuses to accede to higher grades. The Committee emphasizes that in such cases work of public interest cannot be required in place of work of a purely military nature which, under the terms of Article 2, paragraph 2(a), may only be imposed upon persons subject to compulsory military service. Furthermore, the provisions of section 81(3) and (4) of the CPM are contrary to Article 2, paragraph 2(c), in so far as the penalty of work of public interest is performed in the context of civic service which, by virtue of section 3 of the LSC, may be carried out in a private institution performing an activity of public interest. The Committee therefore requests the Government to take the necessary measures to bring the national legislation into conformity with the Convention on this point.

The Committee also notes the information provided by the Government in its latest report to the effect that, as a suspended sentence is possible for persons who partially refuse military service, and particularly service for the purposes of promotion, no training service to obtain a higher grade has been refused for reasons of conscience. The Committee notes that no sentence to perform work of general interest in the framework of civic service with the factor 1.1 has been imposed under section 81(4) of the CPM, as a suspended sentence of imprisonment has been accepted on each occasion. The Committee nevertheless requests the Government to bring the national legislation into conformity with the Convention on this point. It also requests it to provide a copy of the ruling of the Military Cassation Tribunal of 5 September 1997, to which the Government referred in its last report, which made case law on this matter.

Article 1, paragraph 1, and Article 25.

6. Measures adopted or envisaged to prevent, repress and punish the trafficking in persons for the purposes of exploitation. The Committee notes the Government’s response to its general observation of 2001 concerning the trafficking in persons. It notes with interest the report published on 29 May 2002 by an inter-departmental working group set up by the Federal Department of Justice and Police. It notes in particular the deficiencies reported by the working group in the implementation and effectiveness of the penal legislation (and particularly the fact that the penal definition of the trafficking of human beings is too restrictive, as it is limited to trafficking with a view to prostitution) and as concerns assistance to victims (the very restrictive nature of the admission policy has the result of criminalizing victims). It notes the recommendations of the working group, which include the intensification of information in the countries of origin of victims, the launching of an awareness-raising campaign for the potential clients of prostitutes in Switzerland, the introduction of measures to assist in their return, the establishment of a central coordinating service on the "trafficking of human beings", the ratification of the United Nations Protocols on the trafficking of children and human beings in general, the revision of the Penal Code with a view to making the trafficking of human beings a direct criminal offence when it is undertaken for the purposes of the exploitation of their labour or the extraction of their organs, and the revision of the legislation on aliens. The Committee requests the Government to provide information on the effect given to these recommendations.