Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

1. Article 2, paragraphs 1 and 2, subparagraph (c), of the Convention. Work of general interest. Prisoners working in establishments managed by private entities. In its previous comments, the Committee noted that, under sections 37–39 of the Penal Code, the courts may order, with the agreement of the offender, work of general interest instead of a sentence of imprisonment of under six months or a financial penalty of a maximum of 180 fine-days. Work of general interest is unpaid and is carried out for the benefit of social institutions, works of public utility or persons in need. The Committee requested the Government to provide information on the criteria used by the authorities to determine the type of associations or institutions for the benefit of which work of general interest may be performed, so that the Committee could ascertain that the work performed was indeed of general interest and that the entities for which the work was carried out were not exclusively profit making. The Committee also requested the Government to provide the list of establishments to which convicted persons may be assigned to perform work of general interest.

The Committee also noted that, under section 81 of the Penal Code, detainees, who are under the obligation to work, may only be engaged by a private employer with their consent. In this regard, the Committee noted that section 379 of the Penal Code empowers the cantons to entrust to establishments managed by private entities the execution of sentences in the form of semi-detention or external work. The Committee requested the Government to indicate in its future reports the cases in which the execution of sentences in the form of semi-detention or external work had been entrusted to private entities and, in such cases, to provide information on the conditions and arrangements for the performance of work by detainees for the benefit of these private entities.

The Committee notes that the report provided by the Government in 2008 contains information originating from 16 cantons, while ten cantonal authorities have not replied. Among the cantons which have provided information, some have not provided all the information requested, in particular the list of establishments to which convicted persons may be assigned to perform work of general interest, on the grounds of data protection, cantonal sovereignty and the independence of the judicial system. Some cantons (Aargau, Lucerne and Solothurn) referred to the Federal Council’s Message of 21 September 1998 concerning the revised general part of the Penal Code, according to which the Convention is not violated in so far as the persons concerned consent to performing the work directly for private entities and/or under their supervision (Chapter 285 of the Message). These cantons considered that, for that reason, there were no grounds for thinking that the provisions prohibiting forced labour had been violated or cause for informing the Committee. Furthermore, these cantons also refused to provide the list of enterprises to which convicted persons may be assigned to perform work of general interest. The Committee notes the Government’s indication that it does not have the legal means to force cantonal authorities to provide all the information requested.

In view of the reference made by certain cantonal authorities to the Federal Council’s Message of 21 September 1998, under which the Convention is not violated provided that persons sentenced to perform work of general interest consent to performing that work directly for private entities and/or under their supervision, the Committee emphasizes that the supervision of the application of international labour Conventions is a matter for the ILO’s supervisory bodies alone, which are not bound by any interpretation of those Conventions by state institutions. In this regard, the Government is responsible for ensuring that the necessary information is sent to the Office, if necessary by requesting it from the various territorial authorities concerned, so that the Committee can duly supervise the application of international labour Conventions. With regard in particular to the possibility of entrusting to entities other than public associations the execution of sentences of work of general interest, the Committee recalls that the consent of the convicted person to work for a private entity or under its supervision is not sufficient to ensure observance of the Convention. The Committee refers in this regard to paragraphs 126 and 128 of its 2007 General Survey on the eradication of forced labour, in which it clearly indicated that it sought assurance with regard to two aspects: first, that the person sentenced formally consents to doing the work of general interest; and secondly, that the circumstances in which the work is performed are adequately structured and monitored to ensure that the work done really is in the general interest and that the entities for which the work is performed are non-profit making.

Nature of entities benefiting from work of general interest

With regard to the criteria used by the authorities to determine the type of associations or institutions for the benefit of which work of general interest may be performed, the Committee notes that some cantons (Appenzell-Outer Rhoden and Thurgau) indicate that checks are carried out to verify that the institutions concerned are public interest establishments and that, in the case of private bodies, the condition which has to be met is that they pursue a public- interest mission. Another canton (Appenzell-Inner Rhoden) indicates that the institutions selected are exclusively institutions owned by the canton or commune. Other cantons (Glarus, Schaffhausen, St Gallen and Thurgau) indicate that the institutions concerned must be exempt from tax on account of the public nature or public utility of the objectives they pursue. In Graubünden, work of general interest may be performed in community institutions or in private organizations serving the interests of the poor or the community as a whole, as well as in institutions which aim to protect nature or the environment, for which the main criterion is the general interest. Others (Neuchâtel and Ticino) indicate that work of general interest concerns work which would not be performed if it had to be remunerated and which is mainly performed for the benefit of associations, foundations or other institutions which are mainly of a social or humanitarian nature. An examination of the statutes of these bodies must prove that they are entirely non-profit-making. In the canton of Valais, the work performed by persons sentenced to work of general interest is work not requiring specific vocational skills and the performance of which is optional or complementary. The canton of Zurich indicates that, in addition to work of general interest carried out in institutions such as retirement and nursing homes, hospitals, residences, hostels and boarding schools, community centres, beaches, sports facilities, local workshops and non-profit-making organizations working to protect nature and the environment or engaged in charity activities serving the community as a whole, the Zurich Foundation for Prisoners and Released Persons (ZSGE) manages a workshop in which convicted persons with limited abilities can perform work of general interest in a protected environment. Other cantons (Appenzell-Outer Rhoden, Appenzell-Inner Rhoden, Aargau, Berne, Graubünden, Lucerne, Solothurn and Zurich) have provided texts (ordinances, circulars and directives) governing work of general interest.

The Committee notes that certain cantons (Appenzell-Outer Rhoden Appenzell-Inner Rhoden, Berne, Glarus, Graubünden, Obwalden, Schaffhausen, Solothurn, St Gallen, Ticino and Valais) have provided a list of establishments to which convicted persons may be assigned to perform work of general interest. One canton (Thurgau) indicates that it has reviewed the list of institutions to which convicted persons may be assigned to perform work of general interest following the request made by the authorities of the Confederation, which has resulted in the removal of a retirement home managed by private entities.

Prisoners working in establishments managed by private entities

With regard to the possibility of cantons entrusting to establishments managed by private entities the execution of sentences in the form of semi‑detention or external work, the Committee notes that a number of cantons (Neuchâtel, Obwalden, Ticino, Valais) indicate that this situation has not arisen in practice. Another (Aargau) indicates that, in the case of external work, prisoners sign a private employment contract and receive a wage that corresponds to free market conditions, as well as the usual social benefits, and contribute, by means of the payment of a moderate sum, to the cost of the accommodation and care provided within the prison establishment. The cantons in the east of Switzerland (Appenzell-Outer Rhoden, Appenzell-Inner Rhoden, Glarus, Graubünden, Schaffhausen, St Gallen, Thurgau and Zurich) indicate that, under section 2(2) of the Concordat concluded between the cantons in the east of Switzerland on the execution of sentences and measures of 29 October 2004, the Eastern Switzerland Committee on the Enforcement of Sentences and Measures may authorize establishments managed by private entities to engage persons sentenced to semi-detention and external work. In accordance with Chapter 5.1 of the Directive of 7 April 2006 relating to the arrangements for the performance of external work, external residence and the employment of persons assigned to a private employer, the Eastern Switzerland Committee on the Enforcement of Sentences and Measures approves the request from an establishment for authorization to engage persons sentenced to external work where the establishment has a clear organization, a framework document on the serving of sentences, as well as internal regulations, guarantees proper and consistent supervision and management of the persons entrusted to it and operates a continuous 24-hour service. Based on these criteria, three private establishments, mentioned in the report, have been recognized as being suitable to engage persons sentenced to external work. Furthermore, as of the date of the report, no establishment managed by a private entity had been recognized as being suitable to engage persons sentenced to semi-detention on the territory covered by the eastern Switzerland Concordat. In the canton of Glarus, the private institution Teen Challenge Swiss may, if necessary, be called upon for the execution of sentences and measures. However, to date, no request to that end has been made. Some of the cantons which signed the Concordat between central and north-west Switzerland and which provided information (Aargau, Lucerne, Solothurn) indicate that, where sentences in the form of semi-detention and external work are not served in cantonal prisons (semi-detention) or in establishments covered by the Concordat (external work), they shall be served in public or private establishments recognized under the Concordat on the execution of sentences in Switzerland concluded between the north-west and central cantons of Switzerland (Chapter 4 of Directive No. 12 of 22 April 2005 on the execution of sentences of semi-detention and Chapter 3.3 of Directive No. 10 of 3 November 2006 on external work, published on the web site www.prison.ch/konkordat). With regard to the Canton of Aargau, sentences of semi-detention are served exclusively in cantonal prisons, while sentences of external work are served with a public or private employer. In both cases, the labour relationship is based on a private employment contract and the convicted person receives a wage corresponding to free market conditions, as well as the usual social benefits. With regard to the canton of Berne, the information provided indicates that sentences of semi‑detention are served exclusively in prison and, with regard to external work, sentences are served with institutions managed by private entities according to the terms of individual employment contracts. With regard to the canton of Lucerne, sentences of semi-detention are served in a cantonal prison, as well as in a private institution authorized by the Federal Department of Justice and Police on 20 October 2000. The canton of Lucerne and the private establishment concerned concluded an agreement on 10 April 2001 establishing the arrangements for the execution of short-term prison sentences in the form of semi-detention. Work under the semi-detention and external work regimes is carried out on the basis of a private employment contract and the convicted person receives a wage corresponding to free market conditions, as well as the usual social benefits. With regard to the canton of Solothurn, sentences of semi-detention are generally served with an institution recognized under the Concordat, but it is not specified whether this is a public or private institution. Under both the semi-detention regime and the external work regime, the labour relationship is based on a private employment contract and the convicted person is paid a wage corresponding to free market conditions, as well as the usual social benefits.

The Committee notes all this information with interest and thanks the Government and those cantonal authorities which have provided the information requested. With regard to work of general interest, it notes, in the light of this information, that the conditions that it has laid down to ensure that the work in question actually serves the general interest appear to be met overall. With regard to the condition that institutions to which convicted persons may be assigned to perform work of general interest are non-profit-making, the information provided by certain cantons (Appenzell-Outer Rhoden, Glarus, Graubünden, Schaffhausen, St Gallen, Thurgau, Valais) is less precise. Based on the information provided by the authorities of the canton of Valais, it is not possible to verify either of the above conditions in respect of that canton. The Committee would therefore like to receive further information from the authorities of these cantons to verify that the two conditions recalled above have been met.

With regard to the execution of sentences in the form of semi-detention or external work, the information provided by certain cantons does not make it possible to establish the conditions in which convicted persons are required to work for private entities, in particular in terms of wages and social benefits. This is the case for the eastern cantons with regard to both semi-detention and external work and for Berne with regard to external work.

The Committee requests the Government to take all the necessary measures to gather information from those cantonal authorities which have not replied to the questions raised and further information from those that have replied partially, if necessary by explaining the ILO’s supervisory procedures, in particular the role of the Committee, and the obligations of Switzerland arising from the ratification of international labour Conventions. It hopes that all the information will be provided in the Government’s next report.

2. Articles 1 (paragraph 1), 2 (paragraph 1), and 25. Trafficking in persons. The Committee notes the information provided by the Government in 2009 on the manner in which the various national authorities cooperate to combat the trafficking in persons and, in particular, the role played by the Swiss Coordination Unit against the Trafficking of Persons and the Smuggling of Migrants (SCOTT). It notes that cooperation mechanisms between the various partners concerned have been set up in eight cantons and are in the process of being established in four others.

With regard to the identification of victims, the Committee notes that numerous awareness-raising activities were carried out in 2007, 2008 and 2009 targeting the services likely to come into contact with victims (the police, prosecution authorities, private and public victim assistance bodies) in order, in particular, to strengthen their capacities relating to the identification of victims. The Government indicates that the efforts undertaken in this regard need to be continued and extended to other target groups. With regard to the protection of victims, the Government indicates that the Federal Act on Assistance for the Victims of Offences (LAVI; RS 312.5) provides for the right to advice and assistance for any person who has suffered a direct physical, sexual or psychological attack following an offence. Furthermore, the Federal Act on Foreign Nationals (LEtr; RS 142.20) allows the general conditions for entry into the territory to be waived for the victims of human trafficking. Sections 35 and 36 of the Ordinance on admission, stay and the performance of income-generating activities (OASA; RS 142.201) expressly provide for a cooling-off period of at least 30 days for victims of or witnesses to human trafficking, as well as the possibility of obtaining a short-term residence permit where their presence is required for the purposes of the investigation or legal proceedings. The Federal Office for Migration is due to issue specific directives in this regard for the cantons in 2009. The Government adds that the immediate care of victims by specialized bodies increases the willingness of victims to testify and experience has shown that, in those cantons with operational cooperation mechanisms, the participation of victims in criminal proceedings is noticeably higher. Furthermore, the Confederation is currently working with the cantons to draw up uniform regulations on the longer term protection of witnesses, given that such protection constitutes an essential factor in improving measures to combat crime in general and trafficking in persons in particular.

Finally, with regard to the court proceedings initiated against those responsible and their sentencing under the new section 182 of the Penal Code, the Government indicates that major work relating to the training and awareness-raising of the criminal prosecution authorities in connection with the new section 182 of the Penal Code began in 2008 and will continue. However, due to the methods for recording data, statistics on criminal convictions under section 182 of the Penal Code are not yet available.

The Committee also notes the information provided by the Government in the context of its third periodic report under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (see document CEDAW/C/CHE/Q/3/Add.1 of 12 May 2009). It notes, in particular, the victim assistance activities carried out by the FIZ Makasi information centre located in Zurich. In 2007, 167 women victims of trafficking were assisted by the centre, compared to 133 in 2006, representing an increase of 25 per cent. The victims came from 28 countries, with Eastern Europe accounting for 50 per cent of those victims, compared to a third the previous year. With regard to the criminal proceedings initiated against persons suspected of being involved in the trafficking of human beings, in 2008, the Government indicates in this report that 25 cases of such prosecutions were recorded. Over the period 2007–08, eight criminal convictions were handed down on the basis of section 182 of the Penal Code. The sentences imposed ranged from a six-month suspended sentence to 2.5 years’ imprisonment and the fines imposed ranged from 900 francs to 2,400 francs.

The Committee notes with interest all the measures taken by the Government, which demonstrate its determination to combat the complex phenomenon of trafficking in persons. It requests the Government to continue providing information on the coordination and awareness-raising activities developed by SCOTT. Please indicate whether new cooperation mechanisms between the various partners have been implemented in other cantons. With regard to victim protection, the Committee would like the Government to specify whether the Federal Office of Migration has issued specific directives for the granting of residence permits to victims of trafficking and whether the regulations on the longer term protection of victims have been adopted and, if so, it requests the Government to provide a copy. Please also indicate the number of victims who have benefited from a cooling-off period, as well as from a residence permit under sections 35 and 36 of the OASA. In general, please indicate the measures taken to ensure that those responsible are prosecuted, whether on the initiative of victims, by encouraging them to testify and obtain redress, or on the initiative of the prosecution authorities, by allocating them the necessary resources.

Noting that section 182 of the Penal Code punishes the trafficking of human beings with a prison sentence the duration of which is not specified (at least one year if the victim is a minor) or a mere financial penalty, and that the information submitted by the Government to the United Nations Committee on the Elimination of Discrimination Against Women in May 2009 mentions relatively minor sentences taking into account the severity of the offence concerned, the Committee requests the Government to provide information on the court decisions handed down on the basis of section 182 of the Penal Code in order that it may assess whether the sentences handed down for the offence of the trafficking of human beings are really adequate and strictly enforced, in accordance with Article 25 of the Convention.