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Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 29) sur le travail forcé, 1930 - Suisse (Ratification: 1940)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Suisse (Ratification: 2017)

Autre commentaire sur C029

Demande directe
  1. 2020
  2. 2016
  3. 2014
  4. 2012
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  11. 1993
  12. 1990

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Recalling that in September 2017 Spain ratified the Protocol of 2014 to the Forced Labour Convention, 1930, the Committee notes the information provided by the Government in its 2019 report on the measures taken to apply the Convention as supplemented by the Protocol.
Articles 1(1) and 2(1) of the Convention, and Article 1(2) of the Protocol of 2014. Systematic and coordinated action. Trafficking in persons. In its previous comments, the Committee noted the information provided by the Government on the implementation of the National Plan of Action against trafficking in human beings (2012–2014). The Committee also noted that the Coordination Unit against Trafficking in Persons and Smuggling of Migrants (SCOTT) was preparing a new national plan of action that was due to be adopted at the end of 2016 and it requested the Government to provide information on the implementation of the new national plan of action.
The Committee notes the information contained in the Government’s report, according to which the second National Plan of Action against trafficking in human beings (2017–2020) entered into force in January 2017. It was prepared by the competent federal and cantonal services, as well as civil society organizations. The National Plan of Action establishes priorities, determines the overall strategy to combat trafficking in persons and specifies the federal and cantonal services with the main responsibility for the implementation of the 28 measures that it contains. These measures are organized around the four strategic areas of prevention, criminal prosecution, the protection of victims and partnership.
The Committee also notes that, according to the information contained in the 2019 report of the Group of Experts on Action against Trafficking in Human Beings (GRETA) (paragraphs 18 et seq.), the SCOTT finished operating at the end of 2018. The Government planned to replace the SCOTT with a Platform against Trafficking in Persons and Smuggling of Migrants, which would not have decision-making powers. Moreover, the Executive Secretariat of the SCOTT was placed under the National Crime Prevention Division of the Federal Police Office (FEDPOL) and was renamed the Service to Combat Trafficking in Persons and Smuggling of Migrants (SETT). A working group was set up to draw up the rules of procedure for the operation of the new platform. In parallel, the working group requested that the takeover by FEDPOL of responsibility for all the activities of the SCOTT, as set out in section 13 of the Ordinance on measures to prevent offences related to trafficking in human beings, be formally approved by the Head of the Federal Department of Justice and Police. The Committee further notes that, according to the information available on the official website of FEDPOL, federal collaboration occurs through cantonal round-tables, which have already been established in 18 cantons. The Committee therefore requests the Government to provide information on: (i) the implementation of the National Plan of Action 2017-2020 and the preparation of a new plan following its expiry; (ii) institutional coordination at the federal level, including the establishment and activities of the SETT, and its rules of procedure; and (iii) the work of the cantonal round-tables and the activities of the competent authorities in the cantons where a round-table has not yet been established.
Article 25 of the Convention, and Article 1(3) of the Protocol . (i) Definition and criminalization of forced labour. Labour exploitation. The Committee noted previously that FEDPOL had mandated the Swiss Forum for Migration and Population Studies of the University of Neuchâtel to conduct a study on labour exploitation. The report, which was published on 6 April 2016, confirmed the existence of the exploitation of workers in such sectors as domestic work, hotels, restaurants, construction and agriculture.
The Committee notes that section 182 of the Penal Code criminalizes trafficking in persons, including for labour exploitation, which is punishable by a sentence of imprisonment or a fine. Moreover, section 264(a) of the Penal Code establishes crimes against humanity, including reduction to slavery, which is defined as “disposing of a person by exercising over that person a right of ownership, particularly in the context of trafficking in human beings, sexual exploitation or forced labour”. Crimes against humanity carry a sentence of imprisonment of at least five years. The Government indicates that criminal prosecutions for trafficking in human beings (section 182 of the Penal Code), in cases involving the exploitation of forced labour, sometimes result in convictions under other criminal provisions, such as fraud (section 146), usury (section 157), threats (section 180), constraint (section 181) or abduction (section 183). This occurs in particular when all the elements constituting trafficking in persons are not present or have not been proved.
The Committee notes the absence of a clear definition of “forced labour” and “labour exploitation” in Swiss legislation, and that labour exploitation is only criminalized in the context of trafficking in persons, despite the judicial practice of imposing penalties under other criminal provisions. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that the legislation on action to combat forced labour is in conformity with the Convention, particularly in relation to labour exploitation that is not related to trafficking in persons. The Committee also requests the Government to continue providing information on the application of the criminal provisions under which penalties are imposed in cases of labour exploitation.
(ii) Imposition of penalties. The Committee noted previously that, under the terms of section 182 of the Penal Code respecting trafficking in humans, 46 and 58 violations were recorded in 2014 and 2015, respectively.
The Committee notes the Government’s indication that in 2016 six final judgments were issued under section 182 of the Penal Code (one suspended fine, one prison sentence that was not suspended, and four suspended prison sentences). In 2017 and 2018, two judgments became final each year (one suspended fine, one prison sentence that was not suspended, and two suspended prison sentences). The Committee also notes that the statistical data currently available on the application of section 182 of the Penal Code is not disaggregated by type of exploitation. The Government indicates that FEDPOL has launched the process of changing the recording and presentation of police crime statistics so as to be able to distinguish between the different forms of exploitation in cases of violations of section 182 of the Penal Code, and that it is planned to introduce the change from 2020. The Committee requests the Government to continue providing information on the application of the relevant provisions of the Penal Code, and particularly section 182, drawing a distinction between the various forms of exploitation.
(iii) Strengthening the capacities of the actors in the criminal prosecution system. The Committee notes the Government’s indication that, in 2017 and 2018, specialized training for the actors in the criminal prosecution system was organized and held in the Swiss Police Institute. Moreover, FEDPOL is currently finalizing the design of training and awareness-raising for all professional groups that may be confronted with trafficking. The objective is the provision of systematic training for the respective professional services and groups in Switzerland. The Government adds that, within the framework of the National Plan of Action, it intends to prepare a practical guide to facilitate the identification of situations of trafficking for labour exploitation, and that certain specific issues still have to be examined. The Committee requests the Government to provide information on the training on trafficking in persons available for actors in the criminal justice system and for professional services and groups which may be confronted with trafficking. It also requests it to provide information on the preparation of the practical guide to facilitate the identification of situations of trafficking for labour exploitation.
Article 2 of the Protocol. Prevention measures, clauses (e) and (f). Supporting due diligence in the public and private sectors. Action to address the root causes. The Committee notes the information provided by the Government on the National Plan of Action for the implementation of the United Nations Guiding Principles on Business and Human Rights (2016–2020). In the context of the implementation of this National Plan of Action, the Secretariat of State for the Economy (SECO) and the Federal Department of Foreign Affairs published in May 2019 a brochure intended for Swiss micro, small and medium-sized enterprises with a view to providing them with practical insight into the opportunities and challenges of responsible enterprise management and providing international and national guidance on the inclusion of human rights issues in enterprise management. The Committee requests the Government to indicate whether a new national plan of action for the implementation of the United Nations Guiding Principles on Business and Human Rights is planned following the expiry of the current Plan of Action in 2020.
Article 3 of the Protocol . (i) Identification of victims. The Committee notes the Government’s indication that measures have been taken to update the checklist for the identification of victims of trafficking in persons by adapting it to current issues relating to trafficking in persons. The checklist contains specific indicators related to sexual exploitation and labour exploitation. Moreover, a guide on the identification of victims for the use of the police is being prepared to ensure harmonization at the national level. FEDPOL has also mandated a university institute to assess the situation of trafficking in persons in all the cantons and to evaluate the action taken to combat this crime at the cantonal level. The Government emphasizes that action to combat trafficking is organized at the cantonal level, and that there are significant differences between cantonal policies on the identification of victims of trafficking. According to the information contained in the GRETA report, the number of persons identified as victims of trafficking by the police was 35 in 2014, 47 in 2015, 90 in 2016, 108 in 2017 and 64 in 2018 (paragraph 12). However, eight cantons still do not have roundtables to serve as a mechanism for the guidance of victims (paragraph 118). The Committee requests the Government to provide information on: (i) the preparation of the guide for the police on the identification of victims to ensure harmonization at the national level; (ii) the findings of the study commissioned by FEDPOL to analyse the situation of trafficking in persons in all the cantons and assess the action taken at the cantonal level to combat this crime; and (iii) statistical data on the victims of trafficking for the purposes of sexual exploitation and labour exploitation who have been identified.
(ii) Protection of victims. General system. The Committee notes that the legal basis for the provision of assistance to victims of violations, including victims of trafficking, is contained in the Federal Act on assistance to victims of violations (LAVI). Under section 2 of the LAVI, assistance to victims includes advice and immediate help, with longer-term assistance being provided by consultation centres, and the contribution to the cost of longer-term assistance provided by a third party. Section 9 provides that the cantons shall establish consultation centres providing services adapted to the needs of the various categories of victims. Moreover, in addition to immediate help, if necessary, assistance must be provided until the state of health of the victim is stable and the other consequences of the violation have disappeared or been resolved (section 13(2)). It must include medical, psychological, social, material and legal assistance and, where necessary, emergency accommodation (section 14(1)).
The Committee further notes that Action No. 18 of the National Plan of Action envisages the preparation of a reference document entitled “National Programme for the Protection of Victims”, with a view to promoting the uniform application of the legal tools that exist in the cantons. The Government adds that, within the framework of the National Plan of Action, the Government envisages the review of statistics on the assistance provided to victims of trafficking who have been provided with specialized assistance by the listed non-governmental organizations. GRETA also observes that the capacity of specialized shelters to accommodate victims of trafficking in Switzerland has increased over the reference period (paragraph 149). The Committee requests the Government to provide information on: (i) the number of victims received by shelters specializing in support for victims of trafficking, and the nature of the assistance provided to them; and (ii) the progress made in reviewing statistics on the assistance provided to victims of trafficking who have received specialized assistance from non-governmental organizations.
Period of recovery and reflection. The Committee notes that section 35(1) of the Ordinance of the Federal Council on the admission, residence and exercise of an income-generating activity (OASA) provides for a period of recovery and reflection of at least 30 days to allow victims of trafficking to recover and decide upon their cooperation with the authorities. According to the information contained in the GRETA report, in practice, the period of recovery and reflection is frequently granted for a period of at least 90 days, instead of the minimum period of 30 days envisaged by the law (section 179). However, under the terms of section 35(3) of the OASA, a period of recovery and reflection can be terminated earlier if the potential victim indicates that she or he does not wish to cooperate with the authorities (clause (a)), or if the person concerned has deliberately renewed contact with those presumed to have committed the offence (clause (b)). The Committee therefore requests the Government to provide information on the effect given in practice to these provisions under which the period of recovery and reflection can be brought to an end earlier, including the number of cases in which these provisions have been applied and the circumstances justifying their application.
Identification and protection of victims of trafficking among asylum-seekers. The Committee notes the Government’s indications that, under the responsibility of the Secretariat of State for Migration (SEM), a working group on asylum and trafficking established under Action No. 19 of the National Plan of Action has been given responsibility for preparing proposals to ensure that victims of trafficking are identified and that they receive assistance within the framework of the asylum procedures. The working group is called upon to examine the following issues: (i) regulation of the residence of victims; (ii) optimization of the current procedure for the identification of victims, assistance to victims, information to asylum-seekers and cooperation with stakeholders; and (iii) the support provided to victims of trafficking within the framework of the Dublin procedure. The working group has prepared general recommendations on the issues referred to above and is currently working on proposals for specific solutions with a view to their implementation. According to the information contained in the GRETA report, within the framework of the asylum procedure as revised in March 2019, victims of trafficking have a greater chance of being identified earlier as a result of the provision of free legal assistance from the beginning of the asylum procedure. The new procedure also offers an opportunity to establish new centralized processes and to train all the actors concerned, which could facilitate proactive early identification (paragraph 133). The statistics provided by the Secretariat of State for Migration indicate that 84 presumed victims of trafficking were identified among asylum-seekers in 2014, 32 in 2015, 73 in 2016 and 100 in 2017. In the context of the Dublin procedure, 19 presumed victims were identified in 2014, 17 in 2015, 34 in 2016 and 41 in 2017 (paragraph 128). The Committee requests the Government to continue providing information on the activities of the working group on asylum and trafficking under the responsibility of the Secretariat of State for Migration, and on the results achieved, to ensure that victims of trafficking are identified and receive assistance within the framework of the asylum procedure. The Committee also requests the Government to provide statistical data on the number of victims of trafficking identified during the asylum procedure.
Article 4 of the Protocol. Paragraph 1. Access to remedies and compensation. The Committee notes that the Code of Penal Procedure provides that persons who have suffered, by reason of a violation, direct physical, psychological or sexual harm may seek compensation from the perpetrators of the crime through the judicial system (sections 116, 122 et seq. (civil action)). Section 73 of the Penal Code determines the legal framework for the confiscation of the assets of those who have committed crimes with a view to the compensation of victims. It is also possible to confiscate assets that are not the product of criminal acts to cover the costs of judicial action, penalties, fines and compensation (sections 263(1)(b) and 268(1)(a) and (b) of the Code of Penal Procedure). However, the Committee notes that, in its 2019 report, GRETA indicates that it is difficult to prove material prejudice, for example by quantifying the precise amount of unpaid wages. The report also indicates that the compensation awarded to victims by the courts is generally too low and that its payment by perpetrators is not enforced (paragraph 198).
The Committee further notes that, under the terms of the relevant provisions of the LAVI, the victims of crime are entitled to compensation (section 2(d)) from the State for financial and moral damages if the perpetrator or another debtor does not pay compensation or pays insufficient compensation (section 4). Chapter 3 of the LAVI governs the right of victims to compensation and to moral damages from the canton and the method of calculation. The GRETA has been informed that compensation was paid by the State to 14 victims of trafficking in 2014, 29 in 2015, 23 in 2016 and 19 in 2017 (paragraph 204). The Committee requests the Government to provide information on: (i) the cases in which courts have upheld claims for compensation, specifying the amount awarded and the amount actually received by the victims; and (ii) cases in which victims have been awarded the right to compensation by the State under the terms of Chapter 3 of the LAVI.
Paragraph 2. Non-prosecution of victims for acts committed under constraint. The Committee notes the absence of specific provisions in Swiss law on the non-prosecution of victims. However, in accordance with section 19 of the Penal Code, a person who commits a criminal offence can only be convicted if that person had the capacity to determine or appreciate the unlawful nature of the act committed. Moreover, sections 52 to 55 of the Penal Code set out the conditions under which persons may be exempted from penalties or be subject to suspended criminal prosecution.
The Committee also notes that, according to the information contained in the GRETA report (paragraph 235), there are cases in which victims are fined or prosecuted for violations of the legislation on foreign nationals, labour legislation or the regulations on prostitution. This situation has a deterrent effect on victims of trafficking, who are less likely to report their cases to the authorities for fear of being prosecuted or expelled from Switzerland. The Committee also notes Actions Nos 16 (training of the criminal prosecution authorities on trafficking in human beings) and 17 (networking between public prosecutors) of the National Plan of Action 2017–2020 intended to improve the identification of victims of trafficking and prevent penalties being imposed on them under the legislation on foreign nationals. The Government indicates that, in 2017 and 2018, specialized training for actors in the criminal prosecution system included components on exemption from penalties for those who are forced to commit criminal acts due to their situation of exploitation. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that victims are not prosecuted for acts committed under constraint, including within the context of Actions Nos 16 and 17 of the National Plan of Action 2017-2020.
Article 5 of the Protocol. International cooperation. The Committee notes the Government’s indication that Switzerland has implemented programmes and projects to support the countries of origin of victims in their action to combat trafficking in persons, namely Bulgaria, Hungary and Romania, with a view to improving collaboration between the criminal prosecution authorities in relation to trafficking in persons and between the services responsible for the protection of victims. These projects came to an end in 2018. The Committee requests the Government to indicate whether it envisages continuing the projects with a view to supporting the countries of origin of victims, and to continue providing information on international cooperation programmes.
Article 6 of the Protocol. Consultation with organizations of employers and workers. The Committee notes that, according to the report entitled “Exploitation of labour in the context of the trafficking of human beings: Situation in Switzerland”, published in 2016 by the Swiss Forum and commissioned by FEDPOL, the labour authorities and the social partners are not sufficiently involved in and aware of the prevention and detection of trafficking for labour exploitation, including in situations in which they are in direct contact with the active population (page 77). GRETA also notes that trade unions are not represented at the Geneva roundtable (paragraph 282), and that the institutional changes relating to the SCOTT were implemented without in-depth consultation with stakeholders (paragraph 18). The Committee requests the Government to indicate the measures adopted or envisaged to ensure effective consultation with employers’ and workers’ organizations concerning the measures adopted to combat forced labour.
Article 2(b) of the Convention. Obligation to agree to serve as a guardian (curateur). In its previous comments, the Committee noted that the obligation for citizens to agree to serve as guardians (curateurs), as established in section 400 of the Civil Code, is contrary to the Convention and that the Canton of Vaud is the only one in which this provision is applied strictly. The Government indicates that, at the federal level, the preliminary draft of the Federal Council in response to Parliamentary initiative No. 12.413 to amend section 400 of the Civil Code has been submitted for consultation. Moreover, in July 2014, the government of Vaud decided to bring an end to compulsory guardianship orders. The Committee also noted previously that the Government was planning to introduce the recruitment of private and voluntary guardians in 2017 through the implementation of a communication campaign. The Committee therefore requested the Government to provide information on the introduction of the recruitment system for private and voluntary guardians since 2017, and the number of persons covered by guardians.
The Committee takes due note that, according to the information provided by the Government, section 400 of the Civil Code has been amended and provides that a person can only be nominated as a guardian with their agreement. In May 2017, the State Council of Vaud decided to bring an end to compulsory guardianships from 1 January 2018. As of 31 December 2018, a total of 529 guardians, all volunteers and trained, had been appointed by justices of the peace and were entrusted with mandates. Other candidates are awaiting nomination and have not yet completed the recruitment process.
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