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United Nations Committee on the Rights of the Child - States Parties Reports |
UNITED
NATIONS |
|
CRC
|
|
Convention on the Rights of the Child |
Distr. GENERAL CRC/C/78/Add.3 19 October 2001 ENGLISH Original: FRENCH |
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER
ARTICLE 44 OF THE CONVENTION
Initial reports of States parties due in 1999
SWITZERLAND
GE.01-45310
(E) 080102 220102
CONTENTS
Paragraphs Page
Introduction 1 -
5 6
General statistical information on children 6 -
9 6
I. GENERAL MEASURES OF IMPLEMENTATION 10 -
44 7
A. Compatibility of the Swiss legal order with the
obligations deriving from the Convention 10 - 13 7
B. Measures
adopted in the context of article 4
of the Convention 14
8
C. Place of the Convention vis-à-vis internal law 15 -
16 9
D. Existing mechanisms to ensure the implementation of the
Convention, coordinate policies applicable to children
and monitor
progress achieved (art. 41) 17 - 21 9
E. Measures taken to make the
principles and provisions
of the Convention widely known (art. 42) 22 -
23 11
F. Dissemination of reports (art. 44 (6)) 24 -
29 14
G. International cooperation 30 - 44 16
II. DEFINITION
OF THE CHILD 45 - 59 18
A. The definition of the child in Swiss law
45 18
B. The age limit for children to exercise their rights
and
fulfil their obligations 46 - 59 18
III. GENERAL PRINCIPLES
60 - 132 21
A. Non-discrimination (art. 2) 60 - 70
21
B. Best interests of the child (art. 3) 71 -
82 25
C. The right to life, survival and development (art. 6) 83 -
101 27
D. Respect for the views of the child (art. 12) 102 -
132 31
CONTENTS (continued)
Paragraphs Page
IV. CIVIL RIGHTS AND
FREEDOMS 133 - 215 36
A. Name and nationality (art. 7) 133 -
140 36
B. Preservation of identity (art. 8) 141 -
144 37
C. Freedom of expression (art. 13) 145 -
155 38
D. Access to appropriate information (art. 17) 156 -
176 40
E. Freedom of thought, conscience and religion (art. 14) 177 -
190 43
F. Freedom of association and of peaceful
assembly (art.
15) 191 - 197 47
G. Protection of privacy (art. 16) 198 -
211 48
H. The right not to be subjected to torture or other cruel,
inhuman or degrading treatment or punishment
(art. 37 (a)) 212 -
215 50
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE 216 -
387 50
A. Parental guidance (art. 5) 216 -
224 50
B. Parental responsibilities (art. 18 (1) and (2)) 225 -
262 52
C. Separation from parents (art. 9) 263 -
273 58
D. Family reunification (art. 10) 274 -
304 61
E. Illicit transfer and non-return (art. 11) 305 -
313 68
F. Recovery of maintenance for the child (art. 27 (4)) 314 -
319 70
G. Children deprived of a family environment (art. 20) 320 -
326 71
H. Adoption (art. 21) 327 - 360 72
CONTENTS (continued)
Paragraphs Page
I. Periodic review of
placement (art. 25) 361 - 363 78
J. Neglect, exploitation or abuse
(art. 19), physical and
psychological recovery and social
reintegration
(art. 39) 364 - 387 79
VI. BASIC HEALTH AND
WELFARE 388 - 498 86
A. Disabled children (art. 23) 388 -
403 86
B. Health and health services (art. 24) 404 -
458 90
C. Social security and childcare services and
facilities
(arts. 26 and 18 (3)) 459 - 491 101
D. Standard of
living (art. 27 (1) to (3)) 492 - 498 106
VII. EDUCATION AND LEISURE,
RECREATION AND
CULTURAL ACTIVITIES 499 - 611 109
A. Education,
including vocational training and guidance
(art. 28) 499 -
586 109
B. Aims of education (art. 29) 587 -
591 124
C. Leisure, recreation and cultural activities (art. 31) 592
- 611 125
VIII. SPECIAL PROTECTION MEASURES 612 -
799 129
A. Children in situations of emergency (arts. 22, 38 and 39)
612 - 642 129
B. Children in conflict with the law (arts. 40, 37 and
39) 643 - 684 139
C. Children in situations of exploitation,
including physical
and psychological recovery and social
reintegration
(arts. 32 to 36) 685 - 773 146
D. Children
belonging to a minority (art. 30) 774 - 799 162
IX. CONCLUSION 800 -
803 166
CONTENTS (continued)
Page
List of annexes
A. Elements of a
Swiss policy on children and young people, Federal
Department of Home
Affairs, Bern, 3 July 2000 196
B. Legal texts
196
C. Statistics 197
D. List of principal abbreviations
198
Introduction
1. The Swiss Government has the honour to submit
to the Committee on the Rights of the Child (hereafter “the
Committee”)
the initial report of Switzerland, prepared in conformity with
article 44, paragraph 1 (a), of the 1989 Convention on the Rights
of the
Child[1] (hereafter “the
Convention”). This report should be read in conjunction with the core
document constituting the first
part of Switzerland’s various reports
(HRI/CORE/1/Add.29/Rev.1), and also with its accompanying annexes. Generally
speaking,
it takes account of the status of legislation as
at 1 November 2000.
2. As regards the annexes, the Swiss
Government draws particular attention to the supplement to Switzerland’s
first initial
report “Elements of a Swiss policy on children and young
people”. The preparation of the report has also provided an
opportunity
to consider the situation of children and young people in Switzerland, to
describe the achievements of the policy concerning
them and to identify
remaining gaps, against the background formed by the Convention. This basic
information will also provide Switzerland
with working tools for reinforcing
future policy on children and young people.
3. The present report
describes the legislative, administrative, judicial and other measures in force
in Switzerland as they relate
to the rights guaranteed by the Convention. It
attempts to present, beyond a mere description of the legal regime and
legislation,
the actual situation with regard to protection of the rights of the
child. As to its content, form and presentation, the detailed
account relating
to the provisions of the Convention follows the Committee’s guidelines on
the preparation of country reports
concerning the Convention (documents CRC/C/5
of 30 November 1991 and CRC/C/58 of 20 November 1996).
Because of the federal structure
of the State, which reserves broad spheres of
competence for the sovereignty of the 26 cantons making up the Swiss
Confederation,
some information in this report is condensed in the form of
general rules valid for the whole of Switzerland. When this has appeared
necessary, references to relevant cantonal information have nevertheless been
incorporated.
4. The Swiss Government hopes that this initial report will
meet the Committee’s expectations and that its consideration will
provide
an opportunity for a fruitful dialogue.
5. This report was adopted by the
Swiss Government on 1 November 2000. It will be published in German,
French and Italian so as to
be accessible to a wide readership. A summary of
the report has also been prepared with a view to ensuring the broadest possible
dissemination of the principles contained in the Convention and their
implementation in Switzerland.
General statistical information on children
6. Further to the core document, it should be
stated at this point that, according to the data derived from the most recent
federal
census,[2] the resident
population of Switzerland in 1990 was 6,873,687. That figure included
1,399,011 children and young people under the
age of 18, representing about
20 per cent of the total population. The proportion of children and
young people under 18 within the
resident population in 1980 was
24 per cent and in 1970 28 per cent.
7. In 1990, of
the 1,399,011 children and young people living in Switzerland, 1,132,942 were of
Swiss nationality. Most of the foreign
children were Italian (78,157), Yugoslav
(46,738), Spanish (27,266), Turkish (27,079) or Portuguese
(26,386).[3]
8. In 1990,
717,395 boys (51.3 per cent) and 681,616 girls
(48.7 per cent) were living in Switzerland. In 1997, there were
105.1
liveborn boys for every 100 girls. In the same year, 59,117 Swiss
children were born in Switzerland as compared with 21,467 children
of foreign
nationality.
9. In 1990, 63.6 per cent of children were living
in urban areas and 36.4 per cent in rural areas. As regards the
distribution of
national languages in 1990, 64.1 per cent of children
spoke German, 20.5 per cent French, 6.3 per cent Italian and
0.5 per cent Romansch.
In the same year, 47.2 per cent
of children were of the Roman Catholic faith and 37.9 per cent
Protestants.[4]
I. GENERAL MEASURES OF IMPLEMENTATION
A. Compatibility of the Swiss legal order with the
obligations deriving from the Convention
10. Switzerland’s
commitment to the rights of the
individual,[5] democracy and
the principles of the rule of law constitutes one of the five objectives of its
foreign policy.[6] For this
reason, Switzerland does everything possible to ensure better protection in law
and in practice for children, who are among
the most vulnerable members of
society.
11. At the internal level, the Federal Constitution and numerous
other enactments guarantee the rights of the child in the various spheres of
life. At the international level, the
rights of the child are set forth in
various instruments to which Switzerland is a party, such as, for example - at
the regional
level - the European Convention on Human Rights and - at the
universal level - the United Nations instruments relating to human rights,
in particular, the Convention on the Rights of the Child. On
28 June 2000, it also ratified ILO’s Worst Forms of Child Labour
Convention (No. 182).
12. The Swiss legal system thus ensures broad
protection for children and young people - protection which falls within the
context
of the Convention. However, when Switzerland acceded to the Convention,
certain areas where federal or cantonal law was not compatible
were identified.
This led to the formulation of reservations with regard to five provisions
(arts. 5, 7, 10 (1), 37 (c) and 40).
13. On various occasions, the Swiss
Government has expressed its desire to create, through the necessary legislative
amendments, the
conditions conducive to the prompt withdrawal of the
reservations.[7] Quite
recently, it has had occasion to confirm its position in this
respect.[8] It has already
taken important steps to consider and prepare the amendments to the law in force
necessary for such withdrawal, and
Parliament will reach a decision on this
work. The developments relating to the work are described below, in the context
of the
observations on the corresponding provisions of the Convention (see
paras. 218 et seq., 141, 303 et seq.
and 676 et seq.).[9]
B. Measures adopted in the context of article 4 of the Convention
14. Generally speaking, Switzerland’s
action is aimed at the more effective implementation of international standards
at the
national level. Thus, although the Swiss legal system admittedly appears
to be broadly consistent with the Convention, the fact
remains that Switzerland,
basing itself directly or indirectly on the Convention, has made a point of
effecting important legislative
amendments and establishing various initiatives
aimed at reinforcing existing protection. Reference may be made, in particular,
to:
The new Federal Constitution, which entered into force on 1 January 2000,
now contains:
(a) In the part on fundamental rights, an express provision on the protection of children and young people (art. 11);
(b) Two references to children and young people in the provisions defining social goals (art. 41 (1) (f) and (g));
(c) A provision relating to the sharing of competence between the Confederation and the cantons which devotes particular attention to the needs of children and young people (art. 67);
(d) Lastly, a provision concerning the legal situation of children:
prohibition of discrimination on grounds of age (art. 8 (2)).
On 21 September 1998, a federal bill governing the criminal status of minors was submitted to Parliament. Following adoption of this text, the criminal law on minors will be regulated by a specific enactment, and no longer by a single code, in parallel with the criminal law on adults.[10] This new law should enable Switzerland to withdraw its reservations to articles 37 (c) and 40 (2) (b) (ii) of the Convention.[11]
A partial revision of the criminal provisions concerning sexual offences is currently under preparation. The aim is to extend the limitation period for sexual offences committed against children and to make mere possession of child pornography a punishable offence.
The law on assistance to victims of offences is currently undergoing partial revision with a view to improving the position, in criminal procedure, of juvenile victims of sexual offences and providing support for them throughout the proceedings in order to mitigate the harmful effects of those proceedings on their psychological equilibrium.
The total revision of the Asylum Act and Ordinance 1 on asylum, both of which entered into force on 1 October 1999, improve the position of minors in asylum procedure.
The new law on divorce and the revised law on filiation, which entered into force on 1 January 2000, comprise (a) substantial material innovations which are clearly in the interests of the child, and (b) improvements relating to the position of the child in proceedings involving family law.
The Federal Department of Home Affairs (DFI) has undertaken a thorough analysis of national policy on children and young people. An outline of this analysis and emerging prospects is annexed.
In cooperation with the Swiss Committee for UNICEF, the DFI has begun a
farreaching study on mediation for
children.[12]
C. Place of the Convention visàvis internal law
15. Switzerland is one of the States with a
monistic tradition. Every international treaty, including the Convention,
ratified by
the Swiss Government therefore forms an integral part of its
internal legal order as from the treaty’s entry into force for
Switzerland, without need to transpose the treaty into the legal system through
the enactment of a specific law. The Convention
entered in force in Switzerland
on 26 March 1997.
16. As from the date of an international
treaty’s entry into force for Switzerland, it is possible to assert its
ensuing rights
before the Swiss authorities, to the extent that the provisions
invoked are directly applicable. A provision is directly applicable
when this
rule, considered in its context and in the light of both the subject and the
purpose of the treaty, is unconditional and
sufficiently precise to produce a
direct effect, to apply as such to a particular case and to constitute the basis
for a concrete
decision.[13]
D. Existing mechanisms to ensure the implementation of
the
Convention, coordinate policies applicable to children
and monitor
progress achieved (art. 41)
17. There
are many mechanisms involved in the implementation of the Convention at both the
federal and cantonal levels. These two
levels of competence derive from the
federal structure of Switzerland. In fact, the sharing of powers between the
central State
and the cantons is in conformity with the principle of allocation:
the Confederation exercises only those spheres of competence which
are expressly
allocated to it by the Constitution, the cantons remaining sovereign provided
their sovereignty is not limited by the Constitution. As such, the cantons
exercise all the rights which are not delegated to the federal
power.
18. In the case which concerns us, a large proportion of policy
with regard to children and young people is within the competence
of the
cantons, notably all matters relating to compulsory schooling, the
execution of penalties, certain parts of the health policy,
the promotion of
culture and substantial sectors of social policy (notably responsibility for
children outside the family).
19. It follows from this sharing of competence that at the federal level several offices are responsible for matters relating to children at the national level, notably:
Federal Office for Social Insurance, within the DFI, for matters relating to social insurance and certain coordination functions within the sphere of protection of the child (Central Organization for Family Questions);
Federal Office of Public Health, within the DFI, for problems relating to AIDS and drugs;
Federal Office for Culture, within the DFI, which devotes particular attention to questions relating to young people;
Federal Office for Education and Science, within the DFI, and the Federal Office for Vocational Training and Technology, within the Federal Department of Economic Affairs (DFE), which deal with questions relating to schooling and training for which the federal authorities are responsible;
Federal Offices of Justice, the Police, Foreigners and Refugees, within the Federal Department of Justice and Police (DFJP), for law relating to marriage, the family, divorce, adoption and guardianship, and also for nationality, the placement of children, refugee children, family reunification, traffic in and abduction of children, sexual offences, incest, sexual tourism and assistance to victims of offences;
Federal Bureau for Equality between Women and Men, within the DFI, notably for violence within the couple and the family, sexual abuse and tourism, and encouragement of girls to train in the technical and scientific professions;
Federal Sports College at Macolin, within the Federal Department for Defence, Civil Protection and Sports (DDPS), for sporting activities and the “Youth and Sport” programme;
State Secretariat for Economic Affairs, within the DFE, for matters relating
to child labour and unemployment insurance.
20. The following federal
offices are responsible for matters relating to children at the international
level:
Directorate for International Public Law, within the Federal Department of Foreign Affairs (DFAE), for the drafting of reports concerning the Convention. This Directorate, together with the Political Division for Human Rights and Humanitarian Policy within the same Department, assumes responsibility for the promotion and protection of the rights of the child at the international level, in cooperation with other States, the various international (global or regional) agencies and civil-society organizations;
Agency for Development and Cooperation, within the DFAE, for matters relating
to assistance to developing countries, taking account
of children’s
needs.
21. It should be mentioned at this point that the preparation of the
present report has not only provided an opportunity to undertake
a global
examination of the various measures taken to ensure implementation of the
Convention. This work has also contributed to
better coordination between the
above-mentioned offices competent in the area of the rights of the
child.
E. Measures taken to make the principles and provisions
of
the Convention widely known (art. 42)
22. Switzerland is
convinced that, in order to publicize the principles and provisions of the
Convention nationally, it cannot dispense
with a diversified broadly-based
public-relations effort. It is also essential to identify those measures which
are best able to
influence the world of children and young people. In this
connection, it may be stated that in Switzerland, generally speaking,
the
authorities responsible for these matters are willing to organize campaigns not
only for young people, but also with them.
23. To this end, action has
been taken on many fronts and at different levels, using various channels of
communication:
(a) The process of Switzerland’s accession to the
Convention made it possible for public opinion to become familiar with the
principles concerned. This was due to the broad parliamentary debates which
preceded accession and the attention given them in the
media;
(b) In the
context of legislative procedure at the federal level, the Swiss Government
systematically refers to the Convention in
work relating to its sphere of
application. This procedure must (a) guarantee legislation consistent with the
Convention, and (b)
help to ensure that the fundamental ideas contained in the
Convention guide the work of the legislative, executive and judicial
powers;
(c) Certain activities are organized on the occasion of Rights
of the Child Day[14] (every
year on 20 November) and Swiss Parent Education Day (every year on the second
Saturday of September). These events constitute
ideal platforms for publicizing
the principles and content of the Convention. They also provide an opportunity
for taking up specific
subjects which children regard as
important;
(d) Through financial assistance the Confederation supports
specialized nongovernmental organizations (NGOs) which initiate extremely
diverse activities or events highlighting the aspirations and rights of
children. By way of example, mention may be made of:
“Kinderlobby Schweiz” and “Schweizerische Kindernachrichtenagentur”, which have received contributions for their practical work on implementation of the Convention;
Education and Development Foundation;
Centre for Human-Rights Advice and Support for Young People (CODAP);
International Centre for Training in the Teaching of Human Rights and Peace (CIFEDHOP);
Defence for Children International (DEI) - Swiss section;
Swiss Committee for UNICEF;
Swiss Committee for Youth Activities (CSAJ).
In addition, the
information meetings held once or twice a year between the federal
administration and NGOs reinforce cooperation
between these players in the area
of protection of the child. The seminar organized on 5 February 1999 on the
subject of mediation
work for children and young people is one example of the
cooperation between the administration and NGOs;
(e) Switzerland has
also financed specific projects such as:
− A competition for Swiss primary and secondary schoolchildren, organized in 1998 in cooperation with the Swiss Committee for UNICEF, on the subject of their rights and the situation of the rights of the child throughout the world. Every class presented its conception of this subject by painting a flag. At the same time, the many participating schools were encouraged to adopt the rights of the child as a subject for education and discussion, in order to arouse the interest and understanding of children. For the final event, the organizers invited to Bern the pupils of 10 classes who had the opportunity to discuss the importance of human rights with male and female politicians and, in particular, with Ruth Dreifuss, Chief of the DFI, who was also President of the Confederation. In 1999, the winning flag was depicted on a Swiss postage stamp and, because of the wide publicity attached to it, this activity enabled many schoolchildren to play a direct part, through artistic means and their discussions, in increasing awareness of the fundamental principles of the Convention.
− A study on the state of school and paraschool education in the rights of the individual in Switzerland, as defined in the existing international instruments. This study made it possible to identify the efforts that remain to be undertaken in order to improve the dissemination and knowledge of the principles set forth in the Convention.
− As regards the nonschool area a questionnaire on education in the rights of the individual, which the Human Rights Academy addressed to further training institutions, NGOs, universities, the police, the media, and associations working in the field of cooperation for development and in the social sphere;
(f) The extraparliamentary commissions also play an important role in the area of publicity. These bodies, set up by the Confederation, perform public tasks for the Government and the administration.[15] The following federal commissions engage in work on the implementation of the Convention on the Rights of the Child: Commission on Foreigners,
Commission on Refugees, Commission on Women’s Questions, Youth
Commission, Commission against Racism and Commission for the
Coordination of
Family Questions. The reports on the activities of these commissions provide
information on the work they do in
the area of policy on
children;
(g) The bulletins regularly published by the various federal
offices are also an effective means of publicizing the Convention, because
they
are sent to a very wide range of recipients outside the federal administration.
Mention may be made, by way of example, of
Questions familiales, the
information bulletin of the Central Organization for Family Questions (Federal
Office of Social Insurance, DFI), which is published
three times a year, or
La Suisse et le monde (DFAE), which, in 1998, devoted the bulk of
one of its editions to the rights of the individual;
(h) In the context
of its Conference Service, the DFAE proposes, among many other subjects, that of
Switzerland’s commitment
to the rights of the child. Responding to
invitations from schools, associations and institutions, specialists from this
Department
give them the benefit of their knowledge;
(i) In 1998, the
DFAE commissioned outside specialists to prepare appropriate didactic material
on the subject of the Convention.
Early in 1999, the material was sent to
teachers (especially teachers in primary and junior secondary schools - the
period of compulsory
education) in the context of the Journal suisse des
enseignantes et
enseignants;[1]
(j) At
the cantonal and communal levels, the youth commissions and “Youth
parliaments” play an extremely important role.
They constitute excellent
channels for publicizing and implementing the rights of the
child;
(k) The Conference of Cantonal Directors of Education (CDIP) is a
forum for meetings of the cantonal executive organs responsible
for the
education system. At the national level, it performs organizational and
coordination functions in the sector of education
and training. Through the
Federal Office of Education and Science, which works in close cooperation with
the CDIP, the Confederation
monitors work on the implementation of policy on
children in schools;
(l) The fundamental principles of the rights of the
child have, throughout Switzerland, been reflected in legislation on schools,
ordinances, curricula and pedagogical guidelines. In addition, some cantons
have expressly integrated the Convention in their
curricula,[17] whereas the
others mention it in their courses (history, civic education, preparation for
choosing an occupation, etc.), generally
in relation to the Universal
Declaration of Human
Rights;[1]
(m) The
Convention is also the subject of training courses in teachertraining colleges
and other educational institutions (parent
education, social institutions). In
fact, in all teachertraining colleges, the requirements of the Convention
constitute one of
the bases of teacher
training;[1]
(n) Large-scale information campaigns have been undertaken in the various
cantons in order to make the Convention known to a wide
public, in particular:
In Lucerne, “Pro Juventute” and the “Kinag”
(Kindernachrichtenagentur), in 1995,
developed projects for Children’s Day and published a calendar on the rights of the child;
In Valais, the Kurt Bösch University Institute has published a brochure and organized an exhibition publicizing the Convention;
In Geneva, Children’s Day (20 November) is always an opportunity to organize events intended for a wide audience;
Ticino hosts an itinerant exhibition known as “Diritti dei bambini”, whose impact is strengthened by means of brochures and television advertisements on the rights of the child;
Basel reports the educational event “Welt in Basel”, organized by private individuals and embodying the themes of the Convention.
In addition, local and private initiatives are taken in many cantons to
publicize the rights of the child.
(o) The electronic media governed by
public law display great interest in broadcasting programmes on the rights of
the child and
cooperating with the administration’s services in this area.
One of the most interesting media in this respect is Internet.
Younet,[2] a non-profit
association comprising several organizations working for and with young people,
offers on the Internet a platform providing
copious information. Younet thus
intends to serve, on the Internet, as a focal point for all matters relating to
young people.
It receives financial support from the Federal Office for Culture
and from the Youth, Family and Prevention Division of the canton
of Basel-Stadt.
Younet may be consulted in French, German and Italian.
F. Dissemination of reports (art. 44 (6))
24. The Directorate for International Public Law
within the DFAE has coordinated the work of drafting the present report. To
this
end, it has chaired an interdepartmental working group composed essentially
of representatives of the following services within the
federal
administration:
Federal Bureau for Equality between Women and Men;
Federal Office for Culture;
Federal Office of Public Health;
Federal Office for Statistics;
Federal Office for Social Insurance;
Federal Office for Education and Science;
Federal Office of Justice;
Federal Police Office;
Federal Office on Foreigners;
Federal Office for Refugees;
Federal Office on Sports;
State Secretariat for Economic Affairs;
Division of Human Rights Policy and Humanitarian Policy.
25. As already mentioned above, a substantial proportion of the work of
implementing the Convention lies within the competence of
the cantons, which
have accordingly been very closely associated with the preparation of the report
by means of a questionnaire.
The Conference of Cantonal Directors of Social
Affairs has collated and summarized the cantons’ replies.
26. In
addition, a broad consultation procedure has been undertaken with the partners
concerned, the cantons, NGOs, the Federal Commission
on Women’s Questions,
the Federal Commission on Foreigners, the Federal Commission for the
Coordination of Family Questions,
the Federal Commission on Refugees, the
Federal Commission on Young People and the Federal Commission against Racism,
and with various
interested circles. Within a period of four and a half months,
all of them have been able to give their opinion on this report.
27. It
has to be acknowledged that, because of its extent, this process has also been
an important means of publicizing the principles
and provisions of the
Convention among a broad circle of recipients.
28. This report has been
drafted in the three main official languages of the Confederation (German,
French and Italian). It can therefore
be consulted by a broad audience in these
languages. In addition, it is planned to publish a special edition of this
report (also
in the three languages) including the conclusions and
recommendations of the Committee on the Rights of the
Child.[2]
29. It
should also be mentioned that a summarized version has been prepared with a view
to ensuring the broadest possible dissemination
of the principles contained in
the Convention and their implementation in our country. This document - also
translated into the
three languages - will be widely distributed (cantons,
administration offices, NGOs, media, universities, political parties, interested
circles).
G. International cooperation
30. Generally speaking, Switzerland endeavours
to focus its official assistance on poor countries, regions and populations of
the
third world, while striving, inter alia, to take account of the needs
of children. Switzerland attaches particular importance to the human dimension
of development and
to social development. It gives practical effect to this
priority by stressing human development, the balanced development of men
and
women, enabling people to determine their destiny (empowerment) and action to
combat poverty. These guidelines make it possible
to promote forms of
development which are favourable for children.
31. From the standpoint
of problems relating to children, Switzerland attaches great importance to the
establishment of an economic
and social framework which will create a favourable
environment for their development. Thus, the advancement of children is dealt
with on a transversal basis, in the same way as action to combat poverty, the
balanced development of men and women, and environmental
protection. In the
establishment of programmes, particular emphasis is placed on the foreseeable
effects of planned measures on
the situation of children.
32. In
Switzerland, it is the Development and Cooperation Agency (DDC) within the DFAE
which plays a lead role in cooperation for
development.
1. Bilateral activities
33. In the bilateral area, Switzerland supports
numerous projects in the spheres of education, health (mother and child health,
reproductive
health), agricultural production (when this promotes nutrition and
food security), action to combat poverty and the creation of paid
employment
directly benefiting children.
34. Switzerland also supports specific
activities for children through Swiss NGOs, notably Caritas, Enfants du monde,
EPER, the Pestalozzi
Children’s Village Foundation in Fribourg,
Terre des hommes-Lausanne, Terre des hommes-Suisse, in Basel and Vivamos
mejor (total
DDC contributions to Swiss NGOs: Sw F 124 million in 1997).
35. By way of example, it may be mentioned that, since the 1980s,
Switzerland has financed a project in Bangladesh entitled “Underprivileged
Children’s Educational Programme” (UCEP) with the Swiss NGOs Enfants
du monde and SKIP (contribution of Sw F 1.1 million
a year).
2. Multilateral activities
36. Multilaterally, Switzerland supports, by
means of general contributions, international organizations directly or
indirectly active
in the sphere of children: UNICEF (Sw F 17 million
1998), UNAIDS[22] (Sw F
2.2 million, 1998), UNFPA [2]
(Sw F 11 million, 1998), WHO, (Sw F 4.8 million) and UNDP
(Sw F 54 million, 1998). These contributions have direct or indirect
effects
on the well-being of children around the world.
37. By
supporting UNCIEF (Switzerland is one of the 12 largest donors), whose principal
mandate is the protection and defence of children’s
rights, Swiss
cooperation contributes directly to the improvement of the situation of
children. Switzerland supports specific UNICEF
(humanitarian or development)
programmes in average annual amounts of the order of Sw F 4
to 5 million. In 1995, UNICEF established
a Global Fund for Women and
the Girl Child. This trust fund, which had a budget of US$ 3 million in
1995, is financed by voluntary
contributions from donors, notably Denmark,
Canada, the Netherlands and Switzerland. Switzerland made a contribution of
Sw F 900,000
in 1995. The Fund’s essential objectives are as
follows:
To redefine roles in the family and improve the participation of men in family responsibilities and work;
To combat discriminatory attitudes and certain practices which have a
negative impact on the survival and development of girls (early
marriage,
genital mutilation, infanticide of girls and prenatal sex
selection).
38. In addition, Switzerland has supported a UNICEF programme
for the advancement of girls in Pakistan.
3. Humanitarian activities
39. In armed conflicts and natural disasters,
children often lose their parents and other relations, and become displaced
persons
in their own country or refugees. During the first phase of a conflict,
the chief objective of humanitarian assistance is to protect
children and
guarantee their survival through access to medical care, housing, drinking water
and food. In the postconflict situation,
the objective is to achieve the
reintegration of children in their family: tracing the child’s parents or
relatives, provisional
acceptance of orphans in receiving families
or centres.
40. In order to coordinate its activities with those
of other institutions active in the humanitarian field, Switzerland cooperates
closely with UNHCR, ICRC, the World Food Programme (WFP) and
UNICEF.
41. Switzerland’s humanitarian aid stresses the protection
and promotion of children at several levels, mainly by financing
the various
relevant United Nations programmes: UNHCR, Sw F 28.4 million;
WFP, Sw F 25.6 million; other institutions (ICRC, Sw F
81 million) and Swiss NGOs (Sw F 37 million); next, through financial
contributions to specific programmes of international organizations
or by making
available material and personnel; and lastly, through particular activities in
various spheres.
42. As examples of humanitarian assistance to children,
mention may be made of the following:
Family reunification;
Demobilization of child soldiers;
Psychological rehabilitation of traumatized children;
Construction and rehabilitation of schools;
Training of refugee children until they return to their countries;
Mines (prevention, demining, medical assistance, creation of prostheses);
Support for unaccompanied children;
Protection against epidemics (vaccinations, prevention);
Support and follow-up of children in prison.
43. Switzerland’s
contribution to official development assistance (ODA) for children amounted to
Sw F 1,217 million in 1997,
broken down as follows:
− 13 per cent was devoted to education, information and culture;
− 8 per cent to health, nutrition and population studies;
− 16 per cent to arable farming and stockbreeding;
− 9 per cent to forestry and the environment;
− 14 per cent to infrastructure, water and energy;
− 6 per cent to crafts, industry and commerce;
− 5 per cent to the global economy, financing and services; and
− 3 per cent to social policy, administration and justice.
44. Thirty per cent of total ODA is devoted to
multilateral cooperation (contributions to United Nations agencies such as
UNICEF and
UNDP, to the development banks and to their special funds).
II. DEFINITION OF THE CHILD (art. 1)
A. The definition of the child in Swiss law
45. The definition of
the child in Swiss law is identical to that in the Convention, since under Swiss
family law every person is
considered to be a child up to the age of 18, when he
or she attains majority (Swiss Civil Code (hereafter CC) art. 14).
B. The age limit for children to exercise their rights and fulfil their obligations
46. As regards the minimum legal age for the
exercise of certain rights, Swiss law is based, generally speaking, not on age
but on
“legal capacity”. The Swiss Civil Code makes a distinction
between the enjoyment and exercise of rights. Whereas all
persons possess civil
rights (CC, art. 11 (2)) from birth, in that they can become subject to rights
and obligations, only persons
who have attained majority and are capable of
forming their own views can exercise civil rights and may, by their own acts,
give
rise to rights and obligations (CC, arts. 12 and 13). In accordance with
this definition, children do not satisfy the majority requirement
and cannot
therefore exercise civil rights. Depending on their maturity, however,
children may be capable of forming their own views and therefore
be able to
exercise certain rights. In article 16 of the Civil Code the ability to form
one’s own views is taken to mean the
ability to act
reasonably.
47. Whereas the acts of a minor incapable of forming his or
her own views do not in principle have legal effects (CC, art. 18), minors
capable of doing so may enter into obligations with the consent of their legal
representative (in principle the parents [CC, art.
304 (1)] or exceptionally a
guardian [CC, arts. 368 (1) and 407 (1)]) who represents the child in
respect of third parties (CC, art.
19 (1)). In addition, the law
confers certain rights on minors capable of forming their own views. Children
capable of forming
their own views may, without the consent of their legal
representative:
Acquire property gratuitously (CC, art. 19 (2)); this in particular concerns their right to receive donations or legacies free of charge;
Exercise strictly personal rights (CC, art. 19 (2)), namely, rights that are very closely bound up with the personality of each individual, so that the notion of selfdetermination is of particular importance. Personality means the entire range of physical, mental, moral and social characteristics constituting a person by virtue of his or her existence. Such personality rights include the right to life, to physical, mental and moral integrity and the right to enjoy respect for private and intimate matters, as well as the right to honour and freedom of movement. The exercise of these rights within the meaning of article 19 (2) of the Civil Code consists not only in the ability to perform juridical acts, but also the ability to have them enforced at law. In the framework of their strictly personal rights, therefore, minors capable of forming their own views can by themselves bring proceedings and also appoint a lawyer to defend their interests.
48. The possibility of having rights enforced in an independent manner
therefore depends not only on the child’s capacity to
form his or her own
views but also on whether the right in question is of a strictly personal
nature. A series of special rules
supplements the general provision in article
19 (2) of the Civil Code either by requiring the consent of the legal
representative
or by fixing a specific age for the exercise of certain
rights.
49. For example, the Federal Court has recognized that underage
patients may on their own consent to the medical treatment proposed
to them if
they are capable of forming their own views, since this is a matter that
involves a strictly personal right within the
meaning of
article 19 (2), of the Civil Code adding that consent should be
evaluated by the doctor in the light of the problems posed
by the
operation.[2] The legal
representative should be called upon to intervene whenever there is a doubt
about the minor’s ability to make an
objective evaluation of all aspects
of the proposed operation. Children capable of forming their own views may
therefore have medical
consultations and consent to treatment without the
agreement of their legal representative.
50. Minors may not, on the other
hand, conclude any contract of employment without the consent of their parents
(CC, art. 19 (1)).
The Labour Act
(LTr.)[2] contains specific
provisions for the protection of minors. The text of this Act was amended by
popular ballot at the end of
November 1998. Its article 30 fixes the minimum working age at
15 years.[26] Moreover,
the hiring of young persons (workers of both sexes under 19 years of age
and apprentices under 20 years of
age[27]) for specific types
of work may be prohibited by an ordinance or made subject to certain conditions
in order to protect their life,
health or
morals.[28] Exceptions may
be made on the basis of an ordinance concerning light work that children can
perform from the age of 13, as well
as the activities of children of
under 15 in connection with cultural, artistic or sports events and in
advertising.
51. As regards capacity to marry, a person may not contract
marriage before the age of 18 (CC, art. 94), and the consent of the
minor’s
legal representative is required for betrothal
(CC, art. 90 (2)).
52. On the other hand, all individuals,
regardless of age and even if incapable of forming their own views, enjoy the
right to inherit,
providing that they were live-born (CC, art. 544
(1)).
53. As for participation in proceedings which concern them, the
children act as parties by virtue of their capacity to enjoy rights
(CC,
art. 11). Children capable of forming their own views may act alone in
legal proceedings to ensure enforcement of a strictly
personal right within the
meaning of article 19 (2) of the Civil Code. Furthermore, according to
article 323 (1) of the Civil Code,
children have the right to
administer and enjoy the product of their labour and the assets with which their
father and mother provide
them in order to engage in a profession or trade.
This principle concerns work based on a valid contract of employment for the
conclusion
of which the children require the consent of their parents (CC, art.
19 (1)). The children acquire complete civil and procedural
capacity in respect
of the assets referred to. Their parents’ power of representation
therefore lapses. Apart from these
cases, children can act only with the
agreement of their legal representative by whom they will, in general, be
represented. In
representing the child, the parents must take the child’s
views into account as much as possible in important matters (CC,
art. 301 (2)).
Where a certain matter is likely to oppose the interests of the child and those
of his or her legal representative,
a guardian ad litem should be
appointed to represent the child (CC, art 306 (2)) and the parents’ power
of representation lapses.
54. Since these rights are of a strictly
personal nature within the meaning of article 19 (2), of the Civil Code children
capable
of discernment may by themselves submit a request to change their name
(CC, art. 30) and consent to their adoption (CC, art. 265
(2)). In principle,
however, the consent of the parents to the adoption is also required (CC, art
265a (1)).
55. As for children’s right to be informed of their
biological parentage in the case of medically assisted procreation, the
Federal
Act on Medically-Assisted Procreation of 18 December 1998
(LPMA)[2] states that it is
the child’s right, regardless of age, to request information of any kind
concerning the sperm donor if he
or she is able to invoke an interest worthy of
protection.[30] A child of
over 18 is not required to invoke an interest of this nature in order to obtain
information.
56. Article 15 of the Constitution guarantees freedom of
religion and conscience. According to article 303 (3) of the Civil Code,
children of 16 have the right to
choose their religion by themselves.
57. The
Federal Spirits Act[31] makes
it illegal to provide children and adolescents of under 16 years of
age with alcoholic beverages and those of 18 years of age
with distilled
beverages.[32]
58. Lastly, the period of compulsory education is 9 years and in general
ends when the child reaches the age of
15.[33]
59. At the
present time, the child may be subject to the special provisions of the Swiss
Criminal Code (CP) concerning
minors.[34] Children of
under 18 years of age are considered to be minors for the purposes of
criminal law. In this case the special provisions
concerning minors contained
in articles 83-88 of the Criminal Code for children of 7 to 15 years of age and
in articles 89-99 of
the Criminal Code for adolescents of 15 to 18 years of age
are applicable. The Criminal Code is not applicable to children of under
seven. As mentioned above, on 21 September 1998 the Government
submitted to Parliament the draft of a new federal act governing
the criminal
status of minors
(P-CPMin)[35] which states
that the age of criminal responsibility is to be raised from 7 to 10 years
(P-CPMin, art. 3).[36] As
regards the capacity to testify, it should be noted that criminal procedure,
like civil procedure, is a matter under the jurisdiction
of the cantons. Some
cantons do not indicate an age limit for giving evidence but most of them fix it
at 12, 14 or 15; moreover,
a witness must, generally speaking, have reached the
age of 18 in order to give evidence under oath. Lastly, as regards the lodging
of a complaint, a distinction is made between an offence prosecuted proprio
motu or on the basis of a complaint. When it is prosecuted proprio
motu it may be brought by any person, regardless of age, the only
requirement being that the person concerned should be able to express
himself or
herself in some way or other. If it is prosecuted on the basis of a complaint,
the complaint may be brought by any injured
party. If the injured party cannot
exercise civil rights, the complaint must be brought by his or her legal
representative. If
the injured party is under tutorship, the right to bring the
complaint also belongs to the tutorship authority. An injured party
of at least
18 years of age and capable of discernment, also has the right to bring a
complaint (CP, art. 28 (3)). The draft federal
act governing the criminal
status of minors proposes that minors should be able to bring a complaint if
they are capable of forming
their own views (art. 30 (3)). (See the commentary
relating to art. 40 of the Convention.)
III. GENERAL PRINCIPLES
A. Non-discrimination (art. 2)
1. The principle of equality before the law and prohibition of discrimination
60. The
general principle of equality before the law requires that all individuals
should be treated on the basis of the same legal
rules in all legal situations
and in daily life. It is not confined to certain sectors but is applicable in
all areas of law.[37]
Generally speaking, equality before the law and the prohibition of
discrimination in Switzerland stem from article 8 of the Federal
Constitution,
as well as other international instruments, namely, the European Convention on
Human Rights, the International Covenant on Civil
and Political Rights, the
International Convention on the Elimination of All Forms of Racial
Discrimination and the Convention on
the Elimination of All Forms of
Discrimination against Women.
61. The principle of equality before the
law within the meaning of article 8 (1) of the Federal Constitution is an
independent constitutional right. It guarantees in a general way the equality
of individuals before all State
bodies,[38] and particularly
before police bodies and the courts. The Federal Court considers the principle
of equality before the law to be
violated if identical situations are not
handled in the same manner in accordance with their similarity, or if different
situations
are not handled in a different manner, in accordance with their
distinct nature.[39]
Equality before the law is a principle which is applicable as much to
legislative activity as to the application of the
law.[40] In the context of
the principle of equality before the law, inequality of treatment may be
admitted if the actual situations at
its origin are genuinely different from the
standpoint of constitutional law. In all cases of inequality of treatment, the
court
should determine objectively the extent to which differentiation appears
to be justified in the light of actual
situations.[41]
62. Article
8 (2) of the Federal Constitution lists a number of grounds that cannot be used
to justify differences in treatment, namely, origin, race, sex, age, language,
social
position, way of life, religious, philosophical or political convictions
or physical or mental disability. The list is not, however,
exhaustive so as to
allow case law to develop freely and thereby to prohibit new sources of
discrimination.
63. Since equality before the law is a universally
applicable personal right, it is enjoyed by all persons, whether minors or of
age
and whether of Swiss or foreign nationality. It should be noted however
that foreigner status could constitute grounds for a difference
in treatment if
Swiss nationality is of fundamental importance in a specific case; article 121
of the Constitution therefore confers on the Confederation the right to regulate
the entry, departure, stay and residence of foreigners.
2. Legislative instruments
64. The principle of the prohibition of
discrimination is implemented by a variety of different laws.
65. As
regards racial discrimination, special mention should be made of new
article 261 bis of the Criminal Code - in force since 1 January
1995 - which reads as follows:
“Racial discrimination
Any person who, in public, incites hatred or discrimination against a person or a group of persons for racial, ethnic or religious reasons;
Any person who, in public, propagates an ideology intended to disparage or defame in a systematic manner the members of a race, ethnic group or religion;
Any person who, for the same purpose, organizes, encourages or participates in propaganda activities;
Any person who, in public, by word of mouth, in writing, with pictures, with gestures, by assault or in any other manner humiliates or discriminates against a person or group of persons in a way affecting their human dignity on account of their race, ethnic origin or religion or who, for the same reason, denies, grossly minimizes or seeks to justify genocide or other crimes against humanity;
Any person who refuses to provide a public service to a person or group of persons on racial, ethnic or religious grounds shall be punished by imprisonment or a fine.”
66. All these acts are prosecuted proprio motu. The cantonal
courts have so far handed down about 60 sentences in this connection. On 5
December 1997, the Federal Court rendered
its first judgement in application of
this new criminal
provision[42] in a case that
involved the sending of several letters containing anti-Semitic
remarks.
67. Swiss legislation (particularly the Federal Act concerning
Assistance to Victims of Offences of 4 October
1991[43]) enables the victims
of racist aggression affecting their physical, mental or sexual integrity to
obtain reparation.
68. As regards equality between the sexes, it may be
recalled that article 8 of the Constitution contains a provision that deals
specifically with this point, which reads “Men and women have equal
rights. The law provides
for legal and factual equality, particularly in the
family, during education, and at the workplace. Men and women have the right
to
equal pay for work of equal value.”
69. At the legislative level,
the equality of the sexes in labour matters is guaranteed by the Federal Act
concerning Equality between
Women and
Men[44] which in particular
spells out the equal pay principle. Equality of treatment can therefore be
ensured throughout all sectors of
the economy. This Act is applicable to all
men and women workers, irrespective of whether their labour relationships are
governed
by federal, cantonal or communal private or public law.
3. Measures[45]
70. (a) A Federal Commission against Racism (CFR) was established
following Switzerland’s accession to the International Convention
on the
Elimination of All Forms of Racial Discrimination. This Commission comprises
representatives of minorities, religious communities,
NGOs with specific
commitments in this area, conferences of cantonal police and public education
directors as well as social partners
and experts. It deals with the problem of
racial discrimination and seeks to bring about a better understanding between
persons
of different races, colour, origins - national or ethnic - and
religions. It combats all forms of racial discrimination, either
direct or
indirect, attaching special importance to prevention, and informs citizens
about ways and means in law of dealing with
their conflicts in this sphere,
clarifies the facts and endeavours to bring about conciliation, although it does
not possess any
decisionmaking power. Lastly, it also publishes periodic
reports on topical
subjects.[46] Since autumn
1997 the Commission has been publishing the review Spock which is
directed at young men and women workers. It contains information on subjects
such as equality of opportunity, multilingualism
and prejudice in order to
reaffirm the fact that coexistence without exclusion is also possible in the
world of work;
(b) In the framework of the Council of Europe, the
Confederation has associated itself with the “European Youth Campaign
against
Racism, Xenophobia, Antisemitism and
Intolerance”.[47] A
fund was set up to support the activities undertaken by young persons at the
local, regional and national levels. The public
at large was made aware of the
need to develop a more tolerant and open society. The purpose of this campaign
was to encourage the
population, and particularly young persons, to take an
active part in combating any form of racism, xenophobia and intolerance.
It was
in this context that the brochure “Liebe Schweiz - Jungendliche aus
Bosnien-Herzegowina schreiben” was published
by the National Coalition
Building Institute (NCBI), an organization of public interest,
non-denominational and politically neutral,
which is committed to bringing about
a society that is more tolerant and to combating racism, anti-Semitism and
xenophobia;
(c) The Conference of Cantonal Directors of Public Education
(CIDP) has confirmed, in its Declaration “Racism and the
School”,[48] that
foreign children and adolescents must be integrated without reservation and that
their culture should be held in esteem and
regarded in a positive manner. In
the view of CIDP, tolerance and peace should be taught at school. The purpose
of teaching and
education in the school context should be to make children aware
of and combat overt and concealed forms of racism, and also to encourage
open
and frank exchanges of views with foreigners or groups of
foreigners;
(d) Important measures have also been adopted to combat
racist propaganda on the Internet. Switzerland is well in the forefront
in this
connection, and it is worth pointing out that a large number of the proposals
and recommendations adopted on this subject
at the expert seminar held from 16
to 18 February 2000 in connection with preparations for the World Conference
against Racism have
already been implemented in Switzerland. These proposals
and recommendations have been transmitted to Internet access providers
as
well as to the government agencies
concerned[49] and various
measures have already been adopted in
Switzerland;[50]
(e) In
addition, training programmes have been introduced for police officers and the
guards of prison establishments which are intended
above all to reduce the
number of cases of police brutality of which persons of foreign origin have been
victims;
(f) On the basis of the Platform for Action adopted at the
Fourth World Conference on Women at Beijing in 1995, the Federal Council
instructed a working group within the federal administration to elaborate a plan
of action for Switzerland. This plan of action
entitled “Equality between
women and men” was published in June 1999 and contains, in chapter L
dealing with young girls,
a series of measures designed to eliminate
discrimination in the fields of training, statistics, violence, health, work and
youth
activities.
Since 1995, there has been increasing awareness of
the need to take into account the diversity of situations of girls and boys as
well as male and female adolescents and to reflect it in policies targeting the
two sexes (see chapter on training);
(g) The Federal Office for
Equality Between Women and Men was established in 1988. It is responsible
for promoting equality between
the sexes in all spheres of life in society. It
is committed to the elimination of all forms of discrimination against women and
elaborates decisions and measures designed to promote and ensure equality. It
works in cooperation with federal, cantonal, communal
and non-governmental
bodies active in this field. It provides advice to the authorities as well as
to individuals, and prepares
and supports projects for the promotion of equality
between the sexes. It informs the public and participates in projects of
national
importance. It provides financial assistance for the promotion of
programmes designed to foster equality between women and men in
their
professional activities and particularly in vocational training matters, and
thereby supports the integration of girls in types
of training traditionally
regarded as reserved for boys. Each year the Federal Office awards a
“Zora la rousse” prize
worth Sw F 10,000 for media directed at
children and adolescents. This award should have the effect of promoting
recognition of
the important role played by the media in shaping the opinions of
young persons of the roles of women and men and also of making
specific projects
more accessible to the group in question. Cultural projects developed by the
media for children and young persons
(theatre, dance, music, literature, cinema,
school projects, exhibitions) dealing with equality between girls and boys and
between
women and men which call in question behaviour that is specifically
connected with a certain role or which highlight new and novel
forms of
organizing life in the community are singled out;
(h) Offices for
Equality between Women and Men have been established at the cantonal and
communal levels to promote equality between
men and women as well as between
boys and girls;
(i) There is also a Federal Commission on Women’s
Questions which has strengthened its general work of providing information
on
various equality-related topics. The purpose of this Extraparliamentary
Commission which was set up in 1976 is to advise the
Government on the stand it
should take on all questions relating to equality between women and men and to
provide information to
the public and the authorities. The Commission has on
many occasions tackled topics dealing with family policy and children.
Specifically,
it has published a voluminous report on care facilities for
children and undertaken a study on relationships between girls and boys
in the
context of extracurricular youth activities.
B. Best interests of the child (art. 3)
1. The best interests of the child in the Swiss legal system
71. The best interests
of the child constitute a guiding principle of Swiss law. As mentioned above,
the Federal Constitution accords to children and young persons a special place
in the enumeration of fundamental rights and social objectives.
72. This
guiding principle is reflected in various laws and particularly in the Civil
Code, which is the cornerstone of family law.
The principle of the best
interest of the child is referred to on a number of occasions.
73. The
interests of the child are of paramount importance in the context of the
exercise of parental authority. For example, according
to article 301 of the
Civil Code, the parents decide what care and education is to be received by the
child “for his or her
own good” and take the necessary decisions
“subject to the child’s capacity”. Parental authority must
therefore
respect
the child’s personality rights. The legal
framework of the parent/child relationship is therefore determined by the
interests
of the child. Moreover, the area of parental decision-making is
delimited by the interests of the children, their capacity to act
and the
measures taken to protect them.
74. The recent amendment of the
Swiss Civil Code, which among other things, concerned divorce and filiation
law,[51] was based on the
principle of ensuring optimum protection of the interests of children. Greater
account is at present taken of these
interests, particularly in divorce or
separation proceedings. Parental authority can now be exercised jointly by
divorced couples
or concubines. The right of access becomes a reciprocal right
of parents and children.
75. Similarly, under the heading
“Protection of the child”, article 307 of the Civil Code makes it
incumbent upon the
tutorship authority to take appropriate measures to protect
children if their development is threatened and if their parents fail
to remedy
the situation themselves or are unable to do so. The same is true of children
placed with foster parents or children living
outside the family
unit.
76. The interests of the child are also of decisive importance in
decisions involving the transfer of parental authority to a father
who is not
married to the mother (CC, art. 298 (2)) in matters of adoption, which must
peremptorily serve the best interests of the
child (CC, art. 264), as well as in
decisions to withdraw the right to maintain personal relations (CC, art.
274).
2. Attention paid to the principle of the best interests of the child in practice
77. The case law of the Federal Court and the
cantonal courts, as well as the decisions of administrative authorities and
social welfare
bodies, reveal the importance that is unquestionably attached to
the principle of the best interests of the child.
78. For example,
according to the Federal Court’s case law, the best interests of the
child play a key role in the attribution
of parental authority in divorce
proceedings. At the decisionmaking level, children may be heard by the court
dealing with the divorce
or by a third party unless there are important reasons
for not doing so. Furthermore, a lawyer responsible for representing the
child’s interests may be appointed by the court during the proceedings,
particularly if the parents are seriously at odds.
79. The tutorship
authority, at the time a choice is made between various possible
solutions such as reminding the parents of their
duties, making
suggestions or giving instructions concerning the care, education and training
of the child, the designation of a
person entitled to a right of inspection and
information, the appointment of a guardian ad litem, the withdrawal of
the right to custody and even of parental authority and the placing of the child
under tutorship or, in the most
serious cases, the possibility of ordering
placement of the child in a suitable
establishment[52] - is guided
entirely by the best interests of the child.
80. The interests of the
child play an essential role at the administrative level in a large number of
spheres, such as decisions
involving the change of a child’s name, where
everything is done in his or her interest.
81. Lastly, it may be said in
general that the Federal Court has in its case law consistently recognized the
principle of the interests
of the child as a rule of conduct governing the
application of the law “when the future of the child is at
stake”,[53]
particularly in juvenile law.
82. Limits of and possible conflicts in
the application of the principle of the best interests of the child are likely
to appear above
all in the family context. Indeed, paternalistic attitudes may
lead the authorities or persons who hold parental authority not to
regard the
interests of the child as being of paramount importance and therefore to fail to
recognize the child as the principal
protagonist. Conflicts may also arise
where the objective interest of the child is at variance with his or her
subjective will.
Nevertheless, the fact that the State in general attaches
paramount importance to the interests of children and young persons has
a
considerable positive influence and is helping to change ideas that fail to take
sufficient account of the child’s interests.
C. The right to life, survival and development (art. 6)
1. The right to life
83. In Switzerland the
right to life is guaranteed by article 10 of the Federal Constitution as well as
by international instruments, particularly the International Covenant on Civil
and Political Rights (art. 6) and the European
Convention on Human Rights (art.
2).
84. Furthermore, the death penalty is expressly prohibited in
Switzerland both by the Federal Constitution (art. 10 (1)) and the Optional
Protocol to the above Covenant aiming at the abolition of the death penalty, and
also by Protocol
Additional No. 6 to the above-mentioned European Convention.
In view of these various international obligations, Switzerland has
undertaken
not to reintroduce the death penalty. It is therefore abolished
irrevocably.[54]
85. The
Federal Court has described human life as the primordial aspect of the
development of the personality and as one of the intangible
core rights relating
to personal freedom. The right to life is not confined to physical existence
but also guarantees the entire
range of physical and moral functions necessary
to existence.
86. The question of when protection of the right to life
begins remains open but it may be mentioned that at the present time abortion
is
punished under Swiss criminal law from the moment of nidation in the
uterus.[5]
87. As
regards the time protection of this right ends, the Federal Court has based its
opinion on the criterion of brain death, reflecting
recent medical doctrine.
What is called active euthanasia is in any event prohibited, since it violates
the fundamental principle
of the prohibition of intentional homicide (punishable
by article 111 of the Criminal Code).
88. From the legislative point of
view, the Swiss Criminal Code punishes any form of homicide, and specifically
murder (CC, art. 112),
murder at the request of the victim (CC, art. 114),
incitation to and assistance in suicide (CC, art. 115), and infanticide (CC,
art. 116). Endangerment of the life or health of others (CC, arts. 127-129) is
also prohibited and general
remedies are available to the victims of these offences in asserting their
right to reparation. If necessary, they may seek application
of the Federal Act
concerning Assistance to Victims of Offences
(LAVI).[5]
2. The right to survival
89. Switzerland is a social State, which means
that it works to achieve a just social order. Assistance to persons in need has
been
regarded as an important public duty from time immemorial
90. The
right to minimum conditions of existence, recognized by the Federal Court in
October 1995 as an unwritten constitutional
right,[5] is embodied in
article 12 of the Federal Constitution. According to this article, whoever is
in distress without the ability to take care of himself or herself has the right
to help
and assistance and to the means indispensable for a life led in human
dignity. The Federal Court’s decision making the right
to subsistence an
unwritten constitutional right gave rise to the initiative of the Steering
Committee for Human Rights of the Council
of Europe designed to stimulate
discussion of a right guaranteeing basic human material requirements and the
possibility of invoking
this right before the courts. On 19 January 2000, the
Committee of Ministers adopted Recommendation No. R (2000) 3 to member
States
on the Right to the Satisfaction of Basic Material Needs of Persons in
Situations of Extreme Hardship. The right is also embodied
in article 11 of the
International Covenant on Economic, Social and Cultural Rights.
91. In
general, it may be said that Switzerland enjoys a high level of social
protection. The two essential components of social
protection are social
insurance and social
assistance.[5]
92. Benefits
are paid under social insurance schemes when the risk insured materializes.
They cover the nine traditional branches
of social security and almost all are
under the jurisdiction of the Confederation. It may be noted that Switzerland
has ratified
ILO Conventions Nos. 102 and 128, as well as the European Code of
Social Security of the Council of Europe.
93. Social assistance is of a
supplementary nature since the only beneficiaries are persons who have no social
security coverage,
who no longer have such coverage or whose income is
inadequate. It consists of allowances guaranteeing a subsistence level plus
a
wide variety of other benefits. It is operated by the cantons which specify the
conditions to be satisfied and the amount of the
benefits payable. The Swiss
Conference of Social Welfare Institutions (CSIAS) has drawn up schedules for the
calculation of social
assistance which, in most of the cantons, are used to
determine the amount of social assistance benefits (material assistance)
payable.
94. The Confederation itself has only ad hoc facilities for
providing social assistance: assistance to Swiss nationals abroad,
[5] to asylumseekers and refugees.
Assistance is granted as much to foreigners as to Swiss nationals. If the
person in distress is
a foreigner he or she will also be protected by the
law on asylum, namely, by the Federal Asylum Act and its implementing
ordinances[60] as well as the
Federal Act concerning the Permanent and Temporary Resident of
Foreigners[61] and the
Ordinance on the Temporary Admission of Foreigners of 25 November
1987.[62]
95. Moreover,
the Federal Act concerning Competence in Matters of Assistance to Persons in
Need (LAS, RS 851.1) of 24 June 1977 specifies
the canton competent to assist a
needy person who is staying in Switzerland. The principle of assistance is
applied to the place
of domicile, both for Swiss citizens and for foreigners.
Regardless of where they may be staying, it is assumed that minors share
the
domicile (for purposes of assistance) of their parents or that of the parent
holding parental authority (LAS, art. 7 (1)). In
certain exceptional cases,
minors may have their own domicile for purposes of assistance, such as the
office of the tutorship authority,
or when they engage in a gainful activity
(LAS, art. 7 (3)).
96. There is also an extensive network of non-State
social welfare bodies, such as churches and private institutions, which work
side
by side with the basic social assistance services comprising the State
system.
3. Guarantee of the child’s development
97. The child’s right to development is
guaranteed by domestic law as well as by international instruments, and
particularly
by article 24 of the International Covenant on Civil and
Political Rights.
98. Domestically, various provisions of the Federal
Constitution guarantee the child’s right to
development:
(a) Generally speaking, the protection of the physical and
mental integrity of any person is a component part of the fundamental
right to
personal freedom (FC, art. 10). This provision implies an active role on
the part of the State which must therefore shape
its legal system to ensure such
protection;
(b) The legal system should pay particular attention to
children because of their inability to defend themselves against the
illtreatment
that may be inflicted on them by their parents or third parties.
This specific protection of the personal integrity of children
and young people
is provided for in article 11 of the Federal Constitution;
(c) This
article also explicitly recognizes the right of children and young people to
encouragement of their development;
(d) Under the heading of social
goals it is stated that not only should the law provide children with special
protection but also
that they should receive initial and continuing education
and be supported in their social, cultural and political integration (FC,
art.
41);
(e) Article 67 of the Federal Constitution goes on to say that the
Confederation and the cantons should, when fulfilling their tasks, take into
account the special needs of
children and young people for development and
protection;
(f) Basic education (compulsory education) is guaranteed
under the Constitution and is free in public schools (FC, art. 19). This
enables all children, including those of the most disadvantaged social classes,
to develop and to acquire a good level of
education.[63]
99. It
should also be mentioned that the child’s right to development is dealt
with under specific provisions of civil and criminal
law:
(a) Titles 7
and 8 of the Swiss Civil Code deal with the establishment and effects of
filiation, namely, the name and cantonal citizenship
of the child, the duties of
parents and children in matters of assistance and reciprocity, and the right of
the parents to maintain
personal relations with their child. The maintenance
duty of the parents is also regulated. Generally speaking, parents are required
to bring up the child according to their abilities and means by promoting the
child’s physical, intellectual and moral development;
(b) Under
the heading “Protection of the child”, articles 307 et seq.
of the Civil Code state that the tutorship authority should take the
necessary steps to protect children if their development is
threatened and the
parents fail to correct the situation themselves or are unable to do
so;[64]
(c) In the
field of labour law, a minor (at least 15 years of
age)[65] cannot conclude a
contract of employment without the consent of his or her parents. Moreover,
there are special rules that protect
minors;
(d) As regards criminal
law, articles 187 and 188 of the Criminal Code punish acts that endanger the
development of minors and acts
of a sexual nature with minors or dependent
persons.[66]
4. Registration of the death of children
100. Any death and any discovery of a body,
whether of a child or adult, must be declared within two days to the Civil
Registry Officer
who records it in the register of
deaths.[67] A stillbirth
after the sixth month of pregnancy is not recorded in the register of deaths but
in the register of
births.[68] The work of
Register Office personnel and the keeping of the registers are regulated by
Ordinance on the Civil
Status.[69] Proof of death
must be furnished in the form of a medical
certificate.[70] The cause
of death is communicated by the doctor to the Federal Office for Statistics but
is not indicated in the register of
deaths.[71] Depending on the
cause of death, the local authorities may open an inquiry on the basis of
cantonal codes of criminal procedure.
5. Child mortality
101. Generally speaking, the health of Swiss
children is good and improving steadily. Perinatal mortality declined by 35.5
per cent
between 1979 and 1992 and early neonatal mortality (before the end of
the first week of life) by 40 per cent during the same period.
Medical advances
and in particular paediatric progress have brought about a considerable
decline in mortality during the first year
of life. They have also had the
effect of reducing mortality caused by malignant tumours. There is every reason
to believe that
this trend will continue. At the present time the life
expectancy of a girl born in Switzerland is 82.1 years and that of a
boy
75.3 years.
D. Respect for the views of the child (art. 12)
1. Freedom of opinion of the child
102. Respect for the
views of children implies their right to express their views. Freedom of
opinion, inextricably bound up with
freedom of expression, is enjoyed by any
physical or legal person, whether a minor or of age. This freedom (which is
analysed in
the chapter dealing with freedoms and civil rights) is guaranteed
both by article 16 of the Federal Constitution and by the International Covenant
on Civil and Political Rights (art. 19), as well as by the European Convention
on Human Rights
(art. 10). It is essential that the views of the child should
be taken into account in every sphere of life.
(a) The parents
103. Family law embodies the principle that the
parents, in the exercise of their parental attributes, should grant children the
freedom
to organize their own lives, depending on their maturity, and should
take into account as much as possible their views in important
matters.[72] Decisions
concerning studies, for example, are generally taken by the parents or the
persons legally responsible for the children
after having consulted them. This
principle is valid not only in respect of the parents but also the
parents-in-law, foster parents
and the tutor, as well as any other authority
having to take decisions concerning the child.
(b) The school
104. Within the school system, each canton takes
the views of the child into account, and in all cantons the views of children
and
young people who are directly concerned by a certain matter are heard. In
the event of problems at school, they are systematically
included in the search
for solutions. The ways in which the cantons take the views of the child into
account differ. They may consist
in the student’s
self-evaluation,[73] the
appointment of “school mediators” as interlocutors in the event of
difficulties at school,[74]
or the consideration of the views of the parents - speaking on behalf of their
children - in connection with decisions concerning
the assignment of students to
a school or advancement to a higher
class.[75]
105. Hearings and interviews are arranged by teachers, headmasters or
headmistresses and/or school inspectors, all of whom have pedagogical
training
and in most cases continue to take advanced courses in this field. Depending on
the requirements of the situation, the
teaching staff and school representatives
cooperate with psychologists, psychiatrists and other experts capable of helping
children
and young people.
(c) The direct participation of children and adolescents in democratic life
106. There are at present 43 youth parliaments
in Switzerland: 23 in Germanspeaking Switzerland, 17 in French-speaking
Switzerland,
1 bilingual parliament at Biel and 1 in the canton of Ticino.
Twenty other parliaments are being organized. Participants are between
13 and
25 years of age. Over two-thirds of these youth parliaments have their own
annual budget (ranging from Sw F 700 to Sw F 40,000).
The young participants
undertake projects close to
their hearts, ranging from roller-board tracks to humanitarian assistance in
the framework of international cooperation. The powers
of the youth parliaments
formed recently are steadily expanding and in some cases even include the power
to submit motions to the
authorities. Cantonal and communal youth parliaments
are grouped under the Association of Swiss Youth Parliaments, which represents
the interests of young people and acts as an interlocutor with national and
international authorities.
107. The Seventh Federal Youth Session was
held in November 1998 at Bern (participants being young persons from 14 to 17
years of
age). Over 700 young persons had previously discussed, at regional
assemblies, the topics dealt with at the Session (asylum policies,
development
policies, status of men and women, protection of minorities, unemployment among
young persons and language policy).
The young persons attending the Session
expressed the hope that the teaching of a second national language would begin
earlier and
that teaching of a third national language would become compulsory.
They also requested the establishment of an independent body
to create an award
for Swiss enterprises in terms of their commitment to sustainable development.
The youth parliament is also a
staunch supporter of the establishment of a Swiss
Solidarity Foundation whose services would benefit children and young people,
among
others.
108. Young persons were also consulted in December 1998 in
connection with the amendment of the Constitution of the canton of Fribourg so
that their needs could be taken into account in the amendment procedure. They
mentioned among other
things the decriminalization of soft drugs, respect for
human rights, more intensive teaching of languages, the elimination of homework
over the weekend and respect for the views of children and
adolescents.
109. The canton of St. Gallen has initiated a new form of
political participation for young persons with a project entitled “Onwards
into the future”. Over 250 young persons were able to formulate
“visions” at the seven workshops set up in this
context which were
devoted to topics of mobility, communication, the environment, the community,
health, work and training. The
“visions” were addressed to the
Confederation, the cantons and the communes. The cantonal youth parliament
submitted
them to the government of St. Gallen on the occasion of the Second
Youth Session, held on 7 November 1998. The St. Gallen Youth
Council - the
“executive body” elected by the youth parliament - will, together
with participants in future youth sessions,
determine whether the politicians
have acted on the requests submitted and whether any progress has been achieved.
110. Children and young people can also sometimes make known their
wishes through youth forums or youth councils (for example the
Youth Forum of
the Hofstetten-Flüh commune in the canton of Solothurn and the St. Gallen
Youth Council).
111. There are various types of participation projects,
particularly at the commune level. Their purpose is to achieve a better
integration
of young persons in the life of the commune. In this connection, an
advisory council attached to the administration of the canton
of Lucerne that
provides communes and regions with information on ways of promoting the
participation of young persons. Lastly,
in the canton of Bern, for example the
question of lowering the voting age from 18 to 16 at the commune level is being
discussed.
2. The child’s right to be heard
112. The right to be heard is guaranteed by
articles 29 and 30 of the Federation Constitution, as well as by article 14 of
the International Covenant on Civil and Political Rights and article 6 of the
European Convention on
Human Rights. It has also been given effect by the three
Federal Acts on criminal procedure and by the 26 cantonal codes of criminal
procedure. As a procedural rule, the right to be heard comes under the
legislative competence of the cantons, subject to the procedural
rules contained
in federal law.
113. Provided that they are capable of forming their
own views, children may be parties to a proceeding. They may also take legal
action - either alone or through a representative of their choice, even without
the consent of their legal
representative[76] - if the
case concerns one of the rights inherent in their personality. Generally
speaking, it may be said that children and young
people are heard when their
situation is directly affected by proceedings or a certain measure.
114. Although the practice of the cantons differs in the way hearings of
children are organized in proceedings of concern to them,
it may be noted that
particularly important hearings are arranged by specialized services or experts
in the field of social work,
education, psychology or psychiatry.
115. The cantons have adopted a pragmatic approach in determining the
age limit for hearings, which may differ slightly from one canton
to another.
In criminal law cases, the cantons frequently use the age of compulsory
schooling, which also coincides with the age
of criminal responsibility - fixed
at seven years.[77] In the
case of child protection measures and problems of ill-treatment, children under
school age must also be questioned, account
being taken of their capacity to
form their own views and ability to express themselves. Certain cantons hear
children from the
24th
month,[7] others from
“about three
years”,[7] and yet
others refer to “kindergarten
age”.[80] In all
cases, the cantons take into account the specific situation and development of
the child. In order to obtain genuinely useful
results, hearings are arranged
so as to respect the child’s world. For example, small children are heard
by an expert (social
worker or psychologist) in a place familiar to them and in
the presence of a person whom they trust, and use may be made of accessories
that reassure them.[8] The
results of the questioning are often presented in the form of an expert’s
report and not a legal record. Video recordings
are frequently made of hearings
so as to avoid subjecting the child to repeated questioning.
(a) Divorce proceedings
116. The recent amendment of the divorce and
filiation law has considerably improved the position of children in family law
proceedings
by expressly guaranteeing their right to be heard.
117. Judges must take into account the child’s views in divorce
proceedings at the time they attribute parental authority and
settle the
question of personal
relationships.[8] To this
end the child should be heard by the judge or by a third party appointed for
this purpose.[83] The
hearing should take place in suitable conditions, reflecting the child’s
needs. The nature of the hearing depends essentially
on the age, intellectual
development and personal characteristics of the child. The age of the child and
other important considerations
(such as the child’s refusal to be heard)
may justify dispensing with the hearing.
118. Moreover, the child has the
right to submit an application for the modification of the attribution of
parental authority when
justified by important new facts in his or her
interest.[84] The judge may
also, if justified by circumstances, order that the child should be represented
by a guardian, particularly when the
mother and father disagree about the
attribution of parental authority, or when required by the tutorship authority
if there are
doubts about the validity of the shared views of the father and
mother concerning the attribution of parental authority or the way
in which
personal relationships are regulated or where they justify examination of the
need to order a protection measure for the
child.[8] At the request of
a child capable of forming his or her own views, the judge may, on the other
hand, order guardianship ad
litem.[8] The guardian
may submit views in the divorce proceedings and appeal decisions relating to
attribution of parental authority, essential
questions concerning personal
relationships or protection measures for the
child.[87] Procedural costs
and expenditure may not be chargeable to the
child.[88]
119. Judges,
even when specialized in divorce proceedings or having training in educational
psychology, may consider it necessary
to call in psychologists or psychiatrists
for a more detailed expert opinion. They will not hesitate to call upon such
experts where
necessary, particularly in cases of confrontational divorce
proceedings.
(b) Procedure in respect of child protection measures
120. In proceedings involving child protection
measures, article 314 (1) of the Civil Code states that before ordering a
protection
measure for the child, the tutorship authority or the third party
designated for this purpose shall hear the child personally and
in an
appropriate manner, insofar as the child’s age or other important
considerations do not militate against a hearing.
121. These measures are
ordered by a civil court judge who, in addition to legal training, has received
supplementary training in
educational psychology. More detailed inquiries into
the situation of children and young people are often undertaken by experts
with
specific training and experience - usually social workers, educators,
psychologists and/or psychiatrists.
122. The interests of children are
taken into account on the basis of the statements of parents or guardians ad
litem. The children themselves are heard personally when they are
considered to be capable of forming their own views, particularly in
the event
of disagreement between the parents and the
child.[89] Children are
heard in particular in cases where they are separated from their family.
Children placed in a foster family or an
institution are questioned regularly
about their feelings in the
matter.[90] Moreover, in the
context of protection measures experts (psychologists or psychiatrists) are
often responsible for children who
can then also express their views through
them.
(c) Establishing or challenging filiation, maintenance and change of name
123. Children maybe parties in proceedings to
establish or contest
filiation,[91]
maintenance[92] and change of
name.[93] In principle they
are represented by the person holding parental authority. In the event of a
conflict of interests between the
child and his or her legal representative, a
guardian ad litem[94]
should be appointed for the child in accordance with article 306 (2) of the
Civil Code. Children capable of forming their own views may act alone in
proceedings to establish paternity, to challenge filiation
and to change their
name in view of the strictly personal nature of the rights involved.
(d) Adoption procedure
124. In this respect the reader is referred to
the developments concerning adoption which are covered in the analysis of the
implementation
of article 21 of the Convention. It should be added, however,
that children are invariably involved in discussions concerning their
adoption.
Furthermore, under Federal
law,[95] the consent of a
child capable of forming his or her own views is necessary.
(e) Criminal proceedings
125. In criminal proceedings any physical
person, whether a minor or of age, has the right to be heard.
126. The
questioning is almost always conducted by persons who are particularly alive to
youth problems and who have appropriate training
- usually juvenile magistrates,
police officers with specific training or possibly by experts such as social
workers, or psychologists.
The child need not be heard in connection with minor
offences.
127. Police investigations are often conducted by specially
trained police officers. Most of the lawyers and juvenile magistrates
have
legal training which may be supplemented by other training in special fields
connected specifically with work with children.
In the juvenile courts,
educators or psychologists are often seated next to the juvenile magistrate.
Childrens’ lawyers and
juvenile courts are often assisted by social
workers, social educators and/or psychologists who conduct expert inquiries at
the request
of the judge (such inquiries may also be entrusted to services with
adequate resources, such as offices for minors or psychosocial
services for
children and young people).
128. It should also be mentioned that the
new draft federal bill governing the criminal status of minors (P-CPMin)
strengthens the
position of children in criminal proceedings by granting them
the right to be heard personally. Moreover, the draft amendment of
the general
part of the Criminal Code (P-CP) grants minors capable of forming their own
views the right to lodge a complaint.
(f) Procedure under the heading of offences against sexual integrity
129. As regards the problem of hearing child
victims of offences against sexual integrity or of ill-treatment in the
family unit,
it has been found that repeated hearings and unsuitable questioning
may traumatize the child even
further.[96] In order to
prevent the child from experiencing a second psychological shock, called
“secondary victimization”, all
the cantons take steps to ensure that
this hearing is of a suitable nature and is conducted by the competent authority
or an expert.
In order to spare children repetitive questioning or painful
confrontations, video recordings are often made of their
statement.
130. It may also be noted that the Swiss Government has
submitted to Parliament an amendment to the Act concerning Assistance to Victims
of Offences (LAVI), which improves the protection provided to minors of under 18
years of age and in particular is intended to mitigate,
through procedural
measures, the traumatism that legal proceedings may cause to child victims of
sexual offences.
131. In all cantons, investigations in this sensitive
area are conducted by police officers who have received training or specialized
training that prepares them specifically to work with children or young people
in difficulty. Furthermore, the victims are taken
care of by experts.
(g) Asylum proceedings
132. See the commentary relating to article 22
of the Convention for information about the hearing of children in the context
of asylum
proceedings.
IV. CIVIL RIGHTS AND FREEDOMS (arts. 7, 8, 13-17 and 37 (a))
A. Name and nationality (art. 7)
1. Registration and name
133. Live
births are registered in the register of
births,[97] as are
stillbirths after the sixth month of pregnancy. Births in hospital must be
declared by the hospital authorities. Similarly,
when a child is not born in a
hospital or institution, the mother’s husband, the midwife, the doctor,
anyone else present at
the birth and the mother are required to declare the
birth.[98] The discovery of
a foundling or abandoned child of unknown or uncertain parentage is also
registered in the register of
births.[99]
134. Every
newborn has one or more first names and a surname, which immediately confer on
the child an identity of his or her
own.[100] It should be
pointed out that Swiss law protects the child’s right to have a first name
that is in his or her best interests,
in that the registrar may refuse to accept
first names that are obviously prejudicial to the child’s
interests.[101] The
Federal Court has stressed on several occasions that the sole deciding factor in
the choice of the child’s first name
is the child’s good, not the
parents’ religious views or need for originality.
2. Right to know one’s parents
135. Swiss family law permits a child for whom
no one has claimed paternity to initiate filiation
proceedings.[102] This is
a strictly personal right that the child may exercise only if he or she is
capable of forming his or her own views. If
that is not the case, action must
be taken by a legal representative and a guardian ad litem will be
appointed even if the mother has parental authority, in order to avoid any
conflict of interest between the child and the
parent.[103]
136. The
child’s right to know his or her biological parents is now expressly
recognized in the Federal Constitution, article 119, paragraph 2 (g) of which
stipulates that every person shall have access to information on their
parentage. Thus, an
adopted child theoretically has a right to obtain a birth
certificate.
137. Article 27, paragraph 2, of the Federal Act concerning
Medically Assisted Procreation of 18 December 1998
(LPMA)[104] provides that
“where a child of any age can show a legitimate interest, he or she has
the right to obtain all the information
on the donor”. A child over the
age of 18 can automatically obtain information on the donor’s identity and
physical
appearance (para. 1) without having to prove a particular
interest.
3. Child’s right to be cared for by his or her parents
138. With regard to the child’s right to
be cared for by his or her parents, the Swiss Civil Code places primary
responsibility
on parents for the protection and education of their children.
At birth, children are subject to the parental authority of their
parents if the
latter are married,[105] or
of their mother if she is not married to the
father.[106] No outside
authority may intervene unless the child requires protection because his or her
development is jeopardized and the father
and mother do not rectify matters
themselves.
4. Nationality
139. The children of a Swiss father or mother
automatically acquire Swiss nationality at birth. Children recognized by a
Swiss father
acquire Swiss nationality by means of a simplified naturalization
process.
140. On acceding to the Convention, Switzerland entered a
reservation concerning its nationality legislation, “which does not
grant
a right to acquire Swiss nationality”, as the way in which the former
Federal Constitution allocated competence in naturalization matters between the
Confederation, the cantons and the communes did not permit the Confederation
to
stipulate, solely on the basis of federal law, that stateless children could
acquire Swiss citizenship. However, since entry
into force of the new
Constitution, the legal situation has changed in that the Confederation is now
responsible for facilitating the naturalization of stateless children
(art. 38 (3)). The revision of the legislation on nationality to give
effect to this constitutional mandate will make it possible
for the situation to
be evaluated
afresh.[107]
B. Preservation of identity (art. 8)
141. The right of the child to preserve his or
her identity, including nationality, name and family relations as recognized by
law,
without unlawful interference is guaranteed in Switzerland by the
Constitution and legislation.
142. Under Swiss law, preservation of
identity follows from protection of the inherent rights of the person. At
the level of the
fundamental rights guaranteed by the Federal Constitution,
protection of the inherent rights of the person stems, in particular, from
personal freedom (art. 10) and human dignity (art. 7).
Moreover,
protection of privacy can be inferred from article 13 of the
Federal Constitution and article 8 of the European Convention on
Human Rights. At the legislative level, identity is also protected by
the Civil Code
(art. 28 et seq.).
143. The child’s name and Swiss nationality are entered in the records
kept by the registrar.[108]
The child’s name is entered in the register of births in the place of
birth.[109] Information
relevant to Swiss nationality is entered in the family register kept by each
commune (district of a canton), which includes
all
citizens.[110]
Registration as a citizen of the commune in the family register thus provides
evidence of the child’s nationality.
144. Under article 45 of the
Civil Code, only a judge can order the correction of an entry, and only in the
case of inaccuracies resulting
from an obvious oversight or error. In such
cases, the correction must be recommended by the supervisory authority. The
civil registers
are supervised by the cantons, which have to ensure that
registry offices are inspected every year; the registry department of the
Federal Department of Justice and Police carries out inspections in the
cantons.[111] Complaints
about administrative acts by the registrar may be submitted to the cantonal
supervisory authority within 10 days of learning
of the act. This procedure is
free of charge.[112] Any
person whose legal interests are affected by the administrative act is entitled
to challenge it. If strictly personal rights
are involved, minors capable of
forming their own views may act alone, even without the consent of their legal
representative. An
ad hoc guardianship ad litem may in that case be
established by the tutorship authority.
C. Freedom of expression (art. 13)
1. Principle
145. Freedom of
expression is enshrined in article 16 of the Federal Constitution. In
international law, it is guaranteed by article 19 of the International Covenant
on Civil and Political Rights and by article
10 of the European Convention on
Human Rights. It is the right of every person, whether natural or legal,
foreign or national, minor
or adult. Freedom of expression is the foundation of
every democratic State, as to allowing people freely to form their opinions
is
essential for the full exercise of
democracy.[113]
146. This
freedom comprises the freedom to form an opinion, the freedom to hold an opinion
and the freedom to communicate it to others.
The right to form an opinion
implies the right to receive, without interference from the State and
irrespective of borders, opinions
and information and to seek information from
sources accessible to
everyone.[114] It
therefore presupposes the existence of a right to
information,[115] as it is
obvious that one must be able to obtain information in order to form an
opinion.
147. The area protected by freedom of expression covers all the
“products” or messages of human thought, including feelings,
reflections, opinions, information and so
on.[116] All means of
communicating messages are protected - speech, writing and artistic form. In
this respect, it should be noted that
freedom of expression is also the source
of other fundamental rights, such as cinematic, artistic and scientific freedom.
148. It is clear that schoolchildren, students and apprentices also
enjoy freedom of
expression.[117] Teenagers
should be introduced to the exercise of fundamental rights at school: schools
also have the task of developing independent
minds, a critical faculty and the
ability to
express oneself, all of which will allow the young person to become more
mature. Children who learn at school not to be afraid to
express their opinions
and suggestions will be well prepared in the future to broach the broader area
of political and cultural thinking.
School helps to create a climate of mutual
respect.
2. Possible restrictions
149. Like all other individual freedoms,
freedom of expression may also be subject to restrictions. To be lawful, these
restrictions
must meet certain requirements: they must have a legal basis, be
in the public interest or protect a fundamental right of others,
be proportional
to the objective sought, and not violate the inviolable core fundamental rights
(FC, art.
36).[118]
150. In
the case of freedom of expression, it is generally a question of balancing the
public interest in the maintenance of order,
the public interest in freedom of
expression and the private interests of the person involved. Freedom of
expression should respect,
in particular, the limits laid down by criminal and
civil
law.[119]
151. In
criminal law, restrictions are mostly justified by the need to protect a
person’s honour, young people and the
peace.[120]
152. In
civil law, article 28 et seq. of the Civil Code protect persons against
unlawful attacks, including in the press: the right to reparation, temporary
measures
to prevent an attack and the right of reply are
covered.
153. Control is generally exercised after the event; film
censorship and temporary measures taken by a judge to prevent an imminent
and
serious attack on personality rights are among the few exceptions to the
rule.
154. In addition, the freedom of expression of certain categories
of persons (such as civil servants or prisoners) may, because of
their
particular relationship to the State, be subject to further restrictions or
prior vetting. For example, prisoners may exercise
their freedom of expression
and their right to receive information from generally accessible sources
provided that order and security
in the prison are not affected.
155. In
the present context, it is important to mention the following case, from the
canton of St. Gallen in the
1970s.[121] A student had
written an article for the school newspaper which was intended to be satirical
but which was adjudged to be an attack
on freedom of belief and
worship.[122] As a result,
disciplinary measures were taken against the student. In this case, the Federal
Court specified that the freedom of
expression of schoolchildren could be
limited “insofar as the aims or effective functioning of the school so
required”,
but that students are not bound by the world view and
philosophy of the school they attend. They can express different views without
fear of punishment as long as they do so by lawful means and their behaviour
does not create a disturbance detrimental to the effective
functioning or aims
of the school. In this case, the Federal Court upheld the student’s
appeal and ruled that the disciplinary
measure was disproportionate and inimical
to freedom of the press and speech.
D. Access to appropriate information (art. 17)
156. Switzerland recognizes the important role
of the media and ensures that everyone, including children, has access to
information
and material from various national and international sources. In
Switzerland, the right to information stems from the freedom of
expression
guaranteed by article 16 of the Federal Constitution (see below).
1. Books and electronic media for children and young people
157. Every school in Switzerland has its own
library, which is stocked mainly with books for children and teenagers.
Moreover, in
many classrooms there is a book corner or small library with a
selection of books suitable for the age of the children concerned.
In every
class, in fact, books for children and teenagers are used to introduce certain
subjects. Teachers in most cantons can
also call on the services of educational
centres.
158. Alongside the different cantonal libraries, a vast network
of general public libraries has been built up; these libraries are
run mostly by
communes or associations of communes. The books loaned by the
Bibliothèque pour tous (“library for all”)
allow small
libraries to refresh and expand their collections at little expense. Mobile
libraries offer an original service, particularly
in the canton of
Neuchâtel: making regular trips to serve remote places, they offer
reading matter for people of all ages.
159. All cantonal study programmes
include an introduction to the use of electronic media. Many cantons offer a
“media awareness”
course as such, especially in the last years of
primary school. In the higher grades, an introduction to information technology
and electronic media is usually a compulsory subject, and sometimes an optional
or additional one. In this respect, it should be
pointed out that many cantons
make a special effort to use electronic media in basic or in-service teacher
training, as well as to
build up the necessary infrastructure.
160. By
way of example, the canton of Geneva has set up book and multimedia resource
centres in every school. As part of its anniversary
celebrations, the canton of
Aargau connected the schools in 200 out of 232 communes to the Internet. The
canton of Basel encourages
the use of electronic media in schools through the
NIKTA@BAS (new information and communications technology in schools in Basel)
project. Generally speaking, it can be said that there is a growing trend for
children to have access to the various media (books,
pictures, video, computers,
the Internet, etc.) in the course of their normal school day.
2. Measures taken to encourage the
production and dissemination
of children’s
books and electronic media
161. Measures are
regularly taken at both the federal and cantonal levels to encourage the
production and dissemination of children’s
books.
162. The
Confederation offers support to organizations working to produce and
disseminate literature for children and young people.
For this purpose,
the Federal Office for Culture makes funding available to promote
children’s and young people’s literature.
The aim
of these
promotional measures is to nurture and cultivate children’s and young
people’s pleasure in reading and languages.
The following
apolitical, non-denominational and nonideological organizations are among those
receiving annual financial assistance:
Schweizer JugendbuchInsititut, Ligue
Suisse de littérature pour la jeunesse, Oeuvre suisse des lectures pour
la jeunesse
and Livres sans frontières Suisse. A total of Sw F
180,000 was paid out in 1985, Sw F 250,000 in 1990, Sw F 289,000
in 1995
and Sw F 285,000 in 1999.
163. The Confederation, in
accordance with the Federal Act concerning the Encouragement of Extra-curricular
Youth Activities
(LAJ),[123] also supports
and encourages many national projects and activities, with a view to improving
the quality of information aimed at
children and young
people.[124] In this
context, mention should be made of an Internet site set up for young people by
young people. All information carriers,
whether they are one-off or periodic
publications (books, magazines, pamphlets, information packs, video cassettes,
etc.), are eligible
for support, as are information activities aimed at the
general public (through the press, radio and television). In accordance
with
the legal provisions, support of this kind is given to nationwide projects
involving extracurricular activities and the active
participation of young
people.
164. Moreover, all cantons support, or themselves organize,
activities to encourage reading. For example, every year Uri organizes
about
10 events to encourage reading; Basel is setting up a “book
boat” for various school grades; Lucerne, Bern and
Zürich regularly
offer schools the chance to present authors’ readings; Bern publishes the
quarterly magazine Bücherbär, which gives information on new
publications; and Solothurn has appointed a cantonal officer in this area and
publishes, together
with the canton of Aargau, a school periodical containing
information on this subject.
165. Most cantons support, on a case-by-case
basis, the production and dissemination of books for children and teenagers by
contributing
to production costs from their cultural budget. Graubünden,
for example, particularly encourages the production of books for
young people in
Romansh and Italian (two minority languages in Switzerland), by subsidizing the
associations that promote these two
languages.
3. Radio, television and the press
166. The independence of radio and television
programme makers and freedom of the press are guaranteed by articles 17 and 93
of the
Federal Constitution. The Confederation therefore has no power directly
to influence, for example, radio and television programming or articles and
reports
appearing in the written press. Basically, those responsible for radio
and television programmes are not bound by federal, cantonal
or communal
directives, although they must comply with the legal guidelines drawn up by the
Confederation.
167. Programmes for children and young people are a staple
ingredient of the programmes on public radio and television stations.
Some
examples are:
− “Oops”: this programme for children and young people was first broadcast in 1998 by the Swiss-German television station SF DRS; it consists of programmes aimed mainly at the 1525 years age group and is broadcast from Monday to Friday
(from 5 p.m. to 7.30 p.m.). “Oops” aims “to
inform by entertaining and to entertain by informing”, and allows
no
depictions of violence or pictures encouraging gender or racial
discrimination;
− “Radio 3fach”, a local radio station in Lucerne run by young people for young people, has no advertising and began operating in summer 1998;
− Radio 105 Network, a private radio broadcaster in German-speaking Switzerland, is also aimed specifically at a young audience, as is clear from the content of its programmes, and has a concession along precisely those lines. According to the concession (awarded on 16 June 1997), the channel should help young people freely to form their own opinions, provide them with objective information and contribute to their cultural development and entertainment;
− The “SwissHits” private television channel broadcasts a special programme in German-speaking Switzerland. The programme consists largely of musical clips and gives viewers information about various cultural events, particularly in the area of music for young people. This information is varied, takes young people’s wishes into account and encourages their cultural development. The Federal Council awarded the concession for this new programme on 24 February 1999;
− The new Swiss-German radio station “Virus” has been broadcasting a special youth programme since autumn 1999. According to the concession awarded on 17 February 1999, the youth programme, which is broadcast by satellite, should take into account the wishes of young people and encourage their cultural development.
4. Protection measures
168. Switzerland has taken many measures in the
area of the media to protect children and young people.
169. As far as
protection measures in the area of radio and television are concerned, in
addition to the indirect protection measures
mentioned above (including a check
on the content when considering an application for a concession), the Government
retains certain
means of influence, depending on the nature of the programme, at
both the national and the international level.
170. At the national
level, article 18 of the Federal Act concerning Radio and Television stipulates
that the Federal Council may
ban certain advertisements in order to protect
young people and the environment. The Ordinance on Radio and
Television[125] bans
advertisements that exploit children’s natural credulity or
teenagers’ lack of experience, or that take advantage
of their fondness
for certain things (art. 15 (e)).
171. At the international level, the
European Convention on Transfrontier
Television[126] sets
certain minimum standards for television programmes. According to article 7,
paragraph 2, of the Convention, no programme that
is likely to impair the
physical, mental or moral development
of children or adolescents may be
broadcast when, because of the time of transmission and reception, they are
likely to watch it.
Moreover, article 11, paragraph 3, stipulates that
advertisements addressed to or using children must avoid harming their interests
and must have regard to their special
susceptibilities.[127]
172. With
regard to the depiction of violence, article 135 of the Criminal Code makes it
generally a punishable offence to produce
or supply pictures showing acts of
cruelty towards human beings or animals without any defensible cultural or
scientific merit.
This norm, however, is not a protective measure aimed
exclusively at children and young people, as it specifies no age
limits.
173. Exposing young people to pornography has been punishable
under the Criminal Code since 1 October 1992. Anyone offering, showing
or
making accessible or available to a person under the age of 16 pornographic
writings, audio or visual recordings, pictures or
other objects or pornographic
performances is punishable under article 197 of the Criminal
Code.[128] Children under
the age of 16 are protected from any contact with pornography. Criminal law
also prevents individuals from being
confronted against their wishes with images
having a sexual content, including, for example, certain photographs on
news-stands or
outside cinemas.
5. International cooperation and global learning
174. As mentioned above, Switzerland is very
active within the framework of international
cooperation, including in the
area of information and children, through the Swiss Agency for Development and
Cooperation.
175. Switzerland also tackles this issue through the
Education and Development Foundation, which is a national foundation supported
by the Confederation, the Conference of Cantonal Directors of Education,
teachers’ associations and private aid agencies.
The Foundation has set
itself the task of promoting and establishing “global learning” in
Swiss schools. Its main themes
are human rights, multiculturalism, education
for peace, North-South relations and sustainable development. It provides
information
and advice, lends and sells teaching material and offers basic and
continuing training courses. It is aimed at teachers at all
levels.
176. Switzerland has also signed the Council of Europe’s
partial agreement concerning the upkeep of the European Centre for
Global
Independence and Solidarity (North-South Centre in Lisbon), which pursues the
same aims as the Education and Development Foundation.
E. Freedom of thought, conscience and religion (art. 14)
1. Principle
177. Freedom of
conscience and belief is enshrined in article 15 of the Federal Constitution.
It is also guaranteed in Switzerland by article 18 of the International Covenant
on Civil and Political Rights and article 9 of
the European Convention on Human
Rights. Like every other fundamental freedom, it applies to all natural
persons, whether they are
foreign nationals or Swiss citizens. In certain
circumstances, it can also be claimed by legal persons.
178. Every
belief concerning the relationship between a human being and a transcendent
reality and which has an ideological dimension
is protected, regardless of its
nature (even if it is atheistic). Freedom of conscience and belief covers the
individual’s
right to take decisions on religious questions completely
independently and without State interference. No one can be forced to
join a
religious association, receive religious instruction or perform a religious act,
or be penalized for religious reasons.
179. The cantons are free to
determine their relations with churches, while respecting freedom of conscience
and belief. They may
designate one or more churches as “official
churches” and may, for example, take it upon themselves to pay the
ministers.
The Constitution also protects the right to change
religion.[129]
180. Religious
freedom also applies in marital
relationships.[130]
181. As far as children are concerned, article 303 of the Civil Code
stipulates that the holder of parental authority or guardianship
determines
(subject to the principle that no one may be forced to take a religion) the
religious education of his or her children
(or wards) up to the age of 16, at
which point children may freely choose their religion.
182. The religious
neutrality of State schools is another result of the general guarantee of
freedom of conscience and belief. Thus,
education in State
schools,[131] which is
compulsory and free, must be neutral from a religious viewpoint. Indeed,
religious neutrality is particularly important
in State schools, as education is
compulsory for all, with no distinction as to religion. The aim of this
provision is to ensure
respect for the feelings of individuals with different
beliefs, to strengthen the right attributed to parents in article 303 of the
Civil Code and to protect children from any pressure when they come to choose a
religion upon reaching the age of
16.[132]
183. The
principle of religious neutrality applies to State schools at all levels. All
pupils must be able to follow the courses
provided by these schools,
without prejudice to their freedom of belief and conscience. The teaching must
make no distinction between
religions, offend any religious belief or impose any
religious behaviour. Any educational content, method or organization that has
a
religious bias or is antagonistic towards religious beliefs would be
unconstitutional.[133]
Consequently, any denigration of particular religions or religious
beliefs, either in the way schools are organized, in what the
teacher says
or in school books, would violate freedom of conscience and belief,
whether the violation is deliberate or not.
184. That is not to say
that the teaching should be non-religious or shorn of all reference to religion,
but freedom of conscience
and belief implies that religious instruction should
be a separate, optional subject. It is only if students are forced to have
religious instruction that their freedom of conscience and belief is violated.
In recent times, some cantons have introduced compulsory,
non-denominational
religious lessons for all pupils. The lessons are organized in such a way that
children of different religions
can follow them without their freedom of
religion being infringed.
2. Examples from Federal Court case law
185. The Federal Court handed down a decision
in 1993 in the case of a pupil who had been excused from biblical history
lessons at
the request of his parents. The school headmaster decided that the
pupil could do other work in the classroom during those lessons.
The
pupil’s parents tried unsuccessfully to have him moved to another room
during those particular lessons, but their appeal
to the competent cantonal
department of education was dismissed on the grounds that biblical history did
not constitute religious
education within the meaning of article 49 of the
Federal Constitution. The Federal Court, however, held that biblical history
lessons did indeed constitute religious education, as their subject was
the
relationship between humans and a divinity. According to the Federal Court,
even a non-denominational or interdenominational
lesson in this area constitutes
religious education.
186. The Federal Court has been quite strict in its
application of the principle of religious neutrality. It recently rejected an
appeal by a woman teacher in Geneva who had been ordered by the cantonal
authorities not to wear a Muslim headscarf during
lessons.[134] The Federal
Court stressed that keeping the religious peace took precedence over an
individual’s right to wear a religious
symbol and that the order not to
wear the Muslim headscarf also protected the rights of pupils and parents. The
judges stressed
the particular importance of religious neutrality in primary
school, given the great susceptibility of young children. It should
be added
that the teacher subsequently appealed to the European Court of Human
Rights.
187. With this judgement, the Federal Court reaffirmed its
position on religious freedom. In 1990 it had banned the hanging of a
crucifix in a classroom, on the grounds that it went against the principle of
religious neutrality in
school.[135] The Court
found that the State, as the guarantor of the religious neutrality written into
the Constitution, should avoid being identified with a minority or majority
religion by ignoring different beliefs. According to the Court, the sight
of a
religious symbol in a classroom might offend the religious beliefs of a person
not belonging to that religion.
3. Lawfulness of restrictions on freedom of conscience and belief
188. Pursuant to article 36 of the Federal
Constitution, any restriction on a fundamental right must have a legal basis, be
in the public interest (public order, public safety, public health
or morality)
or protect a fundamental right of others and be proportional to the objective
sought.
4. Religious minorities: Federal Court case law
189. Freedom of conscience and belief also
covers the rights of religious
minorities.[136] As
pointed out by the Federal Court, it is above all through tolerance that freedom
of conscience and belief can be guaranteed at
school.[137] Below are a
few examples of decisions by the Federal Court on the lawfulness of restrictions
on this freedom, which also address
the problem of minorities’ freedom of
conscience and belief.
(a) In its decision 114 Ia (1988) 129, the
Federal Court upheld an appeal concerning the violation of the freedom of
conscience,
belief and worship of a member of the Worldwide Church of God, who
had asked that his daughter be excused from school for five days
during the
Feast of Tabernacles. The competent school authorities had authorized only four
days’ absence, drawing an analogy
between the feast days observed by
members of this church and those observed by Jews. The Federal Court held that,
even if the disruption
to the child’s education might be considerable if
the absence lasted for several consecutive days, it was difficult to argue
that
the disruption would be significantly worse for an absence of five or six days
rather than four. Moreover, permission to be
absent from school for four days
was of no use to the appellant, who needed one more day if he was to comply with
the precepts of
his religion, which required him to celebrate the Feast of
Tabernacles for eight days with the community (usually abroad). According
to
the Federal Court, if the absences authorized annually for the members of a
religious community do not exceed those granted by
the canton of Zürich to
followers of the Jewish religion, who benefit most in this respect, the
principle of proportionality
would be undermined by refusing to authorize a
five-day absence from school on the grounds that Jewish children never need to
seek
authorization for more than four days running. For the appellant, the
decision to authorize an absence of four, rather than five,
days made a big
difference and was a serious attack on his freedom of belief, conscience and
worship. Moreover, from an educational
point of view, any inconvenience caused
by the authorization of an extra day did not seem significant. In the light of
the foregoing,
the Federal Court ruled that the refusal to grant the
authorization requested caused disproportionate damage; the decision that
violated
the freedom of belief, conscience and worship was therefore
overturned.
In the case dealt with in Federal Court decision 119 Ia
(1993) 178195, a Muslim had requested, on religious grounds, that his daughter
be excused from compulsory swimming lessons at primary school. After all the
authorities in the canton of Zürich rejected this
request, the Federal
Court upheld the father’s appeal, stating that it was incompatible with
freedom of conscience and belief
to force a little girl to take part in a
compulsory swimming lesson, which would mean she had to appear in a swimming
costume in
front of other people. The Court affirmed that the prohibition
observed by orthodox Muslims on mixed-sex swimming came within the
area of
religious freedom protected under article 15 of the Federal Constitution and
article 9 of the European Convention on Human Rights. The following excerpt
from the decision is particularly interesting:
“The constitutional
guarantee of religious freedom does not only protect the religions of Western
Christian churches or communities;
protection extends to all religions,
irrespective of the number of followers in Switzerland. The Muslim religion is
therefore protected.”
(b) Another case concerns a young girl
banned by a school board from wearing a Muslim headscarf in a non-fee-paying
primary school.
The competent cantonal department had upheld the appeal by the
girl’s father, basing its decision on the position taken by
the Conference
of Directors of Education of the French-speaking cantons and Ticino,
which had authorized, in 1996, the wearing of traditional religious
objects (such as crosses, skull caps or headscarves). The Administrative
Court
of the canton of Neuchâtel rejected the appeal by the school board against
the Department’s decision, noting that
the secular duty of State schools
did not mean it was the school’s task to prevent contact between different
religious beliefs.
In the case in point, according to the Court, the school
board’s decision might lead to serious conflict between the pupil
concerned and the school, and also between the pupil and her family. The Court
therefore believed that the pupil’s education
might have been compromised
by the board’s decision and authorized the girl to wear her headscarf at
school.
190. In conclusion, it can be stated that exemptions relating to
absences, the practice of sports, clothes and other matters are granted
very
easily, even
systematically.[138] It
should be noted that care is also taken to ensure that the children concerned do
not have a gap in their education as a result
of being excused from a lesson.
Some cantons have issued guidelines and recommendations in this respect for
local education
authorities.[139]
F. Freedom of association and peaceful assembly (art. 15)
1. Freedom of association
191. In Switzerland,
freedom of association is guaranteed both by the Federal Constitution (art. 23)
and by international law, in article 22 of the International Covenant on Civil
and Political Rights and article 11 of the
European Convention on Human Rights.
Freedom of association includes the right freely to establish (or disband)
associations, to
join and be a member of one and to take part in the
association’s activities.
192. This right applies to every person.
Children also have this freedom, whether they are of Swiss nationality or
not.
193. Freedom of association may be subject to restrictions provided
that the latter respect the principles of legality, public interest
and
proportionality (FC, art. 36), freedom of association is therefore liable to be
restricted if it represents a really serious,
clear and present
danger.
194. In Switzerland there are a great many organizations for
children and young people in which young people themselves are directly
involved. One organization that should be mentioned in particular is the Swiss
Council of Youth Activities, an umbrella organization
of youth organizations in
Switzerland, founded in 1931. Members of the Council come from very diverse
associations, such as religious
or political peace organizations, youth parties,
trade unions and occupational associations for young people, schoolchildren and
students, and student associations, the scout movement, environmental
associations, youth exchange organizations, youth centres,
etc.
2. Freedom of peaceful assembly
195. Freedom of assembly is enshrined in
article 22 of the Federal Constitution. It is also guaranteed in Switzerland by
article 21 of the International Covenant on Civil and Political Rights and by
article 11
of the European Convention on Human Rights. The right to freedom of
assembly is a vital part of the Swiss democratic system.
196. Every
natural person, including every child, has the right to freedom of assembly,
whether or not they are of Swiss nationality.
197. Every person therefore
has the right to meet with other people to pursue or reach a common goal,
exchange views or communicate
their views to third parties. Freedom of assembly
not only protects political meetings but also friendly scientific, artistic,
sporting
and leisure gatherings, the kind of gathering that usually concerns
children.
G. Protection of privacy (art. 16)
1. Principle
198. Article 13 of
the Federal Constitution provides for protection of privacy. Article 10,
moreover, which guarantees personal liberty, also provides protection against
illegal
attacks on a person’s honour and reputation. At the international
level, Switzerland is bound by article 8 of the European
Convention on Human
Rights and by article 17 of the International Covenant on Civil and Political
Rights, which provide guarantees
for privacy, family, home, correspondence and
reputation.
199. Under Swiss law, the basic right to privacy gives
everyone the right to organize his or her life and have relationships with
other
people without being prevented from doing so by the State; respect for intimacy
is thus also included.
200. The Federal Court applies mainly the
principles contained in article 8, paragraph 2, of the European Convention on
Human Rights,
according to which there can be no interference in the exercise of
the right to respect for private life “except such as is
in accordance
with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic
well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or
for the protection
of the rights and freedoms of
others”.[140] These
principles also guide Swiss legislation in the areas requiring State
intervention where that intervention has to be limited
to the strict minimum
required for the purposes of the legislation.
201. Broadly speaking, the
protection of children against infringements of their privacy may clash with the
rights of parents, especially
when the latter are the holders of parental
authority. Individual circumstances will determine whether the right of parents
to educate
their children or the protection of children’s privacy should
take precedence, and this applies to all areas of private life,
such as the
monitoring of personal relationships with third parties. In any case, the best
interests of the child will be the deciding
factor, with the child’s
opinion being given greater weight if he or she is already able to form his or
her own
views.[141]
202. In
relationships between individuals, the rules under civil law on the protection
of personality rights and those under criminal
law on the protection of honour
and secrecy, especially medical secrecy, introduce the restrictions on the
freedom of others that
are necessary to ensure respect for the life of
others.
2. Legal remedies
203. If the attack on personality rights is
carried out by private individuals, the provisions of article 28 et seq.
of the Swiss Civil Code permit the victim to take legal action. The victim of
an unlawful attack may request that the judge prevent
it if it is imminent, put
a stop to it if it continues, or declare it unlawful if the problem persists.
These rights relating to
the protection of the person are strictly personal
rights, which a child capable of forming his or her own views may invoke before
the courts even without the assent of his or her legal
representative.[142]
204. Although
under the current Criminal Code the injured party may file a complaint only if
he or she is over the age of 18 and capable
of forming his or her own views,
this situation is likely to change when the Swiss Criminal Code is revised, as
it is envisaged that
minors capable of forming their own views will be able in
future to file a complaint (revised Criminal Code, article 30).
3. Protection of the child’s correspondence and privacy
205. At the legislative level, the
child’s correspondence is protected by, in particular, article 179 of
the Criminal Code,
which punishes any unauthorized person who opens a
sealed envelope or parcel to find out what it contains. Listening in on
and recording
private conversations and violating secrecy or privacy using a
camera are punishable under article 179 bis et seq. of
the Criminal Code.
4. Protection of the child’s personal data
206. The Federal Act concerning Data Protection
of 19 June 1992[143]
contains principles applicable to both the public administration and to
individuals and protects the inherent rights of the person
and the fundamental
rights of the natural and legal persons on whom data are collected. Its
provisions can be invoked by any person
suffering an attack on his or her
personality rights, including children.
207. The Act applies to all
processing of personal data carried out by federal agencies or private
individuals (natural or legal persons).
It defines the general principles
applicable to data processing: lawfulness of collection, good faith,
proportionality, purpose
of the processing, data accuracy, guarantee of
personality rights and data security.
208. The Act establishes a federal
data protection officer, to monitor the implementation of the Act by federal
bodies and to advise
private individuals. Appeals against the decisions of
federal and cantonal data protection bodies should be submitted to the Federal
Commission for Data Protection. If the controller of the file is a private
individual, legal remedies are at the level of private
proceedings. However,
the decision at the highest level of appeal in the canton can also be challenged
before the Federal Commission
for Data Protection.
209. At the
international level, it can be mentioned that Switzerland is a party to the
Council of Europe’s 1981 Convention
for the Protection of Individuals with
regard to Automatic Processing of Personal
Data.[144]
210. In
the area of data registration for criminal offences, children between the ages
of 7 and 15 enjoy absolute protection, as any
measures or punishments they
may be subjected to are not entered on a police record, by virtue of article 12
of the Ordinance on
Computerized Criminal
Records.[145] Article 369
of the draft Criminal Code and the draft federal bill governing the
criminal status of minors provide for the recording
of only the most serious
penalties: for minors under the age of 15, only sentences involving placement
in a custodial institution
will be recorded (draft federal bill, art. 14 (2));
for minors over the age of 15, only those involving deprivation of liberty
(draft
federal bill, art. 24) or the above-mentioned placement will be
recorded.
211. With regard to children in care, whether they have been placed
with foster parents or in institutions, article 22 of the Ordinance
regulating
the Placement of Children stipulates that “all persons appointed to
supervise children in care must respect confidentiality
with regard to third
parties”.[146]
H. The right not to be subjected to torture or other cruel,
inhuman
or degrading treatment or punishment (art. 37 (a))
212. Article 10 of
the Federal Constitution stipulates that torture and any other cruel,
inhuman or degrading treatment or punishment are prohibited. Switzerland
is also required
to abide by the international guarantees pertaining
thereto, including those contained in the following instruments: the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment of 10 December
1984,[147] the European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment of 26 November
1987,[148] the
International Covenant on Civil and Political Rights (art. 7) and the European
Convention on Human Rights (art. 3).
213. Switzerland considers the
prohibition of torture and any other inhuman or degrading treatment to be a
fundamental principle of
public international law which should be respected by
every authority as a rule of jus
cogens.[149] Thus,
prosecution and punishment are based on the specific provisions of criminal law,
including the articles on
homicide,[150] physical
injury,[151] endangering
the life or health of
others[152] and attacks on
liberty (threats, coercion, illegal detention and
kidnapping).[153]
214. Detention
conditions in Switzerland are subject to various international monitoring
mechanisms - State party reports and the
communications procedure of the United
Nations Committee against Torture on the one hand, and, on the other, visits to
Swiss prisons
by members of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment. It should be
stressed that
Switzerland has been pressing for many years at the international level for the
addition of an optional protocol to
the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to
establish a visiting
procedure in national penal
institutions.
215. Although there have been reports of isolated cases
where the police have infringed the law in their treatment of individuals,
including some foreigners, during arrest and detention, there have never been
any such reports concerning children or young people.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. Parental guidance (art. 5)[154]
1. Reservation
216. Switzerland respects the responsibility,
the right and the duty of parents or, where applicable, the members of the
extended
family, guardians or other persons legally responsible for children, to
give them the guidance and counsel suited to the exercise
of their rights as
recognized by the Convention, in a form consonant with the development of their
capabilities.
217. Swiss law gives parents both the right and the primary
responsibility of directing the child’s education, and seeks at
the same
time to take account of children’s right to respect for their developing
personality. It is the parents’ responsibility
to determine the care and
the education to be given children “for their good” and to take the
necessary decisions “subject
to their capacity” (CC, art. 301).
Children owe obedience to their parents, who must, however, grant them
“freedom to
organize their life according to their degree of
maturity” and take account of “their opinion as far as
possible”
in matters of importance. Under article 302 of the Civil Code,
parents must bring up children according to their possibilities,
and promote and
protect their physical, intellectual and moral development. They are
responsible for an appropriate education and
may determine the religious
education the child receives until he or she reaches the age of
16.[155] They are,
moreover, required to cooperate with the school and with the “public and
charitable institutions for the protection
of young
people”.[156]
218. Switzerland’s
reservation to the effect that Swiss legislation concerning parental authority
remains reserved was not entered
because the Swiss legal system is incompatible
with the Convention; rather it was formulated because the Convention does not
give
a precise definition of the right of parents. The Swiss Government would,
however, be prepared to consider withdrawing this reservation
on the basis of
the Committee’s comments and possible recommendations on this
point.[157] At the
internal level it will be for Parliament to take a decision on the withdrawal of
this reservation.
2. Information on family structures in society
219. In the Swiss legal system, the
“family” is a flexible concept which covers different situations
depending on the
area considered (e.g. private law, tax law, registration of
foreigners or social legislation). In all areas, it is primarily the
purpose of
the legislation which determines who has rights and obligations and, in
particular, the relations which should be considered
as constituting a
“family”. In Switzerland, the “family” can however
generally be defined as: “a
social group of a particular kind, based
on relationships between parents and children, and recognized as such by
society, that is,
accepted as an
institution”.[158]
220. Thus,
the main characteristic of the family is the presence of children. This
definition enables all forms of family to be taken
into consideration, including
families comprising a mother or father bringing up their children alone, or
families where the children
live away from home for educational reasons.
However, it is not restrictive or legally binding.
221. Mention may also
be made here of the case law of the European Court of Human Rights relating to
the concept of “family
life”, (adopted by the Federal Court),
whereby protected links extend to relations “playing a determining role in
the
family”. This principle, which can be interpreted very loosely, makes
it possible to take account of the hypotheses and particular
needs of each
sphere of application of the law.
222. According to the 1990
census,[159] there were
1,399,011 children under the age of 18 at that time, 87.9 per cent of whom lived
in a two-parent household comprising
one or more children; 7.3 per cent of
children lived in a single-parent household and 2.2 per cent lived with an
unmarried couple.
Only 1.7 per cent of children under the age of 18 lived in a
collective household (children’s institution, etc.).
223. The number of
minors whose parents are divorced has increased steadily over the
last 50 years; there were 3,991 in 1950, 4,941
in 1960, 6,985 in 1970,
11,356 in 1980, 11,396 in 1990 and 13,642 in 1997, when custody was awarded
to the mother in 12,228 cases,
to the father in 1,316 cases, and conditionally
to the father (possibility of award to a third party)
in 38 cases.
224. The low proportion of births out of wedlock
is one of the characteristics of Swiss demographic patterns. In 1997, only 8
live
births in every 100 occurred out of wedlock. In the course of the century,
births out of wedlock initially decreased among very
young women; more recently,
a sharp increase has been observed after the age of 25. In 1997, unmarried
women giving birth represented
a group whose characteristics were different from
those of married women, in terms of place, nationality, residence or religion.
The largest number of births out of wedlock was to be found among women of
African nationality (about 17 per cent of births compared
with 8.9 per cent
among women of Swiss nationality). However, the proportion of unmarried women
among those giving birth in 1997
was low among Europeans (5.8 per cent), Asians
(5.3 per cent) and Americans (6.8 per cent). This proportion was higher among
Protestant
(9.0 per cent) than among Catholic women (7.2 per cent). It was 15.6
per cent among women with no declared religion, compared with
1.9 per cent of
Jewish women. The proportion of births out of wedlock was highest (12.5 per
cent) in Basel-Stadt and lowest in AppenzellInnerrhoden
(2.6 per cent).
B. Parental responsibilities (art. 18 (1) and (2))
1. Responsibility of parents
225. In Swiss law,
parental responsibility is delimited by the concept of parental authority, which
is the legal power of the parents
to take the necessary decisions for their
minor children. Parental authority is the legal basis for the education and
representation
of children, and the administration of their property by the
father and mother. Parental authority is exclusively directed at the
interests
of the child.[160] Under
article 301, paragraph 1, of the Civil Code, parents determine the care to be
given to the children, direct their upbringing
with a view to their best
interests and take the necessary decisions, subject to their capacity. They are
required to bring up the
children according to their possibilities and means,
and have the duty to foster and protect their physical, intellectual and
moral
development (CC, art. 302 (1)). The parents must provide for the
children’s upkeep, and consequently for the cost of their
education and
training and measures for their protection (CC, art.
276).[161] Persons who
violate their duty to assist or educate a minor whose physical or mental
development they have thus endangered, or who
have failed in this duty, are
punishable in accordance with article 219 of the Criminal Code. In 1996,
16 persons were sentenced
under this provision.
226. During marriage,
parents exercise joint parental
authority.[162]
227. As
regards divorced parents, article 133, paragraph 3, of the Civil Code grants
them the possibility of applying to the judge
for maintenance of joint parental
authority. The law imposes several conditions: the parents must submit for
approval an agreement
determining their share in the care of the child and the
apportionment of the costs of his or her upkeep, and must apply to
the judge together. The judge may only order the measure if it is compatible
with the child’s well-being. The child’s
best interests thus remain
the determining factor in the decision on parental
authority.
228. Unmarried parents may apply to the tutorship authority
for the award of joint parental authority, without distinction as to whether
the
parents live together or not. The determining factor should not be the fact
that they are living together, but the joint willingness
of the parents to
assume full responsibility for the child as long as this is compatible with the
child’s wellbeing. In their
application, the parents must submit for
approval by the tutorship authority an agreement determining their participation
in the
care of the child and the apportionment of the costs of the child’s
upkeep. The tutorship authority awards parental authority
to both parents
“provided this is compatible with the child’s well-being”.
The child’s interests therefore
remain the crucial factor in the
authority’s decision. The award of parental authority must also be
modified “when important
new developments so require for the well-being of
the
child”.[163]
2. State aid and assistance to parents
(a) Family guidance and parent training services
229. There are
numerous State or private services and institutions available to parents in
Switzerland, and in particular locally,
for any matter concerning the
child’s education or development. As a general rule, the institutions are
maintained by public
funds.
230. The State offers and finances certain
programmes. All services provided in the cantonal pregnancy consultation
centres, cantonal
or communal offices for equality between women and men,
cantonal or communal offices for the protection of young people and other
public
services, are financed by the State. Private organizations also offer
programmes. In some cases, they receive public subsidies,
even when they have
their own resources; their programmes are therefore financed on a joint
basis.
231. Under the Federal Act concerning Pregnancy Consultation
Centres of 9 October
1981,[164] the cantons
introduced family planning and consultation offices which offer free
consultations. All cantons have programmes for
future parents concerning
preparation for the birth and the new tasks involved in the care of an infant,
so that they will be in
the best position to face their new responsibilities.
Schools for parents and adult training centres offer a host of courses
specifically
concerning the various aspects of child development and schooling.
The objectives of these courses are all initially to help parents
to avoid
crisis situations, and subsequently to help them manage such situations should a
crisis arise.
232. Article 171 of the Civil Code requires the cantons to
make available to couples an office for consultation on any difficulty
encountered in their life together or their parental tasks.
233. The
schools provide for regular meetings between parents and teachers, so as to
inform parents about the education provided and
their child’s progress or
any difficulties he or she may have.
234. All the cantons offer a variety
of services in support of the educational efforts of parents. A large number of
State services
are readily accessible and provide specialists who are in a
position, where necessary, to accompany, support and advise parents:
child
psychology services, psychiatric assessments for young people, social services,
vocational guidance and advice services, remedial
teaching, advice from the
social services, and many more. Many of these services are not only available
to parents, but also to
educational institutions in order to help them solve
educational problems.
235. Possibilities of assistance and advice are
also offered by the communes or associations of communes.
236. A large
number of private associations and initiatives complement this assistance
offered to interested parents. Examples are
Pro Juventute’s letter to
parents, associations of parents of schoolchildren, associations for parent
training, marriage counselling
and parental advice services, religious
associations and services and counselling services for young families. These
private entities
often have support from the State.
237. The highly
populated cantons with urban
centres[165] have a very
dense and varied network of counselling services. The smaller cantons often
join with a central canton in order to be
able to offer certain services. In
eastern Switzerland, for example, the psychiatric service for children and young
people in St.
Gallen is available to the cantons of St. Gallen,
Appenzell-Innerrhoden and Aargau. Another example is the agreement signed
between
the canton of Nidwalden and the psychiatric service for children and
young people of Lucerne. When the need arises many cantons
also create
decentralized units so that the rural population can have the same opportunities
as those in the urban centres; examples
are the Bern regional educational advice
services, the regional centres of the Cantonal Office for Juveniles in Valais,
the Zürich
district and town secretariats, the Fribourg regional social
services, etc.
(b) Measures, structures and actions for very small children
238. The advisory services for parents of young
children are the product of both
State[166] and private
[167] initiatives. The
availability of follow-up services for small children varies from one canton to
another. Some cantons offer a
very broad range, while others are in the midst
of developing such
services.[168]
239. The
form the counselling and assistance services take and the responsibilities they
assume vary widely. The services offered
to young parents and their children
comprise opportunities for contacts and meetings, information, counselling and
follow-up provided
by specialists (social workers,
educationalists).[169]
(c) Information for parents
240. In the cantons and certain towns, offices
for the protection of young people or offices for juveniles publish information
bulletins
they send regularly to parents on the subject of child development,
both physical and psychological. The bulletins also contain
the addresses of
counselling services and parents’ associations. Certain public services
directly finance the
publication of information. The cantonal offices for equality between women
and men, cantonal offices for the protection of young
people and juveniles
offices in many cantons publish files or lists of useful addresses for parents
on such subjects as schooling,
health, leisure or the different services
offering help with problems. The publication of information is also financed by
private
entities (the Pro Juventute foundation’s letters to parents, for
example), some of which also receive public subsidies.
(d) Maternity insurance
241. Article 116 of the Federal Constitution
stipulates that the Confederation shall institute a maternity insurance. The
State’s desire to assist parents in their tasks
and in particular to
support mothers led to the adoption by Parliament on 18 December 1998 of the
Federal Act on maternity insurance,
which provides for the payment of an
allowance for 14 weeks to offset loss of earnings for all women doing paid work
(salaried and
independent), equal to 80 per cent of the salary (up to a certain
ceiling). In addition, a single basic benefit is provided for
all women
(whether working or not) in straitened circumstances. A referendum was
requested on the Act. It was thus put to the people
in a popular ballot on 13
June 1999 and was rejected. Parliament, aware of the importance of such
insurance, has already undertaken
the necessary work to enable it to submit a
new bill on the subject, taking account of the criticisms made at the time of
the popular
ballot.
3. Single-parent families
242. Special assistance for single-parent
families is provided for in various pieces of legislation.
243. The Swiss
Civil Code contains measures in cases of default by a debtor parent, that is
when the parent who has custody does not
receive child maintenance
payments.[170] The
law’s application having been delegated to the cantons, the systems and
the amounts allocated vary considerably from canton
to canton. It should be
noted that all the cantons have set up a service for the recovery of maintenance
allowances and advances.
The parent who has custody can turn to that service if
contributions are not paid. The debtor parent can also apply to it in the
case
of temporary liquidity problems.
244. In most cantons the payment of a
child allowance depends on the recipient’s being gainfully employed.
Parents who raise
their children on their own and do part-time paid work would
thus in fact only be entitled to a partial child allowance. To compensate
for
that situation, the cantons ensure that full allowance payments are made to
parents raising their children on their own, if those
parents do only part-time
work because of their family obligations.
245. The new Federal Act
concerning Sickness Insurance (LAMal) of 18 March
1994[171] has made
health-care and pharmaceutical-products insurance compulsory for all those
domiciled in Switzerland. The premiums are always
individual and are not
income-linked, but LAMal has set up a system financed by the authorities to
reduce premiums for persons in
straitened circumstances. Single-parent families
in a critical situation can benefit from this.
246. Several cantons have instituted need-related benefits that are subject
to income conditions and paid out especially to parents
who are raising their
children on their own. Such benefits are usually related to maternity and are
paid for a period varying from
six months to three years after the birth,
depending on the canton. Cantons that have set conditions for granting benefits
usually
require that the mother (or the father, as the case may be) take care of
the child herself for at least 50 per cent of her time when
the rest is
devoted to paid work.
247. Some centres for single-parent families in
difficulty have been set up as a result of private initiatives (often by
cantonal
or local single-parent associations) or by churches, which sometimes
receive public subsidies and offer housing and childcare
services.
248. Institutions for women in distress are also sometimes very
helpful. Such a temporary refuge allows wives separated from their
husbands,
often for reasons of violence, to find their feet again. The children are
usually taken care of during the week if the
mothers go out to work.
4. Families in poverty
249. The Federal Constitution (art. 115) and
the Federal Act concerning Competence in Matters of Assistance to Persons in
Need[172] define the
cantons’ areas of competence in this regard. The State has the duty to
give needy persons appropriate assistance
to assure their livelihood. Each
canton has therefore set up a social aid service where social workers take
charge of cases of persons
needing help. In most cantons the assistance has to
be reimbursed on certain conditions and up to a certain amount. It is available
to any person in need. It is not specifically geared to parents, but they can
of course take advantage of it.
250. Dependants are taken into account in
the calculation of social insurance benefits (child allowances, higher
unemployment benefits,
family allowances, in
particular).
251. Need-related benefits paid to parents in certain
cantons can be of help when their circumstances are insecure.
252. Many
charitable organizations and associations also play an important part where
poverty is concerned. Many of them receive
State support. These organizations
can provide not only financial assistance but also more personal support to
parents in need.
They can for example offer training courses in areas where the
parents are wanting, leisure activities to occupy the children and
family
activities. They can sometimes act as a link between families in need and the
public social aid institutions. These organizations
are not all active at the
national level or gathered under a national umbrella organization, hence it is
difficult to make an exhaustive
list of them. Fourth World family associations
generally staff offices and offer training programmes, social support and family
activities.
5. Foreign families and refugees
253. Foreign parents enjoy the same benefits as
other parents for the discharge of their duties. Problems arise specific to
their
situation as migrants and special benefits are offered
them.
254. The specific support given parents of foreign nationality
forms part of the policy of the integration of foreigners in Switzerland.
The
Swiss authorities have advocated an active policy of integration for the foreign
resident population and various federal, cantonal
and communal bodies concern
themselves with the question.
255. At the cantonal level, several
entities and individuals work to promote the integration of foreigners in
Switzerland. There
are nearly 40 cantonal, regional or local services to assist
foreigners; these are both public and private organizations and institutions,
providing meeting places, counselling, information and coordination. The
services offered by these bodies are also geared to parents:
continuing
education and language classes, individual counselling, etc. They often work in
cooperation with the cantonal and local
authorities, with churches, with unions
and management or with foreign groups. Those partners are also their main
source of funding.
256. The integration of persons with recognized
refugee status is the responsibility of mutual aid organizations. However, the
Federal
Office for Refugees is committed to giving financial support to
appropriate integration projects, for example language and literacy
classes or
parent training projects. The Confederation alone has competence until the
resident permit is issued, at which point
the cantons take
over.[173]
257. According to a survey carried out by the Federal Bureau for
Equality between Women and Men among institutions and charities working
on
asylum, 85 per cent of those questioned said that refugee women had difficulty
in raising their children. Foreign women professionals
believed this was
because such mothers, no longer having the support of their families and
neighbours and unable to find places in
crèches or day nurseries, find
life in Switzerland to be unremitting. It seems that they also have difficulty
adapting to
their new environment, for example understanding the Swiss school
system.
258. Meeting points for refugee women, funded nowadays by
donations or by the Confederation, are excellent places to exchange information,
where mothers can find support in raising their children. Sometimes such
centres offer language classes and have a day nursery as
well. The Swiss Red
Cross organizes meeting places and support groups for women and
children.
259. Thus Switzerland is striving to develop and provide
further support facilities where day nurseries and activities for parents
can be
found under the same roof.
6. Schooling
260. Schooling is the responsibility of the
cantons, which have taken measures to respond to the needs engendered by the
presence
of foreign children in the
schools.[174] Teachers in
particular receive special training in certain cases for addressing the needs of
children and parents from foreign countries.
The training of future teachers
includes a component on how to deal with foreign children’s problems in
school. In addition,
each canton has in its department of education an
assistant responsible for questions relating to intercultural teaching
(counselling,
refresher training for teachers, advisory service on school issues
for foreign parents).
261. The Federal Commission on Foreigners has
demonstrated the fact that foreign children’s success in school is closely
linked
to the degree of integration of the parents - how broad their contacts
are with Swiss people, how happy they are to live in Switzerland
- as well as to
their knowledge of the language and of the school and vocational training system
in Switzerland. Switzerland has
taken this observation into account in its
active policy of integrating foreigners.
262. Cantonal foreigners’
aid services, organizations (the Swiss Red Cross for example) and trade unions
regularly publish information
on given themes in their newsletters or bulletins
and print information leaflets on different subjects, such as facilities for
children,
the school system, etc.
C. Separation from parents (art. 9)
1. Separation from parents
263. In Switzerland
an authority cannot intervene in the relationship of a child with its parents
unless the child’s welfare
is
threatened[175] and the
danger cannot be avoided in any other way. Thus the separation of a child from
its parents is only possible in the form
of a child protection measure. The
legal protection of the child includes, as the most incisive protective measure,
withdrawal of
parental custody or parental
authority.[176] The
authorities must intervene motu proprio the moment they learn of the
danger to the child. The tutorship bodies, as well as the administrative
authorities, the courts, the
organs of criminal justice and the persons
appointed by cantonal law, such as teachers, police agents, doctors and social
workers,
must report cases that deserve attention. Pursuant to article 317 of
the Civil Code, the cantons must ensure effective cooperation
from the
authorities and services entrusted with civil law measures for the protection of
children, criminal law measures for juveniles
and other forms of assistance to
young people.
264. Withdrawal of custody on the basis of article 310 of
the Civil Code, can be ordered by the tutorship authority only if it is
not
otherwise possible to prevent the child’s development being
compromised.[177] The
tutorship authority may also withdraw custody from the parents at their request
or that of the child, when relations between
them have so seriously deteriorated
that it has become unbearable for the child to remain in the family nucleus and
that, as far
as can be foreseen, other measures would be ineffective. This rule
concerns all cases where the parentchild relations are disturbed
to the point
where they render any harmonious upbringing of the child impossible and
constitute a danger for his or her development.
The loss of custody is decreed
by the tutorship authority, the authority of the first instance, whose decision
may be appealed against
to a cantonal judicial authority and, in the final
instance, to the Federal Court.
265. Withdrawal of parental authority, on
the basis of article 311 of the Civil Code presupposes that the father and
mother are no
longer capable of exercising parental authority properly because
of inexperience, illness, infirmity, absence or other similar
reasons.[178] The
parents’ incapacity may also derive from their conduct, if they have not
shown any real concern for the child or have
been gravely remiss in their duties
to the child. Withdrawal of parental authority is decreed by the tutorship
authority, an authority
of second instance. If that authority is not a judicial
one, judicial control is nevertheless
guaranteed.[179] The
decision to withdraw parental authority is moreover subject to judicial review
by the Federal Court.
266. In cases of dissolution of the marriage, article
176 of the Civil Code refers to the general provisions on the effects of
filiation.
If there is judicial separation, custody is exercised by one of the
parents, but parental authority may continue to be exercised
by
both.[180]
267. Pursuant to the provisions concerning the dissolution of the
marriage and proceedings for divorce, the civil judge decides on
the granting of
custody and parental authority.
[181] These decisions are subject
to the relevant remedies at the federal level.
2. Possibility of participating in separation
proceedings
268. Article 310 of the Civil Code governs the separation of the child from
his or her family within the framework of measures to
protect the child. The
relevant proceedings are regulated by the cantons, with the exception of some
rules of federal law.[182]
As a result, the practice of the tutorship authorities differs considerably from
canton to canton, especially with regard to the
child’s being heard. In
all cases children are heard if they are old enough. In custody withdrawal
proceedings, a child capable
of forming his or her own views has, pursuant to
federal law,[183] the right
to request measures and therefore to be heard. Moreover, according to
article 420 of the Civil Code, anyone who can prove
an interest - that is,
the parents, but also children capable of forming their own views and any other
person close to them - may
appeal against the decision of the tutorship
authorities.
269. Civil law also provides for children to be represented
in the proceedings for their parents’ divorce or
separation.[184] When
there are sound reasons for doing so, the judge may order the child to be
represented in the proceedings by a
guardian.[185] Judges
must, in particular, consider whether a guardianship should be set up when the
father and mother submit divergent views regarding
parental authority or
important questions concerning their personal relations with the child, when a
hearing of the father and mother
or the child, or other factors, casts serious
doubt on the validity of the views of the father and mother about the
attribution of
parental rights or the way in which their personal relations are
regulated or when they justify examination of the need to order
protection
measures for the
child.[186] Judges must,
however, order a guardianship if a child capable of forming his or her own views
so requests.[187] Within
the context of his or her powers with regard to the granting of parental
authority, to essential questions concerning personal
relations and to child
protection measures, guardians exercise for the child the same rights, linked to
their status as a party,
as the parents. Thus they can submit views and lodge
appeals.[188] Legal costs
and charges may not be chargeable to the
child.[189] Furthermore,
children must be heard in proceedings concerning their protection, personal
relations and access rights, unless their
age or other important factors make
the hearing inadvisable.
3. Right to regular personal contacts
270. The right of access is conceived expressly as a right of the child
and not merely the right of the parent who does not hold parental
authority. In
order to take account of article 9, paragraph 3 of the Convention, the Swiss
Government proposed, during the recent
revision of the Civil Code, that a
reciprocal right of access should be introduced for the child and whichever
parent does not have
custody. This is both a right and a duty: the parent and
the child owe one
another assistance, consideration and
respect,[190] which implies
that the parents have an obligation to exercise that right. As a counterpart to
this right and duty of the parents,
children have a right to maintain personal
relations with their father and mother. Thus, article 273 of the Civil Code
provides
that the parent who does not have parental authority or custody and the
minor child have the reciprocal right to maintain such personal
relations as are
dictated by the circumstances. The right of the child to maintain personal
relations must be understood as a strictly
personal right. However, the
tutorship authority may remind the father and the mother, the foster parents or
the child of their
duties and give them instructions, when the maintenance or
absence of personal relations is prejudicial to the
child.[191] Here also the
children’s interests take precedence when their right to maintain personal
relations is limited for their own
protection. Arrangements for right of access
are in principle left to the persons concerned.
271. As a necessary
complement to the right to maintain personal relations, civil law provides for
the right of the parent who does
not have parental authority to receive
information concerning any special events occurring in the life of the child and
to be heard
before any decisions of importance for the child’s development
are taken.[192] According
to article 275a, paragraph 2 of the Civil Code, the parent who does not hold
parental authority may seek information directly
from third parties caring for
the child (doctors, teachers, apprentice masters). It goes without saying that
those third parties
must then respect the child’s personality rights. The
child’s welfare may, depending on circumstances, require that
the right to
information should be limited or
withdrawn.[193]
4. Detention
272. In cases where minors are detained, according to the federal bill
governing the criminal status of
minors,[194] custody is
necessarily withdrawn from the father, mother or foster parents for the duration
of detention, as the children are no
longer living with their parents during
that time. The parents no longer have the power to decide where they should
reside or what
direct assistance they should receive. Where necessary, the
executing authority regulates the right of the parents or third parties
to
maintain personal relations with the minor in accordance with articles 273 et
seq. of the Civil Code. Any limitation or barring of personal relations
between parents and children is admissible only in very limited
conditions,
namely if those relations are harmful to the child’s development (CC,
art. 274 (2)).
273. In regard to the particular case of mothers in
prison, it should be noted that in Switzerland provision has been made for
personal
relations between children and their mothers over and above the access
rights normally accorded. The “mother and child”
section opened in
1962 in the Hindelbank women’s penitentiary provides places for mothers
accompanied by children up to three
years old. Likewise, the “La
Tuilliere” women’s prison at Lonay (Vaud) occasionally takes in
inmates’
children.[195] In the
penitentiary of the canton of Ticino an apartment has been set aside for visits
and furnished in such a way as to provide
a “normal” family
atmosphere for a child whose parent is in prison. Relations between children
and incarcerated parents
are monitored by specialists.
D. Family reunification (art. 10)
1.
Introductory remarks
274. According to article 10, paragraph 1, applications by a child or his or
his parents to enter or leave a country for the purpose
of family reunification
shall be dealt with in a positive, humane and expeditious manner. This
provision is interpreted not as creating
a right to family reunification for the
child or his or her parents, but as exhorting States parties to respect the
child’s
interests as closely as possible while dealing with each
application, within the framework of the provisions in force on immigration.
The chairman of the working group of the Commission on Human Rights expressed
that view when the Convention was being drafted, stating
that article 10
“is not intended to affect the general right of States to establish and
regulate their respective immigration
laws”.[196] The
Federal Court has had occasion to confirm that interpretation and to state in a
recent decision[197] that
article 10, paragraph 1 does not confer on the child or his parents any
enforceable right to family reunification, or undermine
the immigration laws
which States enact. Thus paragraph 1 prescribes a certain attitude for States
parties, but does not affect
their freedom to regulate immigration by setting
conditions for family reunification. However, by expressly refusing family
reunification
to short-term resident aliens, Swiss legislation binds the
executing authorities and prevents them from considering applications
in a
positive, humane and expeditious manner. It follows that Switzerland is not in
a position, at least for the
present,[198] fully to
satisfy the requirement of article 10, paragraph 1. For that reason it made the
following reservation on acceding to the
Convention: “Swiss legislation,
which does not guarantee family reunification to certain categories of aliens,
is unaffected.”
275. According to article 10, paragraph 2, a child
whose parents reside in different States shall have the right to maintain on a
regular basis, save in exceptional circumstances, personal relations and direct
contacts with them. Temporary residence for visits
is a means of meeting this
need. By providing, to that end, that children and their parents have the right
to leave any country,
including their own, and to return to their country,
paragraph 2 confirms the rights recognized and applied by
Switzerland.[199] However,
it does not create an obligation to admit aliens into the national territory.
Here, as in paragraph 1, the Convention
leaves the competence of States in the
area of immigration unaffected.
2. Family visits
276. Entry into Switzerland for the purpose of family visits is granted
in principle to family members of foreign nationality - children
and parents -
when payment of the costs of their stay in and departure from Switzerland are
assured and, a fortiori, when the objective
conditions for family reunification
are met. The same is true for regular contacts between parents and an adopted
child, between
a parent and the child of a first marriage and also between
natural parents and their children. If there is any doubt about whether
foreign
residents can assume the costs of their stay for the family members visiting
them, the authority can make the issuance of
visas or permission to enter the
country conditional on the submission of a declaration of guarantee, duly
stamped by the competent
authority of the place of residence. For the rest,
temporary residence
for visits does not require any special authorization, provided the total
period of stay does not exceed six months in each 12-month
period and any stay
of three consecutive months is necessarily followed by at least one
month’s absence from
Switzerland.[200]
3. Family reunification
277. The child of a couple one of whom is Swiss or the child of a Swiss
mother not married to the father acquires Swiss nationality
at birth as of
right.[201] As a Swiss
national he or she may enter Swiss territory at any time, either to live with
the Swiss parent or to maintain personal
relations with that
parent.
278. Reuniting family members of foreign nationality is within
the purview of Swiss policy on migration. Thus the rules for family
reunification apply only to foreigners admitted for longterm residence, of at
least one year, either as part of the workforce, or
as persons of independent
means or others without paid work. According to statistics, family migration
accounted for 30.8 per cent
of entries for longterm stay in 1997, 29.8
per cent in 1998 and 30.6 per cent in 1999. Family
reunification[202] in Swiss
law applies to spouses and unmarried children under 18 years of
age[203] (including adopted
children and foreign children of Swiss
parents).[204]
Reunification may coincide with the foreigner’s taking up residence or may
take place thereafter.[205]
In fact it should allow all members of a family stricto sensu, and not
just some of them, to live together, so that the family dynamics may contribute
to a better social integration of its members
than if they are separated in
different countries. The view is, therefore, that, according to established
practice, family reunification
should take place when the centre of family life
is in Switzerland. In certain cases the authority will allow partial
reunification
when the parents live apart, in others reunification may be
deferred if this is in the interests of the child, for example, in order
to
continue schooling in the country of origin before rejoining his or her parents.
When the family has been separated or divided
and only one of the parents
resides in Switzerland, the child living abroad does not have an unconditional
right to join that parent:
at the least the child’s main family
relationship[206] must be
with that parent or new family relations must be clearly defined with the parent
living in Switzerland if the latter is being
called on to replace a deceased
spouse who had custody or a spouse who failed to discharge his or her parental
duties.[207] Any measures
that would serve only to divide the family further should in any case be
avoided.[208] According to
the legislation in force, reunification must take place around the parents,
either the mother or the father, rather
than the child. If the child is alone
in Switzerland, that can only be a temporary situation for purposes of
schooling, higher studies
or medical treatment, with the centre of family life
remaining abroad. Thus children cannot be joined by their parents, but may,
in
accordance with article 10, paragraph 2 of the Convention, maintain regular
contacts with them.
279. Switzerland has two types of residence permit:
a temporary residence
permit,[209] of limited
duration and subject to conditions, and a permanent residence
permit,[210] which is
unconditional and of indefinite duration and may be obtained after regular and
uninterrupted residence of 10 years, or of
5 years in the case of bilateral or
reciprocal agreements. The decision on family reunification will depend on the
type of permit
held by the foreign national, specifically on whether the family
reunion would[211] or would
not[212] be based on a
right. When the conditions for family reunification are not present, family
reunification can nevertheless take
place by other means, on a case-by-case
basis, if there is an overriding interest in favour of a family member’s
receiving a
temporary residence permit: this is the case if the person
concerned can claim the right to respect for family life in accordance
with
article 8 of the European Convention on Human Rights, particularly in cases of
excessive hardship[213] or
for other important
reasons.[214]
4. Right to family reunification
280. Article 17, paragraph 2 of the Federal Act concerning the Permanent and
Temporary Residence of Foreigners gives resident foreign
nationals, that is
those who possess permanent residence permits, the right to live in Switzerland
with their families. For that
purpose, it grants spouses not only the right to
a temporary residence permit for as long as the couple live together, but also
the
right to a permanent residence permit after five years of living together in
Switzerland. This article also grants children under
18 years of
age[215] the right to be
included on the permanent residence permit of one or both parents provided they
live with them.
281. The right to family reunification will be recognized
under that provision only if there is a serious intention of living together
and
there is no actual danger of members of the family becoming continuously or to
any large degree dependent on public assistance.
This right must also not be
improperly invoked. The reasons for family reunification cannot be purely
economic or
professional.[216] Its aim
is not to guarantee training in Switzerland or to offer a fresh start in
life.[217] According to
the Federal Court, this right has been abused when a parent who is a permanent
resident of Switzerland, having deliberately
chosen to live apart from his or
her children for many years, invokes article 17, paragraph 2 of the Federal Act
concerning Permanent
and Temporary Residence of Foreigners in order to be joined
by a child about to turn 18, on grounds of family reunification, with
the
sole aim of enabling the child to enter the Swiss job market just before he or
she becomes subject to the quota restrictions
on the foreign labour
force.[218]
5. Family reunification on the basis of the right
to respect for family life (CEDH, art. 8)
282. The European Convention on Human Rights (CEDH) grants no right of
asylum, residence or extended residence. In its article 8
it does, however,
protect family unity and shared family life. Thus measures taken by States - on
restricted entry, expulsion or
extradition - may interfere with the right to
protection of family life. According to article 8, paragraph 2 of the European
Convention
interference with family life is nevertheless admissible so long as
it is in accordance with the law, in the public interest and
not excessive. The
Convention therefore requires the immigration authorities to weigh the private
interests served by family reunification
against the public interest served by
its refusal, with the public interest prevailing in order for the interference
to be shown
to be
necessary.[219]
283. Following the practice of the authorities in Strasbourg, the
Federal Court has also recognized in general that a right of residence
in
Switzerland may derive from article 8 of the
European
Convention.[220] According
to the Federal Court, article 8 of the European Convention
may be invoked in the context of measures under the law relating to aliens
provided that a family
relationship exists between the foreign national and
a person enjoying a right of residence (having Swiss citizenship or a permanent
residence permit) or a person who can at least claim a right to extended
residence. That relationship must be meaningful and
intact.[221]
284. The
right to respect for family life can however be invoked only when the measure
taken by the State leads to the separation
of family members. The State is
therefore not interfering in family life when the foreign national has freely
chosen to live apart
from his or her family in another
country.[222] The same
holds true for a case in which family members resident in Switzerland could
reasonably be required to go abroad with the
person who has been refused a
temporary residence permit and to live their family life
abroad.[223]
285. At
the outset the Federal Court had stressed that protection was confined to the
family in the narrow sense of the term, i.e.
spouses and their minor children.
On that basis, family life in the meaning of article 8 of the European
Convention can exist only
between spouses, between parents and their minor
children and between a separated or divorced father or mother who does not have
custody and his or her minor
children.[224] In view of
Strasbourg case law, to the effect that article 8 of the European Convention
could also apply to the life of the extended
family, the Federal Court has been
compelled to expand the scope of its protection of family life. That being the
case, family life
deserving of protection may also in principle exist when there
is a relationship of dependence, between parents and their adult children
or
between more distant members of a family, such as brothers and sisters or
half-brothers and
sisters.[225]
286. The
European Court of Human Rights had occasion to review that case law in the
Gül case. The Federal Court had refused
to allow Mr. and Mrs. Gül,
who had a permit for temporary residence in Switzerland delivered for
humanitarian reasons, to be
joined by their six-year-old son, abandoned by his
father in Turkey at the age of three months, because they had no irrevocable
right
of residence according to Federal Court case
law.[226] The European
Court also found that article 8 of the European Convention on Human Rights had
not been infringed. The father, the
plaintiff in the case, had other means
available to him to enjoy family life with his son. A return to Turkey would
certainly not
be easy but neither would it be out of the question. In its line
of argument the Court cited Federal Court case law to the effect
that in
principle only those persons who have a recognized right to residence in
Switzerland, that is, who can at least prove a firm
claim to a residence permit,
have a right to family
reunification.[227]
6. Special situations
287. Foreigners who do not have the right to
permanent residence in the terms of article 17, paragraph 2 of the LSEE have no
claim
to family reunification. They need an authorization to bring in their
spouses and dependent unmarried children under 18 years of
age.[228] The authority
takes its decision freely, in accordance with article 4 of the Act. In
principle it may authorize family reunification
for foreigners if their
residence and, where relevant, paid employment appear sufficiently stable, if
they live together with their
family and have suitable housing for that purpose,
if they possess adequate financial means to maintain the family and if
childcare,
where needed, is
provided.[229]
288. Unmarried
children under 18 years of age whose parents hold a temporary residence permit
may obtain the same permit as the parents
but cannot seek family
reunification.[230] The
conditions for family reunification must be
met.[231] If one of the
parents subsequently obtains a permanent residence permit, the children will
have the right to that same permit provided
they are unmarried and under 18;
otherwise, the permanent residence permit can be issued to them only after a
regular, uninterrupted
stay of 10 years, or 5 years in the case of bilateral or
reciprocal agreements.
289. The interests of unmarried children under 18
are also taken into account in the following situations: when the parents are
separated
or divorced, the children enjoy the same status as the parent (mother
or father) who has custody. Parents who live in Switzerland
may even, if they
have a permanent residence permit, claim the right to bring the child into
Switzerland if that child has a priority
family relationship with
them.[232] Unmarried
children of a first marriage under 18 years of age may be included in the
permanent residence permit of their father or
mother by analogy with article 17,
paragraph 2 of the LSEE. Moreover, it is consistent with practice for the child
of an unmarried
couple who live together to obtain a permanent residence permit
at birth if the father is Swiss. If the father is a foreigner, the
child will
be given the same permit as the mother and will obtain a permanent residence
permit at the same time as she does; if the
couple subsequently marries, the
child may have the status of either the mother or the father, whichever is more
in his or her
favour.[233]
7. Temporary residence authorized out of respect for family life
290. Normally any foreigner who is covered by article 17, paragraph 2 of
the LSEE may also invoke article 8 of the European Convention
on Human Rights
which guarantees the right to respect for private and family life (para. 1),
taking account of the interests involved
(para. 2). That article does not
guarantee the right to enter and reside in a given State, but foreigners may
invoke it in certain
circumstances to oppose possible separation from their
family and obtain a temporary residence permit. To determine whether it must
grant a temporary residence permit under article 8 of the European Convention,
the immigration authorities must weigh public and
private
interests.[234] They will
only do so when there has been a failure to respect family life, that is when
the rights guaranteed by article 8, paragraph
1 of the European
Convention[235] have been
violated.
291. There is extensive Federal Court case-law drawing heavily
on the Strasbourg courts. Article 8 of the European Convention protects
foreigners from refusal or nonrenewal of a temporary residence permit and allows
them, on certain conditions, to join family members
resident in Switzerland, to
ensure that the family will not be
separated.[236] Protection
under this provision is confined to the family in the strict sense of the term,
that is to the spouse and minor children
living jointly. If the person needing
a temporary residence permit is not one of those eligible for family
reunification, the family
relationship may nevertheless be protected if the
applicant is mentally or physically disabled or seriously ill and is dependent
on a member of the family who has a right to reside in
Switzerland.[237] The
protection afforded by article 8 of the European Convention can be claimed only
if the family relationship is intact and
meaningful.[238] This
provision does not grant an absolute right of entry and residence to members of
a family,[239] particularly
if the foreigner has taken the decision to live separately from the family in
another
country.[240]
292. According
to the Federal Court, article 8 of the European Convention may be invoked in the
case of children living abroad vis-à-vis
a parent with the right to a
temporary residence permit living in Switzerland with whom the children have
their main family
relationship.[241]
However, members of a family cannot invoke article 8 of the European Convention
if their spouse or parent resident in Switzerland
does not have an assured right
to be there, but only a temporary residence permit which the cantonal authority
is free[242] to renew or
not.[243] In its decision
in the Gül case[244]
which was upheld by the European Court, the Federal Court made it clear that a
foreigner in possession of a temporary residence permit,
whose immigration
status is therefore insecure, is not in a position, by virtue of his or her
presence in Switzerland, to confer
on another foreigner a more secure status,
i.e. a right to a temporary residence permit.
293. The Federal Court has
denied the right to protection under article 8, paragraph 1 of the European
Convention to foreigners who
wanted to develop their professional career or
complete their training, whose applications were clearly motivated by other
considerations
than that of beginning or resuming a shared family
life.[245]
294. The
Federal Court has found that respect for family life is not infringed when the
close family members who have the right to
live in Switzerland can be
expected to go abroad with the person who has been refused a residence
permit.[246] Finally, in
the case of a child with the right to reside in Switzerland, whose father had
lost his temporary residence permit through
divorce, the Federal Court did
accept article 8 of the European Convention as a justification for granting the
father a temporary
residence permit, even though the child was not under
his parental authority or in his custody, because he had a very close
relationship
with his
child.[2]
8. Exceptional authorization of residence
295. If in a given case the conditions for family reunification are not met,
the cantonal immigration authorities may nevertheless,
in view of circumstances,
allow foreigners to live in Switzerland with their families by granting them a
permit for temporary residence
without the right to work when important reasons
so dictate,[248] or by
granting them access to the labour market without making them subject to foreign
manpower quotas, when refusal of a permit
would place them in a situation of
extreme gravity.[249]
Although these two provisions do not confer a right of residence, they give the
authority power to take the best interests of the
child into account.
9. Family reunification and asylum
296. Requests for family reunification supported by arguments relating to the
political situation in the country of origin must be
submitted on the basis of
the Federal Asylum Act (Lasi) of 26 June
1998[250] rather than the
LSEE. Thus reunification of the family, in the meaning of article 10, paragraph
1 of the Convention, will depend
on the foreigner’s status: whether he or
she is an asylum-seeker, a refugee, a person being admitted temporarily or a
person
to be protected temporarily.
297. Asylumseekers are not permitted to bring in members of their family
during the asylum procedures. If they have joined them,
however, the ODR will
act in such a way as to keep the family together, in view of the
foreigner’s right, under article 8 of
the European Convention, to respect
for family
life.[251]
298. Refugees,
on the other hand, have the right to the reunification of their family as it was
at the time when they fled and to
have the members of that family enjoy the same
status as themselves in Switzerland, if they are of the same nationality.
However,
if the refugee’s family is binational and if there is no danger
of persecution in the other country of origin, the authority
can
require[252] the
reunification of all the members of the family to take place in that other
country, provided of course that their residence there
is possible and lawful
and may reasonably be required. The principle of the unity of the family also
prevails if the refugee is
sent back: the Federal Office for Refugees sees to
it that the departure deadlines assigned to each of the family members allow
them to leave Swiss territory
together.[253]
299. Under
article 51, paragraph 1 of the Lasi, refugees’ spouses and minor children
have the right to join them in Switzerland.
Paragraph 2 allows other close
family members to be included within the circle of beneficiaries, if the
particular circumstances
so justify. That provision also allows refugee
children who are alone in Switzerland to be joined by their parents. Children
born
in Switzerland of refugee parents also obtain refugee
status.[254]
300. When
applicants are refused asylum but permitted to remain in Switzerland temporarily
because they cannot be expelled, it is
ORD practice to extend temporary
admission to include all the members of their family who have applied for
asylum. Case law has
upheld this practice, based on the principle of family
unity laid down in article 44, paragraph 1 of the
Lasi.[255] The order in
which the various family members arrived in Switzerland and the question of
whether the family was formed prior to
departure or after arrival in the host
country have no bearing on the decision. On the other hand, when the request
for family
reunification[256] is
submitted abroad, the person who is temporarily admitted cannot be joined by the
members of his or her family unless the normal
conditions for family
reunification have been
met;[257] moreover, the
cantonal authority must be prepared to issue a temporary residence permit to
each of the family members, there must
be no possibility, in the short term, of
carrying out the decision to expel the foreigner who is being admitted
temporarily and there
must be no reason to limit that foreigner’s right to
respect for family life.
301. Thus, where both expulsion and admission
are concerned, the legislation relating to asylum takes into account the need
for family
reunification and consequently protects the interests of the
child.
10. Reservation
302. From the foregoing it can be seen that long-term resident foreigners
may obtain family reunification, either by claiming a right,
meeting certain
conditions or resorting to other legal means of obtaining residence. Its
immigration legislation and case law protecting
family unity enable Switzerland
to take account of the need for family reunification of the dependent children
of long-term resident
parents.
303. However, the law in force does not
permit seasonal workers, short-term permit holders, trainees, pupils and
students or persons
taking courses of treatment to bring their family members
into Switzerland other than for visits (six months a
year).[258] They
nevertheless have the right to submit an application for family reunification
and to obtain a decision against which they can
appeal. This restriction on
family reunification, which is at present being contested, has been
maintained not only because of the
difficulty of getting a family that has
already settled to leave Switzerland, but also in an effort to spare family
members all sorts
of complications linked to schooling and housing in both the
country of departure and the host country. Exceptions have already
been made,
it is true, for certain foreigners, to cover the period of their activity in
Switzerland. Press correspondents, the staff
of foreign Governments, visiting
academics and persons on sabbatical, doctoral and post-doctoral students and
Confederation scholarshipholders,
as well as certain trainees from countries
which apply reciprocity agreements, may be authorized to come to Switzerland
with members
of their families and the latter are usually admitted to the job
market.
304. Those exceptions aside, it must be noted that by refusing
short-term resident foreigners the right to family reunification Swiss
law is
not entirely in compliance with the requirements of article 10, paragraph 1 of
the Convention. It is for that reason that
a reservation has been made in this
regard. However, as stated above, the amendments to the law in force needed for
the withdrawal
of Switzerland’s reservations in the area covered by the
LSEE are being undertaken. Thus, a complete revision of the LSEE
is under way,
which will extend to all categories of foreigners the opportunity to benefit
from family
reunification.[259]
E. Illicit transfer and non-return (art. 11)
1. National measures
305. Minors are
specifically protected against abduction under the Criminal Code.
According to the terms of article 220 of the Criminal
Code, any person
having abducted from or having refused to hand over a minor to the person
holding parental authority or acting as
guardian of the child shall be
punishable, in response to a complaint, by imprisonment or a fine. In
1997, 21 persons were tried
under those provisions. Criminal
proceedings are preferable a priori in cases of abduction involving States
that are not party to
the relevant international conventions (see section 2
below). Criminal proceedings may, however, be initiated with a request to
return to civil treaty proceedings, for instance to facilitate searches to
locate the child or to increase pressure on the abductor
by applying for
extradition. For the sake of the child’s protection, however, all aspects
of the matter must be carefully
considered before criminal proceedings are
initiated, as the outcome of the latter might be harmful to the child if
relations with
one of the two parents were to be broken off again or if they
prevented the possibility of a friendly settlement.
306. Under article
292 of the Swiss Criminal Code, a civil judge is authorized to apply a penalty
(detention or fine) should the parties
not comply with the court ruling. While
it may be admitted that civil proceedings have certain advantages in family
conflicts, there
is no doubt that
applying treaty provisions and especially implementing the resulting
decisions does present some difficulty. Since the means of coercion
of the
criminal law are not available in this case, the civil courts are advised to
apply the above-mentioned provision in order
to avoid the child being upset
again when the ruling is applied.
307. The implementation of decisions to
return the child are given special consideration by the authorities or social
services involved,
who try to arrange the return in the best interests of the
child. Like other central authorities, the Swiss central authority tends
to
encourage a follow-up of return decisions, in order to avoid a situation,
following the restoration of custody rights, where the
child would lose all
contact with the abducting parent, which is generally harmful to a child’s
development.[260]
308. Switzerland
attaches a great deal of importance to the problem of the illicit transfer and
non-return of children. The country
has a central authority on child abduction,
which is attached to the Federal Office of Justice within the DFJP, which acts
in conjunction
with the federal authorities - particularly the Federal Police
Office - and cantonal authorities. Apart from the courts responsible
for
issuing decisions on the return of children or the protection of access rights,
which play an important role, other cantonal
authorities, especially tutorship
and police bodies, become involved in cases of abduction. The authorities
assist the persons concerned
to obtain the return of children illegally abducted
abroad.
309. The prevention of abductions is particularly important
insofar as it constitutes a form of advance protection for the child against
the
traumas that frequently occur as a result of events of this kind. It is even
more important in cases where the State where the
child might be taken is a
party to none of the conventions. Prevention also reinforces the preventive
effect that treaties produce
thanks to their extensive scope (with fewer and
fewer so-called shelter States or States where the treaties cannot be invoked).
The central authority will in such cases maintain the necessary contacts with
the authorities concerned and will supply applicants
with advice and information
and an aide-mémoire, and may invite the parents to contact the Swiss
Foundation of the International
Social Service (ISS), which also deals with
these matters.
310. The granting of cross-border access rights in cases
of divorce or separation is another factor which can help prevent the
international
abduction of children. If the foreign element, such as the
likelihood of parents residing in different countries, is duly taken
into
consideration at the time the marriage or household is dissolved, this can to
some extent avoid any non-return of children following
the exercise of an access
right that the parent exercising the right might have considered inadequate or
too laboriously obtained.
311. The recognition of custody decisions must
also be facilitated, since it can preventively afford the child some stability
in the
exercise of rights to which he or she is considered entitled. The
recognition of custody decisions deserves to be applied more frequently,
in view
of the potential protection it can afford the child, whose situation will then
be dealt with in similar fashion in the States
of residence or States of origin
of both parents.
2. Bilateral and multilateral agreements
312. Switzerland has ratified the European
Convention on Recognition and Enforcement of Decisions concerning Custody
of Children and
on Restoration of Custody of Children of 20 May
1980[261] and the Hague
Convention on the Civil Aspects of International Child Abduction
of 25 October
1980.[262] These
Conventions, which have been in force since 1 January 1984, are
applied directly in Switzerland, without any need for a federal
implementation
act.
313. Switzerland, which is in favour of extending multilateral
agreements in this field, has accepted the accession of most of the
States parties to the above-mentioned
Hague Convention.[263]
In 1998 and 1999, 162 formal applications were dealt with under the
two aforementioned Conventions, leading to a positive outcome
in more than
two thirds of the cases, in the form of returned children, protected access
rights or friendly settlements between parents.
The States with which
Switzerland maintains the most frequent relations in this respect include
Germany, the United States, France,
Italy, United Kingdom, Portugal and the
States of the former Yugoslavia.
F. Recovery of maintenance for the child (art. 27 (4))
314. If parents fail in their duty of
maintenance,[264] children
can apply for maintenance in court, from their father, mother or both under
article 279 (1) of the Civil Code. A maintenance
action may be brought either
by children themselves with the consent of their legal representative, if they
are capable of forming
their own views, or on their behalf by their legal
representative. If there is a conflict of interest between the parents and the
child, the tutorship authority may appoint a tutor to claim a maintenance
allowance on the child’s
behalf.[265]
315. An
action for recovery of maintenance must be decided by a judge, in civil
proceedings, and never by an administrative authority.
According to federal
law,[266] cantons must
apply simple, rapid proceedings to any litigation concerning the maintenance
obligation. The maintenance contribution
must be in keeping with the needs of
the child, as well as with the means and resources of the father and the mother,
in the light
of the child’s own assets and
income.[267] Any child
allowance payable to the person responsible for the child’s upkeep must in
principle be paid over and above the
maintenance
contribution.[268]
Contributions are payable to the child’s legal
representative.[269]
316. Should the father or mother fail to provide maintenance, the
tutorship authority or other body appointed under cantonal law must
- adequately
and free of charge - assist the other parent, on request, to obtain enforcement
of maintenance
benefits.[270] The judge
may also require the parent with the maintenance obligation to provide
appropriate sureties for future maintenance contributions
or may order the
parent’s debtors to pay all or part of the payments they owe directly to
the child’s legal
representative.[271]
317. According to the principle of advancing maintenance contributions,
the authorities will pay benefits to the child on behalf of
the defaulting
parents, where father and mother fail in their maintenance
obligation.[272] All
cantons run a scheme of advances.
318. According to article 217 of the
Criminal Code, any person failing to pay maintenance or grants owed under family
law, though
he or she possesses the necessary means or could possess them,
shall, on a complaint, be punishable with imprisonment. Authorities
and
services appointed by the canton also have a right of complaint in this respect.
In 1996, 657 persons were tried under this provision
of the criminal
law.
319. With regard to international enforcement of the right to
maintenance, Switzerland is a party to the Hague Conventions on the
law
applicable to maintenance obligations towards children, of 24 October
1956,[273] concerning the
recognition and enforcement of decisions relating to maintenance obligations
towards children, of 15 April
1958,[274] on the law
applicable to maintenance obligations, of 2 October
1973,[275] on the
recognition and enforcement of decisions relating to maintenance obligations, of
2 October 1973,[276] and to
the New York Convention on the Recovery Abroad of maintenance, of 20 June
1956.[277]
G. Children deprived of a family environment (art. 20)
320. As we mentioned earlier, children must not
- in Switzerland - be deprived of a family environment, except where such a
measure
is the only way of avoiding their development being
jeopardized.[2] Children
who have been withdrawn from their parents’ custody must be given an
appropriate placement,[279]
that is, one suited to their personality and requirements in terms of education
and training. In addition to the parents, a child
capable of forming his or her
own views must be
heard.[280] All the
cantons try to take account of the religious, cultural and linguistic background
of children in need of placement. Very
often it is the specialized services
that deal with such cases (such as the youth department, or the psychological or
psychiatric
service for young people), taking account of the child’s
personal circumstances.
321. Placement may be made in a foster family, in
an institution or in an establishment for children or with a view to subsequent
adoption.[281]
322. Under
article 316 of the Civil Code, the placement of a child with foster parents or
in an institution requires an authorization
by the tutorship authority and is
subject to supervision by the tutorship authority or any other body appointed
under cantonal law.
1. Family placement
323. Family placement is governed by articles 4
et seq. of the Federal Ordinance regulating the placement of children
(OPE).[282] An official
authorization is required for the placement, for more than three months or for
an indefinite time, of a child of school
age or under 15 years, with foster
parents who undertake to provide for the child’s maintenance and
education, either against
payment or free of
charge.[283] This
authorization will be delivered only if the personal qualities, educational
aptitudes and state of health of the foster parents
and other persons living in
their household, and the conditions of accommodation are such as to ensure that
the placed child will
receive adequate care, education and training, without
harming the well-being of other children
living in the
family.[284] Supervision
takes the form of visits by a qualified person appointed by the authority. If
certain shortcomings cannot be remedied,
the authorization will be withdrawn.
In the event of imminent danger, the child will be immediately
withdrawn.[285]
2. Placement in an institution
324. Similarly, institutions that take in
children, look after them and provide them with an education and training,
require an official
authorization.[286] Before
it delivers the authorization, the authority must make sure that the following
conditions are met: that conditions in the
institution are conducive to the
physical and mental development of the children; that the personal qualities,
educational abilities,
state of health and training of the director of the
institution and his or her assistants are such as to enable them to perform
their
task; that boarders receive a healthy and varied diet and are kept under
medical supervision; that boarders are suitably insured
against sickness,
accident and civil
liability.[287] A
qualified representative of the authority must visit the institutions as often
as necessary, but at least once every two
years.[288] The
representative must interview boarders concerning their condition and the way
they are looked after. An authorization may be
withdrawn in the event of
shortcomings which the director of the establishment has not remedied in good
time. In the event of imminent
danger, the authority must immediately close
down the
establishment.[289]
3. Placement in an establishment
325. The child may be placed in an
establishment providing assistance. According to the Federal Court, there is
placement in an establishment
in the meaning of article 314 (a) of the Civil
Code in cases where the child’s freedom is more restricted than that of
children
of the same age brought up in a
family.[290]
326. If
a child is placed in such an establishment, articles 397 (d), 397 (e) and 397
(f) of the Civil Code, concerning court supervision
and procedure in the event
of deprivation of freedom for the purpose of assistance of adult persons or
persons deprived of legal
capacity, apply by
analogy.[291] Children not
yet 16 years of age cannot appeal to the judge personally, although a person
close to the them may do so on their
behalf.[292] An appeal
against placement in such an institution or against a refusal to end such
placement may be lodged before the Federal Court.
H. Adoption (art. 21)
327. In Switzerland, the best interests of the
child are the guiding principle in the case of adoption. A child may not be
adopted
unless all circumstances indicate that it will be for his or her good.
Adoption is possible only if the adoptive parents have cared
for the child and
seen to his or her upbringing for at least two
years.[293] Placement for
the purpose of adoption may be authorized only if there is no legal impediment
to adoption and if circumstances indicate
that the adoption will be
granted.[294]
Consideration of best interests of the child is also important if the adoptive
parents have other children, since adoption must
not unfairly detract from the
situation of the children of the adopting household, nor must it be prejudicial
to their development
or unfavourably alter the family structure.
1. Adoption where no foreign element is present
(a) Consents required
328. If the child is
capable of forming his or her own views, adoption may take place only subject to
his or her consent.[295]
Such consent must be given to the adoption authority or the body in charge of
the inquiry. The child must in any event be appropriately
informed as soon as
possible of the situation. If the child is under tutorship, even if capable of
forming his or her own views,
the adoption is still subject to the consent of
the tutorship
authority.[296] The good
of the child is a decisive consideration with respect to the decision to grant
or refuse such consent.
329. The father and mother must also in principle
both give their
consent.[297] Such consent
cannot be given before six weeks after the child’s birth and may be
withdrawn within six weeks following its
receipt by the
authority.[298] The
consent of one of the parents may be dispensed with, in the event that that
parent is unknown, has been absent for a long time,
has no known address, is
incapable of forming his or her own views on a sustainable basis or has never
shown any real concern for
the
child.[299]
330. If
the adopting parents have children, the latter’s opinion must also be
taken into
consideration.[300]
(b) Other conditions
331. A necessary condition for adoption is that
the child be at least 16 years younger than the adoptive
parents.[301] Furthermore,
spouses can only adopt jointly.
[302] Spouses can adopt
together only if they have been married for five years or if they are both aged
at least 35.[303] The
adoption of a spouse’s child constitutes a variation of joint adoption.
Thus a spouse may adopt the other spouse’s
child provided that the
adopting spouse has been married to the latter for at least five
years.[3] Adoption by a
single, unmarried person is also possible, provided that that person is at least
35 years of age.
(c) Competent authorities and inquiries
332. Adoption is granted by the cantonal
authority with jurisdiction in the adoptive parents’ place of
domicile.[3] It may be
decided only after a detailed inquiry into all the relevant
circumstances.[306] In
particular, a number of factors such as the personality and health of the
adoptive parents and the child, mutual suitability,
the adoptive parents’
ability to bring up the child, their economic situation, their motivations and
their family circumstances,
and any changes in the foster link are looked into.
Subject to the terms of articles 268 to 268b of the Civil Code, adoption
procedures
are governed by cantonal law. If adoption is refused, applicants may
appeal to the Federal Court.
333. The placement of children by
intermediaries for eventual adoption is also supervised by the canton; any
person making placements,
whether in a principal or an accessory capacity, must
obtain an
authorization.[3]
(d) Effects of adoption
334. An adopted child acquires the same legal
status as a child of the adoptive parents (CC, art. 267 (1)).
Adoption therefore gives
rise to a filiation link between the adopting person,
or adopting spouses, and the child. Any former filiation link is extinguished
(CC, art. 267 (2)), with the exception, in the event of adoption by one of the
spouses of the child of the other spouse, of the link
with the adopter’s
spouse. Adoption is indissoluble, except in the event of annulment proceedings
(CC, art. 269-269b) or another
subsequent adoption. The child acquires a filial
relationship with the adopting parents as if he or she were their own blood
child.
No distinction is made between blood relations and adoption in that
respect. The adopted child receives the surname of the adoptive
parent at the
time of adoption. Adoption then gives rise to a duty of maintenance by the
adoptive parents, who acquire parental
authority over the minor in full right
(CC, art. 296). The child’s right to know the identity of his or her
biological parents
has already been mentioned in the commentary relating to
article 7 of the Convention.
2. International adoption
(a) Legal terms and guarantees for the child
335. In Switzerland,
generally speaking, the following principle determines the attitude to
international adoption: adoption abroad
should be considered as an appropriate
means of giving children a family, only if the children cannot, in their country
of origin,
be suitably brought up either in their own family or in an adoptive
or foster
family.[3]
336. The
terms of an adoption granted in Switzerland are governed by Swiss law. If it
appears that an adoption might not be recognized
in the State of residence or in
the national State of the adopting person or the adopting spouses, causing
serious harm to the child
as a result, the authority must also take account of
the conditions arising under the other legislation concerned. If, despite that,
recognition does not appear assured, the adoption must not be
granted.[3]
337. According
to article 78 (1) of the Federal Act concerning International Private Law
(LDIP),[310] adoptions
decided abroad are recognized in Switzerland provided that they have been
granted in the State of domicile or in the national
State of the adopting person
or the adopting spouses.
338. Article 78 (2) of the same Act stipulates,
moreover, that adoptions or similar institutions under foreign law, whose
effects
are essentially different from the filiation link as understood in Swiss
law, are recognized in Switzerland only with the effects
to which they give rise
in the State where they have been decided. Such effects cannot be broader in
scope in Switzerland than abroad.
If the conditions of international private
law are met, it is possible, in such cases, to apply for full adoption in
Switzerland.[311] It
follows that if the foreign adoption produces only the effects of a simple
adoption abroad, it cannot be recognized in Switzerland
as a full adoption, even
though only the latter form of adoption is recognized under current Swiss law.
Article 78 (2) merely stipulates
the limits of the equivalent status
given to simple adoption. It does not, however, contain a direct reference to
which legal provisions
would apply to such an adoption, as an exception to the
general rules of conflict governing the various effects of filiation, and
successions.[3]
339. According to article 75 (1) of the LDIP, the adoption may be granted by
the Swiss judicial or administrative authorities of the
place of domicile of the
adopting person or adoptive spouses.
340. The Federal Ordinance
regulating the Placement of Children of 19 October 1977
(OPE)[313] applies in cases
where a foreign adoption cannot be recognized in
Switzerland[314] or where
an adoption has not been granted abroad. This Ordinance governs the placement
in Switzerland of children coming from abroad
for subsequent adoption by persons
domiciled in Switzerland.
341. Under the terms of the OPE, the placement
of children outside the family home is subject to authorization and supervision.
This
authorization may be delivered and the supervision exercised by the
tutorship authority in charge where the placement has been arranged.
The
cantons may transfer these tasks to other authorities or
services.
342. According to article 4 of the OPE, an authorization is
required in order to place a child of foreign nationality who has lived
until
then abroad, with a view to subsequent adoption, in cases where the child is
aged less than 18.
343. As mentioned earlier, under the OPE, the
placement authorization can be issued only if there is no legal impediment to a
future
adoption and if it appears likely that the adoption will be granted. In
the light of article 21 (c) mentioned above, it is worth
noting that in the
event of the placement of a foreign child, further conditions need to be
satisfied, relating partly to the qualities
of the foster parents and partly to
the consent of the authority in charge of the placement in the State of
origin.[315]
344. Thus when children of foreign nationality who have lived abroad
until then are placed for adoption, the foster parents must be
prepared to
accept them with their particularities and to teach them about their country of
origin in a manner suitable for their
age. The foster parents must also
submit:[316]
A medical report on the health of the child;
A report on the life the child has had until then, insofar as the details are known;
A document certifying that the parents have consented to the child’s adoption or a statement by an authority from the child’s country of origin giving the reasons why such consent could not be given;
A statement by a competent authority in the child’s country of origin certifying that the child may be placed with foster parents in Switzerland.
345. By virtue of the commitment they had to undertake prior to the
placement being
authorized,[317] the foster
parents must provide for the child’s maintenance in Switzerland as if he
or she were their own, even if adoption
is not granted, and they must repay the
public authority
any maintenance costs for the child that the authority has incurred on their
behalf. This maintenance obligation still applies even
if the child has to be
placed elsewhere. It will be extinguished only if the child is adopted by third
parties or returns to his
or her country of origin.
346. The
authorization delivered for the adoption of a child of foreign
nationality[318] will take
effect only once the visa has been issued or when the issue of a residence
permit is no longer in
doubt.[319]
347. Even
if children have been adopted in their State of origin, they are considered in
Switzerland to be children placed with foster
parents, barring exceptional cases
where the foreign adoption can be recognized in
Switzerland.[320] The
future adoptive parents are not yet vested with parental authority, but are
subject to the supervision of the placement authority.
The legal representative
of the child is generally a tutor, who supervises the probationary period and
must give consent to the
subsequent adoption. If any problems arise and cannot
be resolved within a reasonable delay, the child’s legal representative
may, if necessary, place the child elsewhere.
348. As in the case of a
purely national adoption, the child enjoys strong legal protection during the
probationary period.
349. Some inequalities do remain, however, with
regard to rehabilitation measures under disability
insurance.[321] According
to article 9, paragraph 3, of the Federal Act concerning Disability Insurance of
19 June 1959 (LAI[3]),
foreigners under the age of 20 are entitled to undergo rehabilitation if, when
the disability occurs, their father or their mother
is insured and, in the
case of foreigners, has contributed for at least one full year or has resided
uninterruptedly for 10 years
in Switzerland. Furthermore, the child
concerned must have been born disabled in Switzerland or, when the disability
occurred, must
have resided in Switzerland uninterruptedly for at least a year
or since birth. This means that children moved to Switzerland for
adoption are
in any case not entitled to rehabilitation measures provided for by the LAI
prior to the grant of adoption, that is,
for at least two years. If the
adoptive parents are of foreign nationality, the child is entitled to benefits
only if they meet
the conditions mentioned above, even after adoption has been
granted. It should be noted, however, that some of the gaps in social
insurance
have been filled by the Federal Act concerning Sickness Insurance of 18
March 1994
(LAMal[323]). After the
forthcoming ratification of the Hague Convention on Protection of Children and
Cooperation in respect of Intercountry
Adoption (see subparagraph c), the number
of problem cases should be reduced even further, since the Convention
substantially facilitates
the recognition in Switzerland of foreign
adoptions.
350. Until they have been adopted, whereupon they take on the
nationality of their Swiss adoptive parents, children remain foreigners
and
therefore require a residence permit. A permit may be granted to a child placed
with foreign foster parents provided that the
conditions stipulated in the Civil
Code for the placement of children and adoption have been
met.[324] Such permits are
delivered by the relevant cantonal authorities. The latter work in close
contact with the services specializing
in the protection of children and young
people, which issue authorizations with a view to adoption. If an adoption is
not granted
and fails again after a further placement, the residence permit
which has been granted cannot be extended. However,
in practice children in these cases are regularly allowed a residence permit
- which must be renewed each year - if there are important
reasons for doing so.
So far there have never been any cases of forced returns. In view of the
forthcoming ratification of the above-mentioned
Hague Convention, it is
expected that children will be granted entitlements to reside in Switzerland in
such cases.
351. The situation is different in the case of foreign
nationals resident in Switzerland wishing to adopt children. Until they are
adopted, they also need a residence
permit.[3] Once they have
been adopted, they are included in the temporary or permanent residence permit
of their adoptive parents, provided
that the necessary conditions are
fulfilled.
352. The question whether the situation of children under the
law relating to aliens could be further improved is currently being
considered
as part of the revision of the Federal Act concerning the Permanent and
Temporary Residence of
Foreigners.[326]
(b) Measures against undue material gain arising from an international adoption
353. In order to ensure that the placement of a
child does not give rise to undue material gain for the persons involved, under
Swiss
law intermediaries are entitled only to reimbursement of their expenses
and modest remuneration for their
work.[327] It is forbidden
for foster parents to pay any sums to an intermediary or to natural parents for
care given to the child.
354. A bill which is currently being drafted
(see also under section (c) below) takes account of the obligation for
contracting States
under the Hague Convention on Adoption to introduce measures
against child trafficking. Under article 24 of the new law, prison
sentences
will be handed down against anyone who, in exchange for the offer of material
gain or other benefit, succeeds in obtaining
the agreement of biological parents
or other custodians of the child, or that of an authority or persons involved in
the adoption
procedure, for a child normally resident abroad to be placed in the
care of a person normally resident in Switzerland with a view
to adoption. Any
person acting in a professional capacity or as part of a criminal gang or
organization shall be sentenced to imprisonment
for not more than 10 years and
shall be fined up to Sw F 100,000.
(c) Bilateral and multilateral agreements
355. Since 1 April 1973, Switzerland has been
bound by the European Convention on the Adoption of Children of 24 April
1976.[328] Moreover, it is
still bound to Austria and the United Kingdom by the Hague Convention on
Jurisdiction, Applicable Law and Recognition
of Decrees Relating to Adoptions of
15 November
1965.[329]
356. In
Switzerland, preparations are under way for the ratification of the Hague
Convention on Protection of Children and Co-operation
in Respect of Intercountry
Adoption of 29 May 1993 and a federal law is being drafted to give effect
to the Convention in Swiss
legislation.[330] The new
law incorporates the procedure set out in the Hague Convention in existing Swiss
placement and adoption procedures. Provisions
will also be made to ensure the
protection of the child in the event of international adoption and especially to
combat undue material
gains and child
trafficking. These measures apply whether or not the child comes from a
contracting State. Lastly, two amendments are to be made
in the Civil Code, one
centralizing responsibility for the placement of children with a view to
adoption with a single cantonal authority,
and one to reduce to one year the
probationary period that must precede adoption under the terms of
article 264 of the Civil Code.
357. Pending the entry into force in
Switzerland of the above-mentioned 1993 Hague Convention, Switzerland and
Romania concluded a
cooperation agreement with respect to adoption on 2 October
1997.
2. Statistical data
358. In 1997, 1,043 children were adopted in
Switzerland. There were practically the same number of girls as boys (91 boys
and 100
girls in 1990, 99 boys and 100 girls in 1995, 87 boys and 100 girls in
1997). Most of the children (544 in 1997) were adopted by
a married couple.
Also in 1997, 459 children were adopted by their stepfather, 18 by their
stepmother and 22 by a single person.
359. In 1997, 502 children of
European origin were adopted, including 310 of Swiss nationality. Another 71
adopted children came
from Africa, 251 from America (especially Brazil and
Colombia) and 228 from Asia (especially India and Thailand).
360. In
1997, 295 of the 1,043 children adopted were aged from 0 to 4 at the time of
adoption. Another 348 were aged from 5 to 9,
206 from 10 to 14, 120 from 15
to 19 and 74 were over 20 years of age.
I. Periodic review of placement (art. 25)
361. Under Swiss
filiation law, children may be withdrawn from their parents and placed
appropriately in conformity with protective
measures if the danger cannot be
averted by any other
means.[331] Article 313 of
the Civil Code stipulates that measures taken to protect a child must be adapted
to any change of situation. This
gives rise to a duty to monitor any measures
taken on behalf of the child. The need for periodic monitoring also arises from
the
general principle of Swiss filiation law, according to which all measures
taken by the authorities must be based on the child’s
best
interests.
362. Supervision of family placements and of institutions
taking in children in order to care for them, educate them and train them,
takes
the form of visits by a qualified person appointed by the competent authority.
Such visits should take place as frequently
as necessary, but at least once a
year in the case of families and at least every two years in the case of
institutions.[332] The
person carrying out the visit must make sure that the conditions that govern the
placement are duly met.
363. The requirement that placement should be
made in an appropriate establishment gives rise to an obligation on the part of
the
tutorship authorities to supervise periodically the implementation of such
measures. The law also provides that the person concerned
must be
released as soon as his or her condition allows
it,[3] which implies
checking that condition
regularly. The person undergoing deprivation of
liberty for purposes of assistance or someone close to that person can appeal to
the judge, which is also possible if an application for release is
rejected.[334] Children
under the age of 16 years who have been placed in an establishment cannot
themselves appeal to the judge against
internment,[335] although
someone close to them can bring the appeal. An appeal may also be brought
before the Federal Court against placement in
an establishment or refusal to
grant a release.
J. Neglect, exploitation or abuse (art. 19), physical and
psychological
recovery and social reintegration (art. 39)
364. Apart from
adopting legislative measures, especially in the form of protective provisions
of the Civil Code[336] and
the Criminal Code, Switzerland has established and continues to improve a number
of structures chiefly aimed at prevention and
assistance to victims of
maltreatment.
1. Legislative measures
(a) Criminal law
365. In the first
place, criminal law protects every person against physical violence through its
provisions concerning offences against
life and physical
integrity.[337] Among
those provisions, it is worth mentioning article 136 of the Criminal Code, which
sentences to imprisonment or a fine anyone
who has given a child under the age
of 16 or who has made available to that child alcoholic drinks or other
substances in such quantities
as to endanger the health of the child, or
narcotics in the meaning of the Federal Act concerning Narcotic Drugs of 3
October
1951.[338]
366. Secondly,
the criminal law protects all persons who have suffered offences against their
sexual integrity. The criminal law
gives special protection to young people
against disturbances that might affect their sexual development (arts.
187-200).[339] The age
limit for protection
is 16 years,[340]
the age at which young people may be left free to make their own sexual choices.
The protective provisions that apply to children
in particular include
articles 187 and 188 of the Criminal
Code,[341] which punish any
act that endangers the development of minors, as well as sexual acts with minors
under the age of 16 or with dependent
persons over the age of 16, and article
213 of the Criminal Code, which punishes incest.
367. Criminal
proceedings for offences of a sexual nature committed with children remain valid
for 10 years in order to take account
of the fact that children often repress
sexual acts which they have been forced to commit or keep silent owing to
threats from the
perpetrator. The current limitation period of 10 years,
however, seems too short in some cases. Instead, a draft statute of limitations
is being prepared, which would suspend prosecution for acts of a sexual nature
committed with children under the age of 16 until
the victim has reached the age
of 18.
368. The Criminal Code also
imposes[342] the obligation
and the right to notify the tutorship authority of any situations that may be
dangerous for children. If, in the
course of prosecuting an offence committed
against minors, the competent authority finds that other measures are needed,
it must immediately notify the tutorship
authority.[3] The latter
must decide, in each case, whether any further measures need to be taken, and,
if so, which, and whether any other authorities
or services need to be notified.
The idea that the social services should be obliged to notify the tutorship
authority or some other
service designated for the purpose by cantonal law, if
they are unable effectively to protect the child victim, is widely accepted
among cantonal authorities. Under the terms of article 358 ter of the
Criminal Code, persons normally bound to secrecy for professional or official
reasons may be released from that
obligation[3], in order to
notify the tutorship authority of offences committed against minors which have
come to their notice[3].
Also under article 358 ter of the Criminal Code, the persons concerned
may dispense with the sometimes cumbersome need to obtain the consent of a
higher authority
and may, in case of emergency, provide information immediately.
Once the tutorship authority has been notified, it is not generally
speaking
obliged to initiate criminal proceedings. It will adopt a cautious approach,
however, especially to avoid any secondary
victimization. But in general it
will not on that account drop all criminal proceedings. In some cases, criminal
proceedings are
unavoidable in the general interest, whenever a wider circle of
potential victims needs to be protected. Whichever the case may
be, in order to
ensure proper enforcement of article 358 ter of the Criminal Code, the
tutorship authority must have the necessary means to take action at short notice
(e.g. safeguarding threatened
persons, or supplying details to the
authority where necessary).
(b) Civil law
369. The measures provided under family law to
protect children when their interests are threatened are referred to in the
commentary
relating to articles 3 and 9 of the Convention. Thus when the
development of a child is threatened and the parents are either unwilling
or
unable to remedy the situation, the tutorship authority will automatically take
whatever measures are required to protect the
child.[346] The tutorship
authority must also do so for children placed with foster parents or living, in
other cases, outside the family
unit.[3] Generally
speaking, the children concerned are living with foster families, in day care
institutions, in homes, in youth hostels
or in residential communities. The
authorities must automatically take action as soon as they have been informed of
the danger threatening
the development of the child. Anyone, especially the
child or either of the parents, can report the case to the authority.
370. In articles 307 et seq., the Civil Code lists a number of
measures which can be taken to protect the child, ranging from simple
instructions to parents
to the withdrawal of parental authority, and including
the appointment of a guardian, the limitation of parental authority and the
withdrawal of the child’s
custody.[3] Appeals may be
lodged against the tutorship authority’s
decisions.[3] Under
article 317 of the Civil Code, the cantons must take appropriate measures to
ensure effective coordination between the services
in charge of protecting
children and assisting young people, the tutorship authorities, authorities in
charge of measures relating
to the criminal law for children and all other
services involved, including schools.
2. Federal measures
371. On a mandate by the DFI, the Working Group
on Maltreated Children published a report in 1992 on the problem of
ill-treatment
inflicted within the family. The report proposes a series of
practical recommendations, intended both for the federal and cantonal
authorities and the professional circles concerned. Following the opinion of
the Federal Council on the report, the Central Organization
for Family Questions
of the Federal Social Insurance Office was instructed to perform some of the
coordination tasks related to the
protection of children. For instance, this
body provides information on assistance and training facilities, coordinates
research
work and supports prevention projects. Since 1996, it has been
allocated an annual budget of Sw F 150,000 (Sw F 250,000 in 1999
and about Sw F
315,000 in 2000) for projects to prevent the maltreatment of children. The
projects undertaken since 1996 include:
The establishment of a computerized file (to be made available on the Internet) and the publication of a Swiss directory of assistance and advice services for maltreated children;
Establishment of continuing training courses for specialists dealing with child maltreatment. More courses are provided under the Federal Act concerning Assistance to Victims of Offences (LAVI);
Financial support for the projects of private organizations, such as: films or video clips on the prevention of violence in the family; widely circulated brochures on child maltreatment and on non-violent education; an exhibition of children’s drawings on the theme “Better have peace”, which consisted of 400 drawings and was shown in four towns each representing a linguistic region in 1998;[350] an exhibition on parents’ training, also shown around Switzerland; a video clip on prevention of the “shaken child” syndrome; research into ill-treatment and sexual abuse in sport;[351]
Research for the preparation of a global concept of prevention of ill-treatment and sexual abuse and research into the commercial exploitation of minors in Switzerland.[3]
The following are some examples of measures taken or projects run by
other bodies or organizations:
After the issue was raised twice in Parliament, the Government has been considering the possibility of taking public relations measures in the field of violence against children.[353]
The telephone answering service Association Help-o-phone, for children and young people in distress, subsidized by the Confederation (OFAS), has existed since 1993. As of March 1999, it can be called from anywhere in Switzerland on a single 3-digit number (147). This easily accessible answering service allows children, anonymously and confidentially, to express their feelings freely. Financial support is also provided to train the persons answering the calls in order to ensure that they are properly qualified.
The interactive Internet prevention server CIAO (www.ciao.ch), where young people can ask questions concerning maltreatment, sexuality, health, drug addictions and children’s rights which gives reference addresses.
The Federal Bureau for Equality between Women and Men organized a roving exhibition in 1992 to make the population aware of the problems of sexual abuse and incest affecting girls.
The Federal Youth Commission made 1998 the year of “Youth and violence”. In addition to the publication of a report with substantive articles and interviews of young people, one of the main activities has been workshops in Biel, where specialists have met to discuss the topic and make practical suggestions. An interactive play was put on for the occasion.
The Federal Sports Office and the Swiss Olympic Association have looked into the prevention of sexual abuse in sport. A working group was set up, in order in particular to consider the possibility of introducing training or other forms of action, as well as informing the public about help and guidance centres.
The National Research Programme on everyday violence and organized crime
(PNR40) was launched in 1997, with more than 20 research
projects currently
under way. A first objective has been to describe the phenomenon and
analyse its effects, the next aim being
to develop and consider prevention
measures and other action in those two areas. As far as everyday violence is
concerned, the projects
concentrate on violence in private life and
violence among young people, especially at school, as well as
sexual violence.
3. Cantonal and communal measures
372. Owing to Switzerland’s federalist
system and its principle of communal independence, the cantons and communes also
play
an essential part.
(a) The cantonal services for the protection of
youth deal with practically all aspects concerning the development of a child
(medical,
psychological, social, financial, legal, cultural and leisure). The
main official services dealing with maltreated children are
the youth offices,
the young people’s health services, the youth protection, child guidance,
tutorship and child psychiatry
services, the children’s hospitals, the
consultation centres under the Federal Act concerning Assistance to Victims of
Offences
(LAVI) and the police.
(b) Efforts have been made in the last
few years to ensure better ongoing training for childcare professionals in the
problems of
maltreatment.[354] Efforts
have also been made in the area of parent
training.[355] This is on
the assumption that helping and supporting parents in their task is also an
excellent means of prevention and diminishes
the likelihood that they will
neglect or use violence against their children. Centres for marriage
counselling, family planning,
sexual education and guidance for mothers and
children, as well as meeting points, also play an important
role.
(c) Several cantons have improved their system of prevention and
action in the event of child maltreatment. Examples are the persons
in charge
of preventing ill-treatment against
children,[356] the CAN
(Child Abuse and Neglect)
teams,[357] the
Inter-departmental Cantonal Commission for the Protection of
Children[358] and
inter-professional support and guidance groups dealing with the maltreatment of
children.[359]
(d) The cantons regularly publish the addresses of advisory and assistance
services in the press. In addition, many cantons distribute
brochures and
leaflets. There are specialists or services everywhere that inform about
emergency telephone numbers and the numbers
of specialized services dealing with
the problem. Specific information is also supplied on the possibilities of
assistance during
regular courses on sexual education or health
education.
(e) Information concerning the maltreatment and sexual
exploitation of children and on children’s rights and ways of defending
themselves is included in the education and programmes provided at school.
Child protection associations and health groups cooperate
with schools to
discuss the issue of maltreatment and possible remedies. The schools also run
consultation services for cases of
ill-treatment or, more generally, a surgery
(run by nurses) ready to help maltreated children. Some cantons also take
preventive
measures, for instance by distributing practical brochures, holding
information meetings, distributing circulars and training teachers,
monitors and
educators working with children. Other preventive actions include theatre
plays, films[360] and
roving exhibitions shown in schools.
4. Help for victims of offences and reintegration of child victims
373. With regard to help for children who have
been the victims of offences, there are generally speaking two
tendencies:
From a legislative point of view, towards better protection of child victims in criminal procedure, at both cantonal and federal level.
In practice, towards improved coordination between services able to provide care for child victims.
(a) Legislative measures
374. According to
article 124 of the new Federal Constitution, the Confederation and the cantons
are responsible for ensuring that the victims of offences against life and
physical integrity
obtain assistance. Fair compensation must be granted to
victims who are left in difficult circumstances as a result of an
offence.
375. The Federal Act concerning Assistance to Victims of
Offences (LAVI)[361]
fulfils the legislative mandate contained in the Constitution. It is
supplemented by the Ordinance on Assistance to Victims of Offences
(OAVI).[362] Assistance to
victims comes under three headings: advisory assistance to victims, protection
and rights of victims in criminal
procedure, compensation and moral reparation.
Regarding the rights of victims and their protection in criminal procedure, the
LAVI
allows any victim of a sexual offence the right to refuse to confront the
accused, unless this is absolutely necessary from the point
of view of the right
of the defendant to be heard. Similarly, the authorities must avoid a
face-to-face meeting between the accused
and the victim when the latter so
requests. The Act concerning assistance to Victims of Offences provides
only minimum legislation,
but is supplemented by other federal and cantonal
measures (in the form of insurance, public assistance, etc.). Several
moves[363]
to improve the protection of minors have been introduced in
Parliament and in the Government.
On 20 March 2000, the Government decided
to begin drafting an amendment to the LAVI, in order to adopt new procedural
provisions that
would strengthen the position of the victims of sexual offences
in criminal procedure visàvis the perpetrator of the offence,
especially
in the case of minors under the age of 18.
376. Current legislation on
compulsory sickness insurance
(LAMal)[364] provides
measures to deal with the consequences of maltreatment, both for children and
for adults.
(b) Services of assistance to victims
377. All the cantons have set up one or more
consultation centres providing assistance to victims. Some cantons have
consultation
centres that specialize in children, in women and young girls, in
men and boys or in victims of offences against sexual integrity.
The
consultation centres are responsible in particular for providing victims with
medical, psychological, social, material and legal
aid. Such services are
provided free of charge by the centres. They are provided in addition to
assistance given by youth offices,
psychological and psychiatric services,
family educational guidance centres and other institutions, which also offer
contact points
for maltreated or abused children and young people, as well as
shelter.
378. Mention should also be made of the European Convention on
the Compensation of Victims of Violent
Crimes,[365] which came
into effect for Switzerland on 1 January 1993 and which requires that
Contracting States give the maximum possible assistance
in connection with the
matters covered by the Convention (art. 12). To that end, each Contracting
State must designate a central
authority to receive, and to take action on,
requests for assistance. In Switzerland, this authority is the Federal Office
of Justice.
5. Statistics
(a) Statistics concerning criminal convictions in Switzerland
379. Among punishable
acts against sexual integrity, acts of a sexual nature against children (art.
187) occur most frequently. In
1997, 319 persons were convicted for this type
of offence. The most common sentence passed is imprisonment in such cases. In
92
of the 319 cases to which article 187 applied in 1997, violence or coercion
had been used; in 19 cases, there was sexual coercion
(art. 189); in 20 cases
rape (art. 190) and in 20 others acts of a sexual nature committed against a
person incapable of discernment
or resistance. Fifteen convictions were
obtained in 1997 for acts of a sexual nature with dependent persons (art.
188).
380. Girls are more often the victims of sexual maltreatment than
boys. Boy victims of sexual aggressions account for 30 per cent
of the
total, while 82 per cent of the perpetrators are men. Paedophilia mainly
comprises homosexual maltreatment of children.
The age of
victims indicates marked preferences, in that the greatest number are
concentrated in the 12 to 16 age group.
381. According to the criminal statistics kept by the Federal Police Office,
among offences reported, there were considerably more
offences against the
sexual integrity of children in 1997 than in 1996. This increase is
attributable to the increasing awareness
of the public - to which Switzerland
attaches great importance - with regard to sexual abuse of
children.
382. With regard to simple bodily injuries against a child of
whom the perpetrator had custody or to whom he or she owed a duty of
care (CP,
ch. 2, art. 123 (2)), 39 convictions were obtained in 1997.
(b) Recent inquiries
383. The statistics
for criminal acts do not, however, reflect the magnitude of the phenomenon.
Most cases remain outside the statistics,
which cover only cases falling within
the scope of the Criminal Code, for which a complaint has been lodged. The
records of the
LAVI[3]
consultation centres shed a little more light: in 1996, 3,493 persons sought
assistance in a consultation centre following a sexual
offence. That same year,
2,582 complained of physical injuries. Of the total, 10 per cent were children
below the age of 7 and
11 per cent aged between 7 and
16.
384. Children and young people account for about a fifth of persons
assisted by the consultation centres for assistance to victims
(Assistance to
Victims of Offences, third report of the Federal Office of Justice to the
Federal Council concerning the implementation
and effectiveness of assistance to
victims [1993-1998], Bern, May 2000, p. 12).
385. It is generally
estimated that at least one girl in 5 and one boy in 10 are the victims of
sexual abuse before the age of 18.
The research carried out by Dr.
Halpérin et al.
(1997)[367] among
1,193 young people between the ages of 13 and 17 found that 33.8 per cent
of girls and 10.9 per cent of boys had been abused
by the age of 16,
including more specifically 60.4 per cent of girls and 30 per cent of
boys with physical contact (i.e. 20.4 per
cent of girls and 3.3 per cent of boys
interviewed in the inquiry). Niederberger
(1998)[368] in his
representative inquiry conducted in German-speaking Switzerland among 980 women
(aged 20 to 40) concerning experiences of
abusive sexual activity before the age
of 16 obtained similar results. At least one woman in three has experienced
either an act
or a contact which may be described as sexual abuse. Too many
children also suffer from negligence, socio-affective deficiencies
or
psychological maltreatment. All types of maltreatment, but in particular sexual
abuse, imply psychic suffering.
386. While parents and other parties are
more prone to fear and to recognize abuses committed by strangers and often
react more appropriately
(through complaints or support and care for victims),
it must be said that strangers in fact account for “only” 10 per
cent of all abuses. The other 90 per cent are committed by parents,
relatives or persons known to the child and many remain unreported
or
unpunished, so that victims receive no care at all. Incest between
fathers and daughters accounts for 84 per cent of abuses committed
by
persons close to the victim.
387. The more recent the inquiries are, the higher are the estimates of the
occurrences, probably on account of heightened social
recognition of the
situation. Recent legal data show that abused children are being abused at an
increasingly young age, although
this could be explained by better knowledge of
the symptoms and therefore earlier complaints.
VI. BASIC HEALTH AND WELFARE
A. Disabled children (art. 23)
1. Rights of disabled children and principle of non-discrimination[369]
388. Switzerland recognizes the right of disabled children to a full and
decent life. It promotes their autonomy and participation
in the active
life of the community. The Federal Constitution (FC) provides for dual
protection of disabled children. Under article 8 (2) of the Constitution, no
person may be subjected to discrimination on account of a physical, mental, or
psychological deficiency. In addition, in accordance
with article 8 (4) of the
Constitution, the law provides for measures to eliminate the inequalities
affecting disabled persons. The latter provision comprises a veritable
mandate
conferred on the legislature and is addressed to all levels of State power -
Confederation, cantons and communes, which must
endeavour to guarantee the
realization of fundamental
rights[3] and also ensure
that they are realized in relations between
individuals.[3] In this
connection, it should be noted that a federal bill on the elimination
of the equalities affecting disabled persons is under
preparation.[3]
2. Disability insurance measures
389. Disability insurance (AI) is a branch of
social security for which every person resident in Switzerland or engaging in a
gainful
activity in Switzerland is obligatorily liable. Thus, children are also
covered and eligible for AI benefits. In addition, disabled
children are
covered by sickness insurance (which, as will be seen in the observations on
article 24, is obligatory for the whole
population) for care not covered by
disability insurance.
390. “Rehabilitation” benefits are
among the benefits granted by AI. The purpose of these benefits is to restore,
improve,
safeguard or promote the use of the earning capacity of insured persons
who are disabled or under threat of becoming disabled in
the short term. AI
comprises several sorts of rehabilitation benefit: medical measures, measures
of an occupational nature, special
school training measures, measures for
disabled insured persons under the age of 20 and auxiliary
resources.
391. The special school training
measures[3] for insured
persons under the age of 20 consist of subsidies for special school
training for insured persons under 20 who, because
of their disability, are
unable to attend State school or cannot be expected to attend State school. The
training comprises normal
schooling and, for minors incapable of - or having
difficulty in -
assimilating the basic school disciplines, measures intended to develop
either their manual dexterity or their ability to perform
everyday acts or
establish contacts with those around them.
The subsidies comprise
contributions to the cost of schooling and meals, and special allowances to
cover the cost of transport to
school, or for pedagogical and therapeutic
measures necessary in addition to the education provided at the special school.
Disabled
children who have completed their second year and are not placed in an
institution for special school training or for rehabilitation
measures are
entitled to a contribution to the cost of the special care they are
receiving.
392. Measures of an occupational nature granted to all insured
persons, including young people, comprise:
Vocational guidance to insured persons whose disability makes it difficult for them to choose an occupation or to continue their previous activity;
Coverage of additional costs caused by the disability for initial vocational training and further vocational training or preparation for auxiliary work or work in a sheltered workshop;
Placement in a new occupation if this is necessary on account of the disability;
Re-education in the same occupation;
Action to find appropriate employment;
Grant of capital on certain conditions, in order to enable the insured person
to undertake or develop an independent activity, and
to cover the cost of any
structural alterations to the workplace made necessary by the
disability.
393. In addition, AI grants auxiliary resources as needed by
the disabled person in order to engage in a gainful activity, do his
or her
normal work, study or learn a trade, or for purposes of functional habituation.
These include prostheses, artificial legs,
hearing aids, artificial eyes, guide
dogs for blind persons, wheelchairs, motorized vehicles and auxiliary resources
for work purposes.
394. Insured persons are entitled to rehabilitation
measures as soon as they are needed on account of their age or state of health.
Subject to different regulations contained in various international conventions,
foreigners under the age of 20 and having their
habitual residence and domicile
in Switzerland must fulfil the following additional conditions at the time when
the rehabilitation
measure becomes necessary:
Either they have paid a full year’s contributions or have had 10 years of uninterrupted residence in Switzerland; or
They were born disabled in Switzerland or have been living in Switzerland
without interruption for at least one year or since their
birth, and their
father or mother is insured and, if a foreigner, has paid contributions for at
least a full year or has lived in
Switzerland for 10 years without
interruption.
395. Mention should also be made of benefits under LAI
article 74,[3] under which
associations providing private assistance to disabled persons and organizations
training specialists in occupational
rehabilitation receive subsidies for the
following activities:
Advice and assistance to disabled persons and their relatives;
Special courses to increase disabled persons’ skills;
Training and further training for personnel providing occupational
assistance, training and rehabilitation for disabled persons.
396. Of
course, children also benefit from these measures, particularly with regard to
training and leisure activities, which contribute
greatly to their more
effective social integration.
3. Measures at the cantonal level
397. The assistance offers described below are
organized and managed in close collaboration with the disability insurance
scheme.
398. In all the cantons, specialized services, (paediatricians,
paediatric hospitals, nurses for infants, counselling services for
mothers) deal
with early identification and assistance to children affected by a disability,
and with counselling to be given to
their parents. Children having special
needs are currently cared for and supported by highly specialized early
education services,
both mobile and fixed. Disabled children of school age
continue to receive mobile or fixed care (therapeutic teaching measures,
speech
therapy, psychomotor care, treatment of dyslexia). Account is also taken of
special needs through special classes or smaller
classes, or placement in
specialized homes where they are taught. In this connection, attention should
be drawn to a growing tendency
to integrate disabled children into normal
classes. [3]
399. Recognized assistance measures are free of charge for families with
disabled children. In the case of residential institutions,
parents
contribute towards accommodation costs (e.g. maintenance).
400. All the cantons have legal provisions relating to the monitoring
and training of disabled children, whether it be a law on the
protection of
young people, an appropriate article of school legislation, a law on special
schools or a law on disabled
persons.[3]
401. Moreover,
in all regions of the country, regional or national associations work in the
interest of particular groups of disabled
persons (e.g. diabetes, autism,
deafness, blindness, epilepsy, etc.).
402. By way of example, mention may
be made of a few special measures taken at the cantonal level:
The “Independence and assistance services” pilot project has been set up in the cantons of Vaud and Zürich. Thanks to private personnel, namely personal “assistants”, physically disabled persons are able to live outside an institution. They themselves organize the assistance they need. Through this project, these persons are taking an enormous step towards independence and individual responsibility;
The “Special needs of young children” project is based on
collaboration between the Vaud branch of Pro Infirmis (see below)
and the Vaud
University Hospital Centre (CHUV). The service assists an average of 400
families a year, including about 80 newborns.
Family monitoring is
necessary at the time of hospitalization of very premature infants or in
the case of disabilities reported
at birth. The work comprises three main
facets: counselling, informing and guiding parents. The aim is to inform them
of their
entitlements vis à vis social insurance, the resources available
(home help), the institutions providing early care and pre-school
institutions.
The project social workers assist the families until the child reaches the age
of 7 or 8 since another important service
for families, the Mobile Education
Service (see below), does not deal with children below school age, i.e. about 5.
In addition,
children who have problems other than disabilities diagnosed at
birth at the CHUV, e.g., children whose deficiencies become apparent
at a later
stage, are covered;
A similar service has been provided since 1989 between Pro Infirmis (Aargau)
and Aargau cantonal hospital (some 130 families are currently
receiving
assistance);
A research project entitled “Partnership between parents of disabled
children and professionals: experiences and expectations
of parents” is
being carried out in the Faculty of Psychology and Education Sciences at the
University of Geneva, in the context
of the National Scientific Research Fund
(FNRS) and with the participation of the Lausanne School of Social and
Pedagogical Studies.
This study is geared to the standpoint of the parents of
disabled children in their relations with the various specialists who become
involved in care for their children. The study will attempt to identify their
experiences and desires, the extent of their difficulties,
and the strategies
put into effect in order to overcome them.
403. The cantons, like the
Federal Office for Social Insurance (OFAS), also support private organizations,
which are very active in
this field. By way of example, reference may be made
to the following organizations;
Through a network of 50 services in all regions, Pro Infirmis counsels
disabled persons and their relatives. As an umbrella association,
it supports
and coordinates a large number of Swiss and inter-cantonal associations
providing specialized assistance and mutual assistance.
Pro Infirmis offers
services which include transport, advice on construction, home learning, home
therapy groups, and cultural and
recreational clubs;
Insieme is the Swiss Federation of associations of parents of mentally
disabled persons. It was set up in 1960 and comprises 56 regional
and cantonal
associations totalling some 30,000 members (parents, specialists, friends).
Insieme represents the interests and defends
the rights of mentally
disabled persons and their relatives vis-à-vis federal departments
and authorities and umbrella organizations
providing private assistance to
disabled persons. It informs the general public of the needs of mentally
disabled persons and does
everything possible to integrate these persons within
society. It designs and supports projects which aim at improving the quality
of
life and developing the autonomy of mentally disabled persons. It is
supported by the Federal Office for Social Insurance and
recognized by the
Central Bureau for Charitable Activities (ZEWO);
The Mobile Education Service (SEI) offers home help for pre-school children
suffering from development difficulties. This service
is provided by doctors
and nurses, social workers, psychologists, teachers and representatives of
various other specialized services.
Cooperation begins with the agreement of
the parents. When contacts have been made, the specialized teacher will visit
the family
regularly and will thus be able to get to know the child and, with
the parents, observe his or her abilities in various fields.
This observation
period will make it possible to promote the child’s development, in
accordance with jointly defined objectives,
and with appropriate means. The
SEI’s work generally continues until the child enters a specialized
institution: day nursery,
kindergarten, special or public education class.
Throughout the period of care, the specialized teacher works with all the
persons
dealing with the child. SEI teachers hold a special education diploma,
have received supplementary training in early education and
have experience in
the area of special education. They are all members of the SEI Teachers’
Association for French-speaking
Switzerland and receive continuing training.
Every SEI teacher is attached to a specialized school;
In Switzerland there are several mixed day nurseries where disabled children are integrated. The originality of the “Ensemble” kindergarten project in Geneva lies in the fact that it offers a mixed environment with an ordinary kindergarten alongside a specialized kindergarten, with group activities in addition to the free intermingling of disabled and ordinary children, in accordance with the children’s wishes and
capacity.
B. Health and health services (art. 24)
1. Medical assistance for all children
404. In Switzerland,
the right to enjoy the best possible physical and mental health is guaranteed
both by the Federal Constitution and by article 12 of the International Covenant
on Economic, Social and Cultural Rights. In conformity with article 41 (1) (b)
of
the Constitution, the Confederation and the cantons undertake, over and above
individual responsibility and private initiative, to ensure that every
person receives the care necessary for their health.
It should also be mentioned that the constitutional right guaranteeing
the individual the right to minimum conditions of
existence[3] also
encompasses the minimum medical assistance necessary for decent
survival.
405. It is social security, and more particularly the sickness
branch, which guarantees realization of the right to health care.
All persons
resident in Switzerland are protected under obligatory sickness insurance as
regards the provision of medical and pharmaceutical
care as defined by law
(ambulatory and hospital treatment, in particular). This social insurance
(governed by the Federal Act concerning
Sickness Insurance (LAMal), of 18 March
1994)[378] comprises the
compulsory insurance for care following a sickness or accident or in the case of
maternity. The whole population should
in practice be insured thanks to the
supervisory role performed by the cantons, automatic affiliation if necessary,
the impossibility
of leaving one insurer without being taken over by another and
the financial “penalty” laid down in the event of late
affiliation.
The relevant provisions also concern children who, like other persons, are
insured on an individual basis. Persons
required to insure themselves or insure
a minor have a period of three months in which to do so as from the time they
take up residence
(or from the date of birth) in Switzerland. If this time
limit is complied with, the insurance operates retroactively.
406. The
financing of health insurance is based primarily on the premiums paid by insured
persons and on their participation in costs
(deductible and percentage
contribution). Every insurer must itself set the premiums necessary to cover
its expenditure, and insurers
may not grade premiums according to the age, state
of health, sex or income of the insured person. However, children enjoy more
favourable provisions than adults. Insurers must fix lower premiums for insured
minors. As to the participation of insured persons
in costs, no deductible
(fixed amount to be paid by the insured person) is charged and the maximum
amount of the percentage contribution
towards costs is Sw F 300 a year (as
opposed to Sw F 600 for adults). Children from the same family who are insured
with the same
insurer together pay a maximum of Sw F 830. The
insurer’s contribution to the purchase of corrective lenses
amounts to Sw
F 200 every three years for adults and Sw F 200
every year for children up to the age of 18.
407. In conformity with
the requirements of the Convention, health insurance for children covers
preventive medical measures, such
as the examination of the health and
development of pre-school children, certain tests, and certain vaccines and
boosters.
408. In addition, the LAMal has expressly recognized the need
for access to information on health for all groups within society, establishing
in article 19 the obligation on insurers to manage jointly and with the cantons
an institution whose purpose is to initiate, coordinate
and evaluate measures
designed to promote health and prevent diseases. The Swiss Foundation for the
Promotion of Health, whose headquarters
are in Lausanne, has a national role in
informing the public, economic milieux and institutional representatives of
society, making
them aware of what is involved in health and motivating them to
undertake to promote health. It designs and directs national programmes
in
priority areas, while at the same time encouraging and coordinating cooperation
between all the parties concerned.
2. Promotion of health and other measures taken
(a) Promotion of health in Switzerland
409. (i) In order to
improve and intensify coordination in the promotion of health among
the various partners concerned (Confederation, cantons and private organizations), they established, in 1989, the Swiss Foundation for the Promotion of Health, an institution responsible for implementing health promotion strategies.[379] The Foundation develops and implements priority programmes. Particular attention should be drawn to the priority programmes relating to “Physical activity, diet and relaxation”,[380] and the programme on “Adolescents and young adults”. The implementation of these programmes began in 1999 and will continue until 2004.
(ii) The cantonal public health or public education authorities organize visits to school doctors and dentists for children attending schools or nurseries. The check-ups are in principle compulsory. Parents can, however, choose to have their child examined by the family doctor or dentist and must in this case send the school doctor or dentist a certificate stating that their child has received the necessary examinations and treatment.[381] Thanks to the treatment of children and young people by school dentists and the schools’ commitment to impress upon children the importance of daily dental care, at the theoretical and practical levels, Switzerland occupies a leading position in this area.
(iii) All the cantons state that a healthy life is one of the essential objectives of compulsory schooling and that health is therefore rightly included in curricula. During school years, the various subjects in this area are always given degrees of priority, depending on the age of the pupils, whether it be in the teaching of gymnastics or sport, ethics, health education and sex education, home economics or the natural sciences.
(iv) A large number of prevention-oriented events geared to the various age groups are held in all cantons. The subjects of dependency (legal and illegal drugs), diet, sexuality, AIDS, etc. are dealt with, often in close cooperation with the competent specialized services (dependency prevention services, AIDS prevention centres, family counselling services, health services and many others).
(v) Following the “Youth health” pilot project (1992-1995), the Federal Office of Public Health (OFSP), in cooperation with the Conference of Cantonal Directors of Education (CDIP), initiated the “Schools and health” framework programme (1997-2002). This programme, which is currently underway, in March 1999 comprised 16 projects conducted in all regions of the country. The OFSP has invested a total of Sw F 4 million in the development of projects geared to needs and targeted at improving education and promotion in the area of health in school. The programme is aimed at providing support for the efforts of schools as places of learning and experience, with a view to the encouragement of the promotion of health. These projects may relate to the following subjects: school environment, psychological, social and physical well-being, prevention of dependency, sex education, prevention of violence in schools, prevention of the ill-treatment and sexual exploitation of children, environmental effects on human health, prevention of school drop-out, and interruption of training.
(vi) In 1992, WHO, the Council of Europe and the European Union initiated the European Network of Health-Promoting Schools: since 1993, Switzerland has been participating in this joint project along with 37 other countries. In March 1999, the Swiss network comprised 73 schools, (41 in German-speaking Switzerland, 30 in French-speaking Switzerland and 2 in Ticino) covering a total of 21,200 pupils, 1,120 classes and 2,430 teachers. A very large number of schools are currently taking steps to join the network.[3]
(vii) Mention should also be made of the numerous offers of documentation and inhouse training in the area of health promotion available to teachers at the canton, inter-cantonal and national levels.
(b) Paediatricians
410. In Switzerland in 1997, there were 605
doctors specializing in “child and adolescent health” and qualified
as FMH
(Swiss Medical Association) specialists. In the same year there were also
265 child psychiatrists and psychotherapists and 25 surgeons
specializing in
child surgery.[3]
(c) Vaccination of children
411. There are no statistical data on total
vaccinations in Switzerland. However, two surveys of 400 children throughout
Switzerland
in 1991 and 1998 showed that 92-95 per cent of children between
the ages of 27 and 36 months had been vaccinated at least three times
against
diphtheria, tetanus and poliomyelitis and 88-89 per cent against whooping cough.
In 1998, 77 per cent had been vaccinated
at least three times against
haemophilus influenzae (meningitis, epiglottitis). In 1987, a campaign of
vaccination against measles,
mumps and rubella was launched, and
79-82 per cent of children were vaccinated against these diseases.
Since 1998, OFSP has recommended
the general vaccination of adolescents aged
11-15 against hepatitis B. In addition, all the cantons conduct
vaccination campaigns.
(d) Children and hospitals
412. The Swiss Association for Children in
Hospital[3] is affiliated
to the international umbrella association, the European Association for Children
in Hospital. At present, four regional
groups - each covering several cantons -
have been established; in seven other cantons, contact addresses are available.
The Association’s
activities, in addition to parent guidance and support,
cover the following main areas:
Preparation of children for hospitalization: The Association supports the initiatives of teachers, who present this subject as a form of play activity in their classes. It also organizes visits to hospitals with parents and their children;
Information and counselling;
The Association ensures that hospital is a welcoming place for children:
this ranges from the appearance of the child’s room
to representing
children in discussions on quality standards for hospitals.
3. Mortality among children and young people in Switzerland
413. The infant mortality rate is very low and
has been characterized by a very sharp decrease since the beginning of the
twentieth
century. Whereas there were 6.2 deaths for every 1,000 live
births in 1986, infant mortality declined to 5.8 in 1992 and 4.7 in
1997. Most
of the deaths occur during the first week or even during the first 24 hours
of life, and are due primarily to perinatal
disorders. Congenital anomalies and
sudden infant death syndrome constitute the other chief causes of infant
mortality both during
the first month and during the first year of
life.
414. The importance of birth weight for a newborn’s chances
of survival has been known for a long time. The average birth weight
calculated for all births is 3,322 g. The average birth weight of stillborns
and infants dying during their first year of life remained
stable during
the 1980s and 1990s. The proportion of infants with a weight of less than
2,500 g is 5.4 per cent and that of infants
under 1,500 g is 0.8 per cent.
Because of the hormonal treatment followed by couples experiencing difficulties
in having a child,
the number of multiple births has increased considerably (by
29 per cent between 1986 and
1992).[385]
415. The
mortality rate for children between the ages of 1 and 14 is appreciably lower
than during the first year of life and is among
the lowest in Europe. Trauma
constitutes the most frequent cause of death, whether due to domestic accidents
(especially between
the ages of 1 and 4) or road accidents
(between 4 and 14). Congenital anomalies and malignant tumours are the other
chief causes
of infant mortality.
416. Whereas mortality has declined
sharply in children, it has fallen only slightly in young people between the
ages of 15 and 19.
In this age group, violent deaths account for approximately
three quarters of all deaths: road accidents and leisure-related accidents
constitute the first cause of mortality, followed by suicide. The suicide
rate is four times higher among boys than among girls.
417. In order to
tackle the problem of suicide, in 1992 and 1995 the FMH and the Federal Office
of Public Health published for general
practitioners a brochure entitled
“Crisis and suicide”, which was intended to help them,
inter alia, to recognize crisis situations that might lead to
suicide and to take appropriate action. In the canton of Geneva, a suicide
prevention
campaign aimed at teenagers was set up in October 1996. This is the
only programme in Switzerland set up within a university hospital.
Consultations always take place on a voluntary basis and the persons closest to
the patient are also involved. Associations such
as La main tendue
are also very active in suicide prevention in Switzerland; this association
provides a 24-hour helpline to assist
people in crisis.
418. The Swiss Accident Prevention Bureau has initiated numerous programmes
aimed at preventing various types of accident: leisure,
sports, traffic, house,
garden, etc. The means of action are very varied; they may consist of brochures
distributed to parents,
children and young people, school visits, audio-visual
material, children’s games aimed at making them attentive to possible
dangers, etc.
419. Mortality rates by main causes of death and by age for boys in 1995 (mortality rate per 100,000 persons):
|
1-4 years
|
5-9 years
|
10-14 years
|
15-19 years
|
|
All causes of death
|
5.6
|
36.5
|
16.9
|
22.2
|
81.4
|
Circulatory system
|
0.1
|
0.6
|
0.5
|
0.5
|
2.9
|
Respiratory system
|
-
|
1.1
|
-
|
0.5
|
1.5
|
Infectious diseases
|
0.1
|
2.3
|
1.9
|
0.5
|
1
|
AIDS
|
-
|
1.7
|
0.9
|
0.5
|
0.5
|
Tumours, all kinds
|
-
|
2.3
|
3.3
|
4.8
|
6.4
|
Congenital anomalies
|
1.8
|
5.1
|
1.9
|
2.4
|
3.4
|
Perinatal mortality
|
2.1
|
-
|
-
|
0.5
|
0.5
|
Accidents and trauma
|
0.1
|
16.5
|
7
|
9.6
|
49.1
|
Accidents, all kinds
|
0.1
|
14.8
|
7
|
8.2
|
31.4
|
Road accidents
|
-
|
3.4
|
3.3
|
1.9
|
15.2
|
Suicide
|
-
|
-
|
-
|
1.0
|
15.7
|
For children under the age of 1 year, mortality rate per 1,000 live
births.
420. Mortality rates by main causes of death and by age for girls in 1995 (mortality rate per 100,000 persons):
|
1-4 years
|
5-9 years
|
10-14 years
|
15-19 years
|
|
All causes of death
|
4.4
|
18.6
|
13.3
|
11.2
|
33.5
|
Circulatory system
|
0.1
|
1.2
|
0.5
|
1.0
|
1.5
|
Respiratory system
|
-
|
0.6
|
0.5
|
-
|
0.5
|
Infectious diseases
|
0.1
|
3.0
|
2.0
|
-
|
0.5
|
AIDS
|
-
|
0.6
|
1.5
|
-
|
-
|
Tumours, all kinds
|
0.1
|
2.4
|
1.0
|
4.1
|
2.6
|
Congenital anomalies
|
1.4
|
1.2
|
-
|
0.5
|
2.1
|
Perinatal mortality
|
2.0
|
-
|
-
|
-
|
-
|
Accidents and trauma
|
0.1
|
4.2
|
5.9
|
2.0
|
18.0
|
Accidents, all kinds
|
0.1
|
4.2
|
5.9
|
1.5
|
10.3
|
Road accidents
|
-
|
1.8
|
3.0
|
1.5
|
5.2
|
Suicide
|
-
|
-
|
-
|
0.0
|
7.2
|
For children under the age of 1 year, mortality rate per 1,000 live
births.
4. Maternal mortality, prenatal and post-natal care[386]
421. In Switzerland, health care for expectant and new mothers is provided
under the LAMal. The specific maternity benefits include
check-ups, by a doctor
or midwife or prescribed by a doctor, during and after pregnancy, participation
in a prenatal class given
by a midwife, birth in the home, in the hospital or in
a clinic, and also the attention of a doctor or midwife and necessary guidance
on breastfeeding. No contribution to costs may be demanded in respect of
maternity benefits.
422. The maternal mortality rate in Switzerland is
very low; it nevertheless fluctuates from one year to another insofar as it is
based on the number of live births. Maternal mortality increases with age and
is higher for women living in rural areas.
423. Maternal mortality per
100,000 live births:
1990
|
5.96
|
1991
|
1.16
|
1992
|
4.6
|
1993
|
5.97
|
1994
|
3.62
|
1995
|
8.52
|
424. The number of perinatal examinations stands at 4.5 for women between
the ages of 15 and 34 and 2.9 for women between 35 and 49.
This gives an
average of 4.1 perinatal examinations for all women between 15 and 49.
Ninety-nine per cent of births take place
in hospital or in a
clinic.
425. According to a 1994 survey, Caesarean births accounted for
16 per cent of all births in Switzerland. Lower rates of 10 to 14
per cent were
recorded for mothers under the age of 30, whereas the Caesarean rate for
women over 35 was almost 22 per cent.
426. In 1997, the average age of
the mother at the birth of the first child was 28.3 years. In 1990, it had
been 27.6 years.
5. Nutrition
(a) Breastfeeding
427. Since,
in recent years, more attention has been paid to the significance of
breastfeeding for the baby’s health and mothers
are better prepared for
breastfeeding, the number of breastfeeding mothers has increased since 1979.
After birth, 92 per cent of
women in Switzerland begin breastfeeding; after
three months three quarters are still breastfeeding (62 per cent of
these exclusively
breastfeeding). After six months, 41 per cent are still
breastfeeding, including 11 per cent only breastfeeding. It should be further
noted that since 1992 a working group of the Swiss Committee for UNICEF has
been endeavouring to promote breastfeeding and to implement
in Switzerland the
UNICEF/WHO initiative on babyfriendly hospitals.
(b) Nutrition in young people
428. Adolescence is sometimes characterized by
a whole range of psycho-social problems which are reflected in depression,
bulimia
or anorexia and are related to the problems specific to this period of
life (biological changes, growing independence visàvis
parents, plans for
the future). According to the fourth report on nutrition in Switzerland,
published in May 1998, some adolescents
reveal signs of deficient diet,
both qualitatively and quantitatively. Recent scientific data indicate that 8
per cent of girls
between the ages of 14 and 19 and 2 per cent of boys
in the same age group show unusual dietary behaviour. Anorexia as such affects
one woman out of 100 and bulimia one out of 33.
429 In the context
of the Swiss “Health in schools” network, measures are being taken
to induce young people to adopt
a healthy diet; action is also taken at the
cantonal level. On the basis of the fourth report on nutrition in Switzerland,
a nutrition
policy is currently being formulated.
6. Sexual health
430. Guidance on sexual health matters is
largely provided by the family planning centres and cantonal AIDS units as a
supplement
to the work of doctors. In addition, sex education classes are
generally organized in schools. Most young people therefore have
access to
information in this field.
(a) Sex education
431. Children receive introductory sex
education in all cantons during their compulsory schooling. This education may
be given at
all levels of public schooling, in the light of the age and
situation of the pupils concerned. Priority is, however, given to education
at
the junior secondary level.
432. In German-speaking Switzerland, this
education is chiefly provided by class teachers and specialist teachers of both
sexes.
In many cases, these teachers have had supplementary training or taken
further training courses. According to need, external specialists
(doctors,
family planning services) are sometimes called in. In French-speaking
Switzerland, it tends to be the specialized services
which provide sex education
in the context of a predetermined
programme.[387]
(b) Prevention of unwanted pregnancies
433. The prevention of pregnancies is dealt
with in the context of sex education at school and the very widespread anti-AIDS
campaigns
(see below).
434. All the cantons have counselling services for
questions relating to sexuality, pregnancy, marriage and the
family.[3] These services
are, of course, available to all young people and provide information to the
public and in schools, youth clubs,
homes associations,
etc.[3]
435. In
addition, pregnant under-age girls can at any time contact the social services
of communes, regions and districts, and indeed
tutorship authorities, in order
to obtain advice, follow-up and practical assistance. Several cantons receive
and assist under-age
mothers in homes specially designed for this purpose, as in
the cantons of Obwalden, Bern and Ticino.
436. Quite often, private
organizations offer services in this area, e.g. the marriage and family guidance
services and guidance on
sexual matters in Glarus, Pro Familia in the canton of
Vaud, SOS Futures Mères in various French-speaking cantons, the Verein
Mütterhilfe in the canton of Zürich, and many
others.
437. Statistically speaking, the number of under-age pregnant
girls no longer represents a serious social problem today, and so precise
statistics on this subject are not generally available. Zug, Schaffhausen and
Aargau have a few isolated cases. Thurgau, Uri and
Schwyz mention one or two
cases a year. Fribourg, Neuchâtel and Glarus cite 3 to 5 cases a year.
Aargau had 20 cases in 1998.
In 1996, Geneva reported 22 mothers
under the age of 18. Zürich can only give the number of mothers under 20
(200 a year on
average, 206 in 1997). In Solothurn in 1998, there were 45
mothers aged between 15 and 19, of whom 20 were Swiss and 25 of foreign
nationality.
438. Contraceptives are easily available and are,
comparatively speaking, widely used in Switzerland. The contraceptive methods
most
commonly mentioned by women under 20 are the condom (77 per cent),
followed by the pill (67 per cent). In 1996, however, there was
a disturbing
finding that the third most commonly used method among women under 20 was coitus
interruptus (19 per cent). Less frequently
mentioned were the Ogino-Knaus
method (11 per cent) and spermicides (5 per cent). Only 56 per cent of
girls aged 15 completing an
apprenticeship and having sexual relations used a
method of contraception, whereas this proportion was 100 per cent for
schoolgirls
of the same
age.[390]
439. There
are also certain groups of young people who need to be better informed, notably
groups of immigrant women. The Federal
Office of Public Health, in conjunction
with the Swiss Family Planning and Sex Education Association, has recently
initiated an information
programme for immigrant women, which began in June
1999. This comprises a “Guide on sexual and reproductive health resources
for use by immigrant women living in Switzerland”.
7. Action to combat AIDS
(a) Statistical data
440. At the end of
1997, the cumulative proportion of AIDS cases per 100,000 inhabitants
was 86.4. The increase in AIDS had nevertheless
slowed in Switzerland in
the early 1990s. Since 1995, the annual number of new AIDS cases has sharply
declined. In 1994, when the
highest rate was reached, some 700 new cases of
AIDS were diagnosed. In 1997, the figure was 390.
441. Between 1983
and 1987, 6,097 cases of AIDS were reported to the Federal Office of Public
Health; 4,690 AIDS sufferers have already
died. The number of new
infections diagnosed is in decline, this trend being particularly noticeable in
selfinjecting drug users
and in men having sexual contacts with other men.
According to estimates, the number of persons infected since the beginning of
the epidemic is between 15,000 and 25,000 (including approximately 5,000 persons
who have died).
442. Up to the end of 1997, reported cases of AIDS
affected 1.4 per cent of children under 10 (83) and
0.3 per cent of young people
aged between 10 and 19 (17). Of the
20,000 or so positive tests reported up to the end of 1997,
2.5 per cent concerned children
aged under 10 and
2 per cent young people between 10 and 19. In children and young
people suffering from AIDS or being seropositive,
both sexes were similarly
affected. The current figures do not permit any conclusions regarding an
increase or decrease over time
in cases of AIDS or seropositivity in
children.
(b) Prevention and assistance
443. Since the emergence of the HIV/AIDS
epidemic, prevention campaigns have been undertaken throughout Switzerland.
Three goals
have been defined in the HIV/AIDS prevention programme: prevention
of new infection, reduction of the negative effects of the epidemic
and
promotion of solidarity.
444. AIDS prevention takes place at three levels
of intervention and activity. The first level concerns the population as a
whole;
this is the “STOP AIDS” campaign. The second level concerns
information and prevention campaigns intended for highrisk
population groups
(e.g. homosexuals, heterosexual and bisexual men, selfinjecting drug users,
prostitutes). Lastly, the third level
targets individuals through doctors,
social workers and various organizations.
445. A legal basis for the
prevention of AIDS in schools has been created in all cantons, thereby enabling
sex education and AIDS
prevention classes to be held. At present, with a fair
level of success, many cantons have integrated these subjects into their
curricula. Since 1996, the Swiss “Health in schools” network has
offered an AIDS action programme.
446. As regards prevention geared to
young people, attention should be drawn to:
“Funtasy project”, a participatory project supplementing the STOP AIDS campaign: the objective of this project to induce young people in all regions of the country to think about the subject of HIV/AIDS during their leisure time and in the light of their needs. This subject will be treated more broadly and linked to other subjects of analysis: sexuality, dependence, violence, etc. Adults acting as focal points will motivate, monitor and support young people in this process;
The “close to risk” youth
project:[391] the aim is
to encourage, finance and monitor projects for young people “close to
risk” in the priority area of AIDS
prevention and in the area of health
promotion in general.
447. Schools are also making systematic efforts in
the area of AIDS prevention. In all cantons, pupils below and above the age of
16 receive information on AIDS. This subject is taken up in accordance with the
curriculum for the subjects of ethics, health or
sex education. In most
cases, this information is provided in the first year of secondary school, but,
depending on circumstances,
it may already have been taught in primary school.
Outside specialists participate in these classes. Some cantons also work with
private associations which conduct prevention campaigns in
schools.[392]
448. The
AIDS & KIND Foundation supports children who are infected by the AIDS virus
or one of whose parents is infected. The
assistance mainly takes the form of
financial contributions to the medical and/or psychosocial supplementary
followup of children
infected by AIDS, direct financial support for parents,
organization and cofinancing of courses of treatment or residential
rehabilitation
for affected children, spiritual care, and the offer or
cofinancing of legal support, for example in order to overcome problems relating
to education, schooling or
housing.[393]
(c) HIV and pregnancy
449. Thanks to the association of
antiretroviral treatment in seropositive pregnant women and a Caesarean at the
time of birth, HIV
transmission from mother to child can be greatly
reduced.
8. Prohibition of female genital mutilation
450. All types of female genital mutilation
(even the least invasive) are forbidden under Swiss legislation. In conformity
with Swiss
criminal law (CP, art. 122), they are classified as acts causing
wilful grievous bodily harm and are prosecuted automatically; they
carry a
penalty ranging from ordinary imprisonment for a term of between 6 months and
5 years to rigorous imprisonment for a maximum
of
10 years.
451. The elimination of negative cultural attitudes and
practices against girls constitutes one of the strategic objectives of the
Swiss
plan of action for follow-up to the Fourth World Conference on Women in Beijing
(L., The girl child, strategic objective L.2).
In the context of the
follow-up to this Conference, a study should be undertaken in Switzerland to
determine whether such mutilation
is practised in the country and if measures
need to be proposed.
452. It should also be emphasized that, at the
international level, Switzerland is actively engaged in trying to bring an end
to the
sexual mutilation of girls and women. At the multilateral level,
Switzerland supports campaigns for the eradication of such practices
and
manifests its firm commitment both in international deliberations and in
international agencies working to this end (UNICEF,
UNFPA, UNIFEM, WHO). In the
area of bilateral cooperation, and taking account of the sensitivity of the
subject, this is included
in the more global context of dialogue on national
polices and integrated in bilateral programmes on reproductive health, education
and promotion of the rights of the individual, particularly in Africa. Lastly,
Switzerland supports initiatives by local organizations
aimed at eliminating
such practices (e.g. in Mali, Tanzania and Niger) through awareness-raising
and information
campaigns.[394]
9. Health and environment
453. Following the United Nations
Conference on Environment and Development (UNCED), which was held in Rio in
1992,[3] the Federal Office
of Public Health (OFSP), in conjunction with the Federal Office for the
Environment, Forests and the Countryside,
established a working group
comprising representatives of federal, cantonal and communal bodies and NGOs. A
Health and Environment
Service was set up within the OFSP. In 1997, this
working group submitted an environment and health action plan, which is limited
to three main areas, namely, nature, mobility and housing; these areas are
regarded as being permanently related to the wellbeing
of the population. It
will also serve as a basis for implementing practical measures.
454. As
regards mobility, the aim is to ensure that the adverse effects caused by
motorized transport today are reduced by the year
2007 through a significant
decrease in emissions harmful to health and the environment, and an increase in
the share of non-motorized
transport. These measures should,
inter alia, help to reduce the prevalence of respiratory problems in
children.
10. International cooperation
455. Switzerland, through the Agency for
Development and Cooperation within the Federal Department of Foreign Affairs,
mainly pursues
a holistic health policy aimed at improving the state of health
of all population groups in need of help. Switzerland is a member
of WHO, to
which its ordinary contribution amounted to approximately US$ 4.9 million in
1998; its contribution to the International
Agency for Research on Cancer
amounted to approximately US$ 900,000. In the context of WHO’s
special programmes, Switzerland
supports the Child Health Development Programme,
which is aimed at combating the most deadly diseases in young children,
diarrhoea
and respiratory infections, in the amount of Sw F 1 million a year,
half of which is targeted more specifically at the “Integrated
Management of the Sick Child” initiative.
456. Switzerland provides
substantial aid to improve the situation of children in developing countries
through its contribution to
UNICEF. This amounted to Sw F 17 million in
1998. Switzerland has also participated in the UNICEF programme on the
improvement
of the situation of young girls in Pakistan.
457. In 1998,
Switzerland contributed Sw F 2.2 million to United Nations activities in
the area of AIDS.
458. In view of the need to act for the welfare of
children, Switzerland and various mutual assistance organizations have met in a
working group to analyse the numerous problems confronting children, mainly in
the countries of the South. At the beginning of June
1997, a joint
platform was published under the title “Children in the world: The future
begins now”.
C. Social security and childcare services and facilities (arts. 26 and 18 (3))
1. The nine branches of social security
459. The various
branches of Swiss social insurance cover the nine branches of social security
within the meaning of international
law: medical care, sickness benefits,
unemployment benefits, old-age benefits, benefits in the event of industrial
accident or occupational
disease, family allowances, disability benefits and
survivors’ benefits. Maternity benefits are currently granted in
conformity
with the LAMal.
460. It is compulsory for children to have
medical insurance, which is an individual insurance covering the whole
population and is
governed by the above-mentioned
LAMal.[396]
461. The
daily benefit insurance in the event of illness is optional at the federal
level; it is also governed by the LAMal. Every
person resident or engaging in a
gainful activity in Switzerland over the age of 15 but under the age of 65 may
conclude a daily
benefit insurance covering sickness and/or
maternity.
462. Unemployment insurance is obligatory once a person
engages in a gainful activity.
463. The accident and occupational-disease
insurance is obligatory for all employees working in Switzerland, including home
workers,
apprentices, trainees, volunteers, and persons working in vocational
institutions or sheltered workshops.
464. Old-age, disability and
survivors’ benefits are granted in Switzerland under several federal laws
which establish a “three-pillar”
social security system. The first
pillar is represented by a basic insurance covering the whole population, the
second an occupational
insurance covering only employees on an obligatory basis,
and the third an individual form of social security. Children are covered
by
the basic insurance.[397]
Only employees over the age of 17 who receive from a single employer an annual
income of over Sw F 24,120 have to pay the compulsory
occupational old-age,
survivors’ and disability insurance.
465. As regards the system of
family allowances, it is shared among 26 different cantonal regimes and a
federal family-allowance regime
in agriculture (see explanation below). The
federal regime protects agricultural workers and self-employed farmers whose
annual
income does not exceed Sw F 30,000 (this income limit is increased by Sw
F 5,000 for every dependent child), while the cantonal family-allowance
regimes
protect all non-agricultural employees. Some cantonal regimes also provide
child benefits for self-employed non-agricultural
workers or persons not
engaging in a gainful activity when their income does not in principle exceed
certain limits. Several cantons
pay agricultural workers and self-employed
farmers family allowances supplementing those provided by the federal
regime.
2. Social security benefits
466. Children are therefore included in the
social protection system and are eligible, where appropriate, for specific
benefits.
These benefits are intended directly for the child and are aimed at
compensating for the loss of family support (orphan’s benefits),
or are
paid in the light of a child’s dependency (child benefits supplementing
disability or old-age benefits and family allowances).
467. The basic
old-age and survivors’ insurance (AVS) provides for child benefits and
orphan’s benefits. Persons in receipt
of an AVS old-age benefit are
entitled to a benefit for every child who, on the death of these persons, would
be entitled to an orphan’s
benefit. Children whose father or mother has
died are entitled to an orphan’s benefit. In the event of the death of
both
parents, they are entitled to two orphan’s benefits. Foundlings are
also entitled to an orphan’s benefit. Foster children
are entitled to an
orphan’s benefit in the event of the death of
the foster parents if the latter have borne, freely and over a substantial
period, the cost of maintenance and education. Entitlement
to an orphan’s
benefit lapses on the eighteenth birthday (at age 25 if the orphan is receiving
training) or in the event of
the orphan’s death.
468. The basic
disability insurance (AI) provides that persons eligible for a disability
benefit are entitled to a benefit for each
child who, in the event of their
death, would be entitled to the AVS orphan’s benefit.
469. The
minimum child benefit and orphan’s benefit is Sw F 420 a month and the
maximum Sw F 804 a month; in the event of entitlement
to two benefits for a
child or orphan, the amount of the two benefits may not exceed Sw F 1,206 a
month (situation as at 1 January
2000).
470. In the context of the
occupational old-age, survivors’ and disability insurance, persons in
receipt of a disability benefit
are entitled to a supplementary benefit for each
child who, in the event of their death, would be entitled to an orphan’s
benefit.
The children of the deceased insured person are entitled to an
orphan’s benefit. This is also the case with foster children
when the
deceased was required to provide for them. Entitlement to the orphan’s
benefit lapses in the event of the orphan’s
death or when he or she
reaches the age of 18. It continues until a maximum age of 25, for as long as
the orphan is pursuing studies
or an apprenticeship or if the orphan suffers
from at least two thirds disability and is not yet capable of engaging in a
gainful
activity.
471. In the area of accident insurance, the children of
a deceased insured person are entitled to an orphan’s benefit. If they
have lost one of their parents, they are entitled to an orphan’s benefit
in respect of the father or the mother. If they have
lost both parents or if
the surviving parent subsequently dies or if the filiation existed only with
respect to the deceased insured
person, they are entitled to an orphan’s
benefit in respect of the father and the mother. Entitlement to the
orphan’s
benefit lapses when the orphan reaches the age of 18 or in the
event of the orphan’s death or the redemption of the benefit.
For
children pursuing studies or an apprenticeship, entitlement to benefit continues
until the end of the studies or the apprenticeship,
but never beyond the age of
25.
472. The benefit for an orphan who has lost his or her father or
mother amounts to 15 per cent of the insured income (maximum of Sw
F
1,335 a month) and the benefit for an orphan who has lost both father and mother
amounts to 25 per cent of the insured income (maximum
of
Sw F 2,225 a month) (situation as at 1 January 2000).
473. In
the event of entitlement to a benefit under several headings, anti-cumulative
provisions exist.
474. Family benefits in the agricultural sector
are paid as from the first child. All children for whose maintenance the
beneficiary
provides are eligible for benefits (children of married parents,
children of unmarried parents, adopted children, children of the
spouse, foster
children), as are the brothers and sisters of the beneficiary for whose
maintenance he or she largely provides. The
federal regime also pays household
benefits to employees living with their spouse or with their children, to
employees living in
the same home as the employer and whose spouse
or children have their own household, for whose maintenance the employee must
provide, and to employees who, with their spouse or
their children, live in the
same home as the employer. Only wage earners may claim household
benefits.
475. The child benefits amount, in the lower regions, to Sw F
160 a month for the first two children and Sw F 165 a month as from
the third
child; in mountain regions, they amount to Sw F 180 a month for the
first two children and Sw F 185 a month as from the
third child. The household
allowance amounts to Sw F 100 a month (situation as at 1 January
2000).
476. The allowances are paid until the child reaches the age of
16. They are paid up to the age of 25 if the child attends a school
or is
pursuing studies or an apprenticeship, and up to the age of 20 if the child
is unable to earn a living on account of sickness
or disability.
477. At
the cantonal level, family allowances are paid as from the first child.
Generally speaking, eligibility for allowances exists
in respect of the children
of married or unmarried parents, children of the spouse, adopted children and
foster children. In some
laws, any brothers or sisters for whose maintenance
the employee provides are assimilated to his or her own
children.
478. Benefits per child vary, according to canton, from Sw F
140 (Vaud) to Sw F 294 (Valais) a month. Fourteen cantons replace the
child
benefits by higher vocational training benefits for apprentices and students
under the age 25. Their monthly amount for the
first child ranges, according to
canton, from Sw F 165 (Thurgau) to Sw F 378 (Valais). Some cantons have birth
grants which range,
according to canton, from Sw F 600 (Solothurn) to Sw F 1,500
(Fribourg, Vaud) per birth. Five cantons have introduced foster benefits
(paid
to families who provide a foster home for a minor child with a view to adoption)
equal to the birth grants, one canton has
introduced a large-family benefit as
from the third child, and another canton provides household benefits for
non-agricultural employees
(situation as at 1 January 2000).
479. The age
limit for eligibility for child benefit is in principle 16 years. In the case
of vocational training, sickness or disability
related to incapacity to earn, it
is increased to 18, 20 or 25 years according to the canton.
480. At
present, efforts are being made at the federal level to standardize the cantonal
family
allowances.[398]
3. Childcare services and facilities (art. 18 (3))
(a) Day nurseries
481. In Switzerland,
demand for day nurseries is greater than supply. In 1990/1991, there were
21,000-24,000 places for children
in crèches and day nurseries. This
supply was clearly not sufficient in view of the 550,000 or so children of
pre-school
age, 608,000 between the ages of 7 and 15, and 650,000 working
mothers with children under 15 in Switzerland. Only one child in
27 attends a
day nursery. The existing supply does not even meet the needs of single mothers
or those of families in which both
parents have to work for financial reasons.
Relatives
are often involved in the care of children. In 1991, this practice was
followed by 42 per cent of families where the mother had a
full-time job and by
52 per cent of families where the mother worked part time. The only canton with
a day care system fully meeting
demand is Ticino, where, from the age of three,
children can attend a nursery throughout the day. The demand for infant care is
particularly heavy, as is the demand for parttime care of
children.
482. Generally speaking, there is little regulation of
conditions of enrolment. But the shortage of supply (except in Ticino)
makes
enrolment dependent on need in most cases. Working parents therefore have
priority. When an application is being considered, a
working mother who is
bringing up her children alone will have priority over a family in which the
mother does not pursue a gainful
activity and has no wish to pursue one. On the
recommendation of a paediatrician, a child may also be admitted to a day nursery
in order to pursue socialization objectives, e.g. a child suffering from a
development deficiency. Conditions of enrolment are therefore
based on
need. When parents apply for a place in a nursery, the application is
considered in the light of the following criteria:
need, existing
waiting list and available places.
483. The day nurseries and
crèches offered by firms make it a condition that the beneficiary should
be employed in the firm,
unless places are still available.
484. The
cantonal youth protection services or child welfare offices issue guidelines
concerning the average number of children per
qualified teacher. These figures
vary from one canton to another, but the average numbers are:
Children under 2 5-6 per teacher;
Children aged 2-5 8-12 per teacher;
Children over 5 12-16 per teacher.
485. Teachers are sometimes assisted by trainees.
486. In public
day nurseries, charges are calculated on the basis of the parents’ income,
on a sliding scale. The nurseries
are subsidized by the community. Nurseries
in firms are often also subsidized by employers, and parents are charged
according to
income. For singleparent families, charges are in practice
calculated on the basis of the income of the single parent, and are hence
lower
than for a family in which both parents engage in a gainful
activity.
487. In German-speaking Switzerland, the Association of Swiss
Crèches has over 280 affiliated institutions. It is
represented
in French-speaking Switzerland through local agreements. It thus
represents about two thirds of professional daynursery institutions.
According
to its information, the supply of day care is being developed in the towns and
communes which support them. The towns
and communes have defined a policy on
the subject (authorization of services, co-financing) and intervene to support
and encourage
private initiatives. Also according to its information, 13
cantons are involved in the training of crèche personnel.
(b) “Day mothers”
488. In Switzerland, the term “child
carer” is little used; the term most commonly used is “day
mother”.
No law sets a limit on the number of children a day mother can
look after, but the Federal Ordinance regulating the Placement of
Children (OPE)
of 1977[3] provides that
placement is subject to supervision in order to ensure the well-being of the
child. In practice, and in accordance
with the guidelines of the cantonal youth
protection offices or the child welfare offices responsible for supervision, the
average
should be about five children, including those of the day mother. The
number may also vary according to the competence of the day
mother and/or the
space available.
489. Day mothers are non-professional. They are
generally women who have children of their own and look after other children
during
the day in their house or apartment. There is, therefore, no initial
training in all cases for day mothers. Some cantons are beginning
to look into
this question and are setting up pilot courses.
490. There are various
networks of day mothers, generally organized by communes, and each network is
headed by a coordinator appointed
by the commune and approved by the cantonal
youth protection office or the child welfare office. The coordinator receives
training
in the various aspects of observation, interview technique, situation
analysis, legal situation and illtreatment. She visits day
mothers who have
applied for recognition and prepares a preliminary opinion for the cantonal
office which issues authorizations to
work as day mothers under the OPE. It is
also the coordinator who is responsible for followup. The training of
coordinators is
financed by the State.
491. The networks of day mothers
are generally subsidized by the communes and/or the cantons, and this fact makes
it possible to limit
the cost to parents. On average and according to the
canton concerned, the parents pay a contribution of Sw F 4 an hour,
plus a
charge for meals. Some networks fix their prices according to a sliding
scale based on parental income, while others have a fixed
hourly charge. The
cost to parents is in general fairly low.
D. Standard of living (art. 27 (1) to (3))
1. The parents’ obligation of maintenance
492. The primary
responsibility of the parents to ensure the child’s maintenance is laid
down in Swiss family law (CC, arts.
276 et seq.). The filiation link
constitutes the legal basis for the obligation of maintenance. The parents must
provide for the maintenance
of their child, including the cost of the
child’s education and training and measures to protect him or her. They
are required
to bring up their child according to their abilities and to
encourage and protect the child’s physical, intellectual and moral
development.[400] The
parents must provide not only necessary maintenance, but maintenance appropriate
to their situation. Their obligation of absolute
maintenance continues in
principle from birth until the child’s majority. If the child does not
yet have appropriate training
on attaining the age of majority, the parents
must, to the extent that circumstances may require it of them, continue to
provide
for the child’s maintenance until he or she has acquired such
training, provided that it is completed within the normal
period.[401] The parents
generally provide for the child’s maintenance in kind through care and
upbringing within the family nucleus.
When the persons exercising parental
authority are not living together or the parents are divorced, only the parent
having custody
of the child assumes his or her duty of maintenance in kind,
whereas the other parent fulfils his obligation through a financial
contribution.
2. Welfare
493. The principal means of combating poverty
in Switzerland, alongside the social security system, is welfare or public
assistance.
Public assistance operates in a supplementary and subsidiary
fashion, and extends only to persons who are not or are no longer covered
by
social security or whose income is insufficient. This assistance comprises
welfare and subsidies, in kind and in cash, and also
non-material aid in the
form of advice, assistance and services. Welfare is aimed not only at ensuring
a minimum level of subsistence
for persons in need, but also at encouraging
their financial and personal independence and ensuring their social
integration.
494. Public assistance is a cantonal responsibility. All
cantons have enacted legislation on welfare or assistance. This legislation
is
often very detailed, and in some cases accompanied by supplementary
enactments (decrees, regulations). Execution is nevertheless
within the
virtually exclusive competence of the communes, which may issue prescriptive
enactments on the subject. Although this
results in a certain diversity in
terms of benefits, the fact remains that a minimum subsistence essential for
leading in the long
term in Switzerland a life consistent with human dignity
will be guaranteed (FC, art. 12; see commentary relating to Convention,
article
6).
495. The Swiss Conference of Social Welfare Institutions (CSIAS)
publishes recommendations for the social services authorities in
the various
cantons and communes. Despite their non-binding character, these guidelines are
widely implemented. They fix, inter alia, standard amounts which
correspond to the “minimum subsistence essential for leading in the long
term in Switzerland a life
consistent with human dignity”. The standard
amount recommended is Sw F 1,010 a month for one person. A supplement
of about
Sw F 100, adjustable in accordance with local living
conditions, is added (amounts for 1998 adapted to the size of the household
on a
declining scale). These standard amounts for everyday expenses are accompanied
by housing costs and expenditure on medical
care. The coverage provided for by
the CSIAS recommendations go beyond the constitutional guarantee of minimum
conditions of
subsistence.[402]
3. Policies for the benefit of families
496. The family policy measures improve the
situation of families, and hence that of children. In Switzerland, family
policy is based
in particular on article 116 of the Federal Constitution and on
certain cantonal constitutional provisions which provide for additional
measures. Every family policy measure must respect
equality of rights
between men and women.
497. The principal practical measures are as
follows:
(a) Compensation for family responsibilities is provided
primarily through family
allowances;[403]
(b) Tax
relief constitutes another important element of compensation. Both the
Confederation and the cantons have designed their
fiscal systems in a manner
favourable to the family, with various types of corrective measure (deductions,
dual scale, family quotient).
The Federal Department of Finance, in particular
an expert commission within the Department, has studied options for improving
the
current system;
(c) Eleven cantons also provide parents with
benefits in the event of need, in accordance with various models and on
different conditions;
(d) Federal assistance for housing construction
represents another form of support for families (FC, art. 108
(4));
(e) Family responsibilities, and responsibilities in the areas of
education and assistance are taken into account in determining
social insurance
benefits (AVS, AI, sickness insurance, unemployment
insurance);
(f) Lastly, it remains to mention the following family
policy measures: scholarships for studies and apprenticeships, meeting the
needs of the family and children in the media and leisure activities, marital or
family consultations, training of parents, protection
of children, prevention of
violence and sexual exploitation, family assistance services, lower fares for
families on public transport.
498. Among the institutions responsible for
the implementation of family policy, the following should be noted:
The Central Organization for Family Questions, within the OFAS, which implements the legal provisions on family allowances in agriculture, is the coordinating service for family questions within the federal administration. It has other responsibilities in relation to cantonal legislation on family allowances and Swiss and foreign family policy;
The extra-parliamentary Commission for Coordination on Family Questions, which is a consultative body within the Federal Department of Home Affairs and is active in information and research;
The parliamentary Group on Family Policy, whose purpose is to safeguard the interests of the family in the Federal Chambers;
The family councils or family offices established by certain cantons (e.g. Fribourg, Vaud, Valais and Jura);
The communes, which play an essential role in family-oriented social welfare (crèches, day nurseries, family assistance services, etc.).
VII. EDUCATION AND LEISURE, RECREATION AND CULTURAL ACTIVITIES
A. Education, including vocational training and guidance (art. 28)
1. The right to education
499. The
list of social goals includes in particular a provision that the Confederation
and the cantons “shall strive to ensure
that ... children and young people
and people of working age shall benefit from initial and continuing
education according to their
abilities” (FC, art. 41). While the
Constitution does not explicitly guarantee the right to education, which was
rejected by referendum in 1973, article 19 guarantees the right to
free,
sufficient primary instruction. Appeals may be brought before the Federal Court
on the implementation of this basic right.
In addition, article 62 of the
Constitution requires the cantons to ensure adequate primary education, open to
all children and free of charge in public schools.
500. The cantons are
essentially autonomous in the area of education, particularly as regards
compulsory education. They decide how
education will be organized and regulate
it through legislation that varies considerably from canton to canton. They are
obliged
under the Constitution to provide primary education that must be
adequate, compulsory, free of
charge[404] and
secular.[405] The
principle of non-denominationalism applies to all public schools, at all
levels.[406] Most cantons
give the communes responsibility for establishing and maintaining some kinds of
school, in particular nursery schools
and compulsory schools. Where the
Confederation has legislative jurisdiction, in many cases it entrusts cantons
with implementation
of the law.
501. The Confederation has jurisdiction
in two principal areas. It ensures the provision of adequate primary education,
which is
compulsory and free of charge, and administered by the cantonal
authorities. It also regulates vocational training, runs the federal
technical
universities,[407]
regulates apprenticeship
contracts,[408] subsidizes
cantonal universities and
scholarships[409] and
promotes
sport.[410]
502. Switzerland
has no federal institution analogous to a “ministry of education”.
At the Confederation level, there
is a division of responsibilities between the
Federal Office for Education and Science (OFES), which is part of the Federal
Department
of Home Affairs (DFI) and deals with research, policy on universities
and subsidies to the cantons for scholarships and international
cooperation, and
the Federal Office for Vocational Training and Technology, which is part of the
Federal Department of Economic Affairs
(DFE) and responsible for vocational
training. The same division of responsibilities can also be found in some
cantons, but in most
cantons vocational training is a branch of the Department
of Education.
503. Education is coordinated among cantons, and between
cantons and the Confederation, through a number of institutions, including
the
Conference of Cantonal Directors of Education (CDIP), established in
1897.
504. Beyond the institutional framework, inter-cantonal
coordination took an important step forward in 1970, when an Inter-Cantonal
Concordat[411] was adopted
“with the aim of developing education and harmonizing legislation in the
various cantons”. To date, 25 out
of the 26 cantons have signed the
Concordat.
[412]
505. The signatory
cantons committed themselves to harmonizing their education legislation with the
following objectives, which have
now been achieved:
Age of entry to compulsory education: six years of age by 30 June; entry may
be brought forward or put back by four months;
Compulsory education: a
minimum of nine years, with a minimum 38-week school year;
Period of education up to maturité (the Swiss senior high
school diploma): a minimum of 12 years and a maximum of 13; school year to
begin between mid-August and midOctober.
2. Education in Switzerland
(a) Pre-school education
506. The organization
and funding of pre-school (nursery) education is the responsibility of cantons
and/or communes. Generally speaking,
nursery school is optional and free of
charge and caters for children aged between three and seven, depending on the
canton. In
German-speaking Switzerland, nursery education is mainly play-based;
in French-speaking cantons and Ticino, preparation for school
is also
important.
507. The social role of nursery education is becoming more
widely recognized, especially its role in early integration of children
of
foreign origin.
508. Two thirds of children attend the first year of
nursery school and nearly all in the relevant year group attend the second year.
Only 2 per cent of children now enter primary school without having been
through nursery school; the average duration of nursery
education is 1.8
years.
(b) Compulsory primary education
509. Primary education is compulsory and all
children regardless of nationality, country of origin or sex must be given
adequate primary
education in a school in their commune of
residence.
510. One consequence of the principle of free primary
education is that communes are obliged to establish schools for resident
children,
which in turn means that schools must not be too far away. A child who
lives a particularly long way from the school in his or her
own commune has the
right to attend, free of charge, a school in a neighbouring commune if the
journey is noticeably shorter.
511. The organization of primary education
varies from canton to canton. In most cases, primary education lasts six years,
and starts
between the ages of five and seven; in four cantons, it lasts five
years and in two cantons (Vaud and Basel-Stadt), it lasts only
four
years.
512. The structure of primary education is relatively
uniform in all cantons, and is based on the principle of a single class teacher,
although in exceptional cases there are two. Many cantons also have specialist
teachers for certain subjects such as arts and crafts,
physical education and
the second language. Each class normally comprises a single year group,
although mixed-age classes can be
found in sparsely populated areas.
Experiments are also being carried out in a number of cantons to abolish age
groups in order
to allow each child to develop at his or her own pace. The
average number of children per primary class was 20.1 in
1997/98.
513. There are between 36.5 and 40 weeks in the school year,
depending on the canton. First and second grades have 20 lessons per
week and
fifth and sixth grades between 34 and 36. The curriculum normally includes,
first and foremost, the utilitarian areas of
culture (reading, writing and
mathematics), environmental studies (natural sciences, history and geography),
artistic subjects (singing,
music and art) and physical education. Teaching of
a second national language now starts in fourth or fifth grade, German for
French-speaking
Switzerland and French, with certain exceptions, for German- and
Italian-speaking Switzerland.
(c) Compulsory junior secondary education
514. The aim of the junior secondary level is
to provide a general basic education and prepare students for apprenticeship or
further
studies. Its functions also include selection and
orientation.
515. The duration of junior secondary education depends on
that of primary education: it is currently three years in most cantons,
but in
some it is four or five years. Junior secondary is divided into three or four
bands in nearly all cantons (except Ticino,
Geneva, Basel-Stadt and some parts
of Valais), and is therefore quite selective. First, there are elementary
streams and advanced
streams. The elementary streams provide basic vocational
training for around one third of the students in a given year group, with
a
higher percentage of boys than girls. The advanced streams comprise two thirds
of the children in a given year group and are in
turn subdivided into two
sections: the upper streams, leading to maturité school, and the
middle, or general, streams, which prepare students for vocational training.
The cantons of Ticino, Geneva, Basel
and parts of Valais have opted for a
single mixed-ability school structure (cycle d’orientation).
There is a growing trend towards this comprehensive-style organization, which
helps students to avoid being faced with premature
choices.
516. There is
a well-developed system of educational counselling. In principle, every school
has a guidance counsellor who gives
individual consultations. Youngsters also
have an opportunity to experience various kinds of work at first hand through
job placements
lasting around a week.
517. More and more students are
taking a tenth “transitional” year between the end of compulsory
education and the senior
secondary level. This optional extra year enables
those who are still undecided to supplement and consolidate their learning to
date, in preparation for their choice of further training or
education.
518. As part of a study of school students’ schedules
and workloads in Switzerland and Norway, more than 3,500 children and
young
people from fourth to ninth grades in German- and
French-speaking Switzerland and in Norway were interviewed for a national
research programme looking into the effectiveness of Swiss
education
systems.[413] The
questions related, among other things, to children’s and young
people’s timetables, their social circles, school
itself, their physical
and mental well-being and their behaviour. On the basis of this study, it was
possible to draw the following
conclusions about the education system:
The majority of children and young people go willingly to school, which is where they spend most of their time. Boys are more likely to dislike school, a tendency that increases with age. Homework is a common source of irritation, as it makes deep inroads into leisure time. In German-speaking Switzerland, 60 per cent of students feel that school leaves them little time for anything else; in French-speaking Switzerland, the figure is 48 per cent;
The majority of teachers find teaching and the teaching environment conflict-free and congenial. This view is less widespread among students;
Adults generally believe that children and young people are fully occupied during their leisure time.
(d) Senior secondary education
519. Nearly 90 per cent of children in a given
year group go on to further education on completion of compulsory
schooling.
520. There are two types of senior secondary education:
further education and vocational training. Vocational training occupies
a
remarkably important place in the Swiss education system: 7 out of 10 young
people go on to vocational training on completion
of compulsory schooling. Only
a minority of students move on to further education in a maturité
school leading to university. There has been a shift in this tendency since the
1980s, however, with a steady decline in the percentage
of students going into
vocational training and an increase in those going into further
education.
(i) Further education
521. Further education at
the senior secondary level is provided mainly by maturité schools,
which are advanced-level establishments. The duration of maturité
school varies from canton to canton but must be a minimum of four years,
beginning in principle the year following completion of
compulsory schooling.
The average number of hours’ teaching is between 3,000 and 4,000, at
around 36 hours per week and with
a minimum 38-week school year. At this level,
any foreign child arriving in Switzerland may take the federal
maturité examination, which will enable the child to continue his
or her academic career.
522. The maturité comprises seven
basic subjects, together with one major and one subsidiary option and a
maturité project. The combination of major option plus basic
subjects and subsidiary option constitutes the maturité
profile.
523. The number of maturité students as a
percentage of the overall population varies greatly from canton to canton. Of
the relevant year group at the national
level in 1996/97, 17.7 per cent of
students obtained the maturité.
524. Diploma-level schools
(EDD) offer broader sectors of the population the opportunity to continue their
general education at the
post-compulsory level and learn more about working
life; they also meet the needs of those who cannot or do not wish to go on to
a
maturité school but nevertheless need to acquire a level of
general education and all-round culture that will give them access to higher,
non-university vocational training. The EDD prepare students for entry to areas
such as teaching, the paramedical professions, social
work, administration and
artistic fields, in particular.
525. Teacher training in a minority of
cantons is still provided by écoles normales, or teacher training
colleges, which train teachers for nursery schools and compulsory education.
This system is now being thoroughly
overhauled and all teachers, with some
exceptions, can now be said to have been trained in a college of education or a
university.
(ii) Vocational training
526. Vocational
training is one area of education that falls primarily under the jurisdiction of
the federal
authorities.[414] The
current legal framework is provided by the Federal Act concerning Vocational
Training (LFPr), [415] an
act of great significance as 85 per cent of young people in vocational training
complete an apprenticeship in accordance with
this legislation. Apprenticeships
are thus central to the vocational training system. It is thus an area of great
importance and
new legislation on vocational training is currently being
prepared. Vocational training may take various forms:
Apprenticeship in a company. This is the most common form, and includes an introductory course, practical training in the company and theoretical training in a vocational training school;
A full-time course in a vocational training school (technical or
business college);
Maturité professionnelle, established in 1993. Courses supplement in-company training and vocational training school courses.
527. The availability of apprenticeships fluctuates with the economic
situation. Companies are under no obligation to train apprentices.
In response
to the economic recession and structural adjustments of the early 1990s, the
State and the business sector set up a
programme to encourage companies to offer
apprenticeships. This programme has had positive results.
528. In its
first decree on apprenticeships, dated April 1997, Parliament allocated
Sw F 60 million to promotion of apprenticeships,
thereby giving a
real boost to vocational training. The cantons had Sw F 40 million available up
to mid-2000 for projects aimed
at increasing the number of apprenticeships
available. Sw F 20 million were allocated to supraregional or national
projects. The
Federal Office for Vocational Training and Technology has
launched a national apprenticeship campaign, whose first phase aims at
maintaining and expanding the number of apprenticeships. The second phase will
emphasize and promote the more qualitative aspects
of apprenticeships. This
awareness-raising campaign is one of more than 100 projects now under way under
the first decree on apprenticeships.
529. Since new legislation on
vocational training will not come into force before 2003
at the earliest, and the 1997 decree on apprenticeships
is due to
lapse in August 2000, Parliament adopted a second decree on apprenticeships
in June 1999. This decree provides for Sw
F 100 million to be earmarked for the
establishment of training places in growth sectors, and for the advancement of
girls and of
young people with educational problems. This sum should make it
possible to pursue three main aims between 2000 and 2005. First,
support should
be given to very small businesses in the high-technology sector (biotechnology,
information technology, etc.) to enable
them to draw up joint training
agreements. In new sectors such as information technology, telephony,
multimedia, marketing, design,
leisure, keep-fit and health, travel, and
financial and business services, new job definitions should be developed and new
training
places established. Weaker students should not need to wait until
their tenth year of schooling but should be prepared for vocational
training
during a well-planned introductory year. Young women should be encouraged to
enter non-gender specific, forward-looking
professions by means of
awareness-raising campaigns, additional apprenticeships and new forms of
training.
530. According to the guidelines for implementation of the
first decree on apprenticeships, the highest priority should be given to
publicizing apprenticeships and to promotional campaigns on every aspect of
apprenticeships for women. These aims were adopted by
the Swiss Conference of
Delegates on Equality between Women and Men and by the Federal Bureau for
Equality between Women and Men,
which in autumn 1997 launched a national project
to increase the number of apprenticeships for young women. Early June 1998 saw
the start of “16+”, an apprenticeship project of the Conference of
Delegates on Equality between Women and Men, which
includes, in particular,
measures to promote a non-gender dependent choice of employment and to remove
the obstacles in the way of
a free choice of employment. In addition, the
Conference of Delegates on Equality of Opportunity has proposed monitoring
procedures
aimed at ensuring equal opportunities in the implementation of the
decree on apprenticeships. It has also prepared equal opportunities
standards
that should be taken into account in planning, implementing and evaluating all
projects in this
field.[416]
(e) Higher education
531. Switzerland has 12 universities. Five of
its cantonal universities (Basel, Zürich, Bern, St. Gallen and
Lucerne), and the
federal polytechnic university in Zürich, are in the
Germanspeaking part of the country. The other four cantonal universities
(Lausanne, Geneva, Neuchâtel and Fribourg - this last a bilingual
university with courses in both French and German) and the
other federal
polytechnic university in Lausanne, are in the Frenchspeaking part. In 1996,
the Italian-speaking canton of Ticino
established its own university
(Università della Svizzera italiana).
532. Switzerland also has
seven specialized higher colleges (HES), which means it now has a highly
developed system of higher education
colleges in the fields of technology,
economics and administration.
533. For entry to a Swiss university, a
student must be 18 and have a command of the language used for teaching and
study, and must
also have a certificate of maturité or a
recognized equivalent qualification. The cantonal universities may recognize
certain other qualifications at their discretion.
There is no central
university admissions office and, applications are made directly to the
university of the student’s choice.
534. University enrolment fees
range from Sw F 375 to Sw F 4,000 per year. Compared with maintenance expenses,
tuition fees are thus
negligible.
535. Under article 66 of the
Constitution, the grant of scholarships falls under cantonal jurisdiction. Each
canton is free to determine its own conditions for the award
of scholarships,
set the amounts and establish procedures. However, the Confederation makes a
vital contribution to the democratization
of access to higher education by
subsidizing cantons’ scholarship expenses. It pays between 20 and 60 per
cent of the expenses
cantons incur in funding scholarships. The Confederation
sets the upper and lower limits for scholarships eligible for subsidies
and
ensures that the conditions for awarding scholarships do not restrict the free
choice of academic career.
536. An effective and well-developed
scholarship system is of great importance in keeping access to these
institutions open to all
social classes, and enormous progress has certainly
been made in terms of access to educational establishments. According to
surveys
on students’ social background, a child whose parents did not go
to university is now around four times less likely to go to
university than a
child whose parents did go. In the 1960s, inequality of opportunity in this
regard was nearly 12 times as great.
Despite these advances, efforts are still
needed to improve equality of opportunity. Scholarships are a very important
contribution
to that work. Other measures are also important, such as
individual support for students from less favoured social strata at all
levels
of the educational system.
537. In special cases, scholarships are
offered by private organizations, which set conditions in accordance with their
own rules
and regulations. The Confederation also offers a certain number of
scholarships to foreign students every year.
538. As a result of
oversubscription in medical studies, a compulsory aptitude test was introduced
in 1998 for those who had enrolled
for courses in human medicine in Basel, Bern,
Fribourg and Zürich. Nearly 82 per cent of those who took the test
obtained a
place in the first round. There was no significant difference
between men’s and women’s test results or their admission
rates,
which means that a major condition of gender equality in entry to higher
education has been fulfilled. There is no indication
that students from less
favoured social strata are at a disadvantage in these tests.
(f) Private schools
539. Parents may choose to educate their
children in a private school. In this case, admission will depend on the school
itself.
Some private schools are subsidized by cantons or the Confederation.
540. The right to establish private schools derives from the economic
freedom guaranteed under article 27 of the Constitution. Private schools must
provide adequate education within the meaning of article 62 of the Constitution.
They are under the jurisdiction of the cantons, which issue the relevant
licences and also conduct inspections.
541. Primary education is under
the direction or jurisdiction of the public authorities (FC, art. 62),
and this principle is extended
by the cantons to compulsory education as a
whole. Private schools do exist, however, but are rarely
subsidized.
542. The majority of senior secondary schools are cantonal
schools, although some are commune schools. Private schools at this level,
which in the past were often religious schools, are in many cases recognized and
even subsidized. The majority of the vocational
training schools are run by
cantons, while continuing education, both general and vocational, is largely in
the hands of the private
sector (professional associations or commercial
institutions), but is subsidized by both the Confederation and the
cantons.
(g) Vocational guidance
543. In accordance with the Federal Act
concerning Vocational Training (LFPr),
[417] vocational guidance,
in the form of general information and individual consultation, is available to
young people and adults as an
aid to choosing an occupation or course of study,
or learning more about the career they have chosen. Parents, the school and
employers
all participate in providing this guidance to young people, which is
optional and free of charge.
544. The Confederation promotes vocational
guidance and, in conjunction with the cantons and relevant professional
associations, is
responsible for the training and development of vocational
guidance counsellors. Indeed, such counsellors may not practise unless
they
have received training recognized by the Confederation.
545. The cantons
are responsible for organizing appropriate vocational guidance and must maintain
a cantonal vocational guidance centre.
546. Vocational guidance
statistics for the 1996/97 school year show that 117,395 young people had one or
more interviews with a vocational
guidance counsellor. Of those,
6.34 per cent were aged under 14; 38.3 per cent were aged between 15
and 16; 20.4 per cent between
17 and 19; 14.4 per cent between 20
and 24; and 20.6 per cent 25 and over. Apprenticeships were suggested in 33.1
per cent of cases;
senior secondary-level education or training in 16.9 per cent
of cases; and higher education or training, a temporary measure, a
career change or other solutions were suggested in 11.8 per cent of
cases.
(h) School and language
547. Switzerland is a multilingual State with
four national languages. The official languages are German, French, Italian and
Romansh.[418]
548. Education
is subject to the principle of linguistic territoriality, i.e., the language of
education is the language of the commune
where the school is located. The
underlying aim is to safeguard cantons’ linguistic homogeneity through the
linguistic assimilation
of migrants. As a result, parents who speak a different
national language have no right to teaching in a language other than that
of the
commune. Moreover, the commune of residence has no obligation to pay any
allowance in respect of a child who attends school
in a neighbouring commune
where teaching is in his or her mother
tongue.[419] Romansh is
the language of education in a certain number of primary schools, but at the
secondary level it is generally taught as
a foreign language.
549. A
second national language (German in French-speaking Switzerland and normally
French in German-speaking Switzerland and Ticino)
is taught from the fourth or
fifth year of compulsory school. Students can choose either a second national
language or English as
their second foreign language. Experiments in bilingual
teaching have recently been conducted in Fribourg, Sierre, Bienne and Thoune,
where bilingual French/German maturité classes have been formed.
There are also private schools which provide bilingual teaching.
(i) Discipline in schools
550. Although punishments such as extra work
are permitted in schools as a disciplinary measure, corporal punishment is
strictly forbidden
in Switzerland: it is recognized by the Federal Court as a
violation of the child’s personal freedom and is an offence under
the
Criminal Code.
3. Public expenditure on education
551. Education funding in Switzerland reflects
the division of institutional jurisdictions. Each level of authority assumes
its own
share of the financial burden, in accordance with its responsibilities.
Since compulsory education is free, the financing comes
chiefly from the
communes (59.9 per cent) and the cantons. Expenditure on senior secondary-level
education comes principally from
the cantons, while higher education funding is
shared equally by the cantons and the Confederation.
Level of education
|
Millions of francs (1996)
|
||||
Total
|
|||||
Amount
|
%
|
Confederation
|
Canton
|
Commune
|
|
Pre-school
|
761.0
|
3.7
|
0.0
|
244.3
|
516.7
|
Compulsory education
|
9 742.9
|
47.0
|
22.7
|
3 849.0
|
5 870.3
|
Special education
|
765.7
|
3.7
|
0.0
|
386.5
|
379.1
|
Vocational training
|
2 938.6
|
14.2
|
514.3
|
1 984.3
|
440.0
|
Teacher training
|
4 018.6
|
1.9
|
0.0
|
389.8
|
11.9
|
Further education college
|
1 623.5
|
7.8
|
11.5
|
1 542.2
|
69.9
|
Higher vocational training
|
584.1
|
2.8
|
129.2
|
440.56
|
14.4
|
Higher colleges
|
3 528.2
|
17.0
|
1 782.9
|
1 730.7
|
14.6
|
Other
|
375.2
|
1.8
|
24.3
|
305.0
|
46.8
|
TOTAL
|
20 720.9
|
100.0
|
2 484.8
|
10 873.2
|
7 362.9
|
Salaries
|
14 056.9
|
67.8
|
|
|
|
Teachers’ salaries
|
9 621.0
|
46.4
|
|
|
|
4. Gender equality
552. Women’s access to education is vital
to the achievement of other aspects of equality. Article 8 (3) of the
Constitution explicitly states that legislation shall ensure equality in law and
in fact in family, education and work. There has been a considerable
improvement in girls’ and women’s access to education, although the
gap has not closed entirely.
553. In compulsory education, nearly all
boys and girls continue their studies up to the age of 15. The principle
of equality has
resulted in a standardization of curricula. Girls do better
overall in the selection process: there are fewer girls than boys in
special
education classes and fewer of them repeat grades. Yet on completion of
compulsory education, fewer girls than boys continue
their studies: in 1987, 18
per cent of girls aged 20 had no post-compulsory education, as against
8 per cent of boys. Women’s
access to post-compulsory education has
improved, however, and they have made up the ground lost in earlier generations:
more than
half of all women aged over 65 have no post-compulsory
education.
554. On 28 October 1993, the Conference of Cantonal Directors
of Education (CDIP) published recommendations on equality between women
and men
in education. Reference is made to these recommendations in new curricula such
as the curriculum for compulsory education
(primary and junior secondary) of the
canton of Bern. They include, among other things, a recommendation that
teaching programmes
should include discussion of the traditional roles of girls
and boys. Both sexes should be shielded from conventional roles in their
development. Awareness of gender roles, prejudices and stereotypes is a
prerequisite for the advancement of girls and boys in general.
555. The
gender gap becomes noticeable when girls and boys make their choices for senior
secondary education. Only 66 per cent of
girls in a given year group opt for
vocational training, as compared with 78 per cent of boys. However, the
percentage of women
in vocational training has increased steadily. Girls tend
to prefer short vocational courses (from one to three years), chiefly
in
business, administration and medical care. Women and men attend
maturité schools in the same proportions and in 1997, 51 per cent
of maturité certificates were obtained by
women.
556. Access to higher education, too, has improved considerably.
Women now account for 43 per cent of university students, 40.9 per
cent of first degree graduates and 30 per cent of doctorates. Women are
represented in the various disciplines as follows: humanities,
61.1 per cent; economic sciences, 24.4 per cent; law, 44.5 per cent;
natural sciences, 29.6 per cent; technical sciences, 20.1 per
cent.
On 6 January 2000, the Federal Office for Vocational Training and Technology
(OFFT) transmitted a plan of action on equal
opportunity for women and men in
higher education colleges to the Directorate of Higher Education
Colleges.
5. Children of foreign origin[420]
557. There are a large number of migrant workers in Switzerland: in
1993, for example, 18.5 per cent of the population was of foreign
origin. Southern European countries (Italy, Spain, Portugal and the former
Yugoslavia) are still the most heavily represented, although
the range of
countries of origin is continually widening. The impact of this situation on
the composition of school classes is not
negligible. In 1997/1998, 22 per cent
of pupils were of foreign origin. This figure covers a wide variety of
situations, however.
It includes secondgeneration children born in Switzerland,
children of recent migrants, and students who come to Switzerland specifically
for their education. The situation in the cantons also varies widely: in
Geneva, for example, 40 per cent of students are of foreign
origin, yet in Uri
the proportion is 5 per cent.
558. Generally speaking, there is
greater cultural diversity in French-speaking Switzerland than in
German-speaking Switzerland.
The percentage of classes with a large number of
students from another culture ranges from 77 per cent in Geneva to 2 per cent in
Obwalden. In the country as a whole, one third of classes in compulsory schools
have a large number of students from other linguistic
or national cultures and
one fifth of classes contain only Swiss children who are being educated in their
mother tongue.
559. On completion of primary education, and in the
transition to junior secondary school, a markedly greater number of
children of
foreign origin move into the elementary streams. In 1997/1998,
for example, whereas the percentage of young foreigners in junior
secondary
schools overall was 22 per cent, it was 33 per cent in the elementary streams,
12 per cent in the advanced streams and
26 per cent in non-selective schools
(attended by a sizeable proportion of students, particularly in Ticino and the
French-speaking
cantons). By contrast, children of foreign origin are
over-represented in special education classes: in 1997/1998 they accounted
for 45 per cent of pupils in such classes.
560. As regards
post-compulsory education, youngsters of foreign origin account
for 14 per cent of those entering maturité schools
and 18 per cent of those going into vocational training. They are
over-represented in basic vocational training courses,
however, where they
account for 46 per cent of students. A number of organizations offer young
foreigners training and employment
opportunities on completion of their
compulsory education. In Geneva, a reception and orientation service (SCAI) is
available to
all young foreigners who are under 20 but have passed the age of
compulsory education. Vocational training in preparation for possible
return to
and resettlement in the country of origin can be considered as international
technical cooperation, and promotes respect
for individual rights abroad. An
example of this is the Tagesstruktur für Asylsuchende (TAST) organization
in the canton of
Bern, which is supported by various communes and other
organizations working in the field of asylum. Asylum-seekers and persons
admitted on a temporary basis who are aged between 15 and 25 and have no access
to regular training structures are provided with
a daily routine which varies by
age group and focuses on continuing education and employment. In Zürich,
“workfare”
has organized a range of 23 different training and
occupation programmes for comparable target groups; in 1997, this scheme
provided
a daily routine for an average of 265 people per
month.
561. There was a high proportion of students of foreign origin
(19.3 per cent) in tertiary-level university education in 1998/1999,
but fewer
in non-university higher education (9 per cent). Many of those students came to
Switzerland especially in order to study,
however: two thirds of foreign
students are “mobile” and only one third grew up in Switzerland.
The Confederation awards
some 300 scholarships to foreign students every year.
Half of these go to students from
industrialized countries, who may receive a one-year scholarship where
reciprocal arrangements exist, and half to students from developing
countries,
who may obtain a grant for the duration of their studies.
562. The two
key concepts underlying the education of migrants’ children are
integration and respect for the culture of
origin.[421] The majority
of cantons have therefore adopted a variety of measures to help children of
foreign origin. In some cases, reception
classes have been established for
young people arriving in Switzerland. These classes act as a transition stage
that helps them
to integrate into normal school life. Other cantons place young
foreigners in smaller classes in order to assist integration. There
are also
remedial classes, support classes for individuals or small groups, as well as
courses in the local language; these are provided
outside school hours. In
addition, private organizations offer courses in the language and culture of
origin, with the support of
the authorities of the country of origin. These
classes enable the child to build its own cultural identity by integrating into
the host society without renouncing the culture of origin.
563. The
Institute of Special Education of the University of Fribourg and the National
Fund have made a joint study of integrated
and separate classes in schools and,
during the past two years, integrated and separate classes for foreign
children with educational
difficulties. Provisional results to date show that
foreign children have an education deficit, which is indicated in the Fribourg
study by a higher than average proportion of foreign children in special
classes. This already has clear education policy implications:
efforts must be
made to integrate as many foreign children with educational difficulties as
possible into normal classes, while
making provision for special education for
individuals.
564. In March 1999, the Council of State of the canton of
Zürich allocated Sw F 2.5 million to a project on
qualitative aspects
of multicultural schools. Support will be given to projects
in 15 schools over the next three years. The aim of the project is
to
develop teaching methods appropriate to students’ varying situations that
will motivate not only those students with problems
but also the more gifted.
One method is to have a second teacher work from time to time with weaker and
very strong students. It
is also clear that increased involvement of parents in
schooling has a positive impact on educational success, and specialists from
the
various linguistic communities should therefore participate as mediators. After
a trial period of three years, the Department
of Education will evaluate
the projects in the 15 schools concerned and on that basis will prepare a
“quality assurance”
model aiming at integrated rather than separate
classes, which will be made available to all schools concerned in the canton of
Zürich.
565. In June 1999, the Swiss Government issued an opinion on
the legality of separate classes for foreign school
students,[4] declaring
separate classes unconstitutional. At the very most, introductory and
supplementary classes could be provided to children
in need of remedial language
teaching. Separate classes would violate the constitutional principle of
equality under the law and
non-discrimination.[4]
They would also contravene certain provisions of the Convention on the Rights of
the Child, the International Covenant on Civil
and Political Rights and the
Convention on the Elimination of All Forms of Racial Discrimination. The
Federal Commission against
Racism issued a similar opinion in a report dated
August 1999.[4] Provided
there is no violation of the principle of equal opportunity and separation does
not lead to
permanent segregation, it is perfectly admissible under constitutional law
for children to receive introductory or supplementary courses
if they require
remedial language teaching because of their background, and indeed such an
approach may be very much in the interests
of integration.
566. The
cantons make every effort to ensure that these children attend school.
Depending on their number and situation, they are
- temporarily - placed in
integration or transition classes where they receive intensive language
training.[4] Other cantons
opt for rapid integration into normal classes with supplementary language
training. The move to the world of work
is especially important for this group
of students, and many cantons take advantage of the transition schemes offered
by vocational
training schools, such as an introductory year, a placement year,
pre-apprenticeship or basic training.
567. At this point mention should
be made of the issue of compulsory schooling for “clandestine
children”, a problem arising
out of the status of seasonal worker, which
does not permit family reunification. Certain foreign families are in
Switzerland illegally
and some of their children do not attend school. In a
circular to cantonal immigration authorities, the Federal Council has issued
instructions that children residing illegally in Switzerland should be treated
leniently, since their parents may soon be given the
right to family
reunification when their seasonal work permit is replaced by a yearly residence
permit. The cantonal authorities
also have the option, at least in these cases,
of granting the children a residence permit for humanitarian reasons. In
practice,
then, it is the fundamental right to education that prevails, even
though this may conflict with federal legislation on foreigners’
residence
or settlement. A study carried out in the cantonal administrations shows that
children attend school in the cantons whatever
their residence status: in
cantons such as Graubünden, however, there is a requirement of a minimum
probable period of residence
of three months.
6. Disabled children[4]
568. Education for disabled children in Switzerland is a form of
specialist teaching, for which a specific approach known as special
education is
used. Specialist education is strongly influenced by legislation on disability
insurance, which provides for funding
for the education of disabled
children.
569. Early special education for preschool children with
disabilities aims basically to apply special educational techniques and provide
support to the parents. Pre-school special education may be provided at the
child’s home, at an independent or multipurpose
facility, or as a service
provided by a special school, a home or a clinic.
570. There are two
institutional frameworks for special education within the compulsory school
system:
Special classes within public schools;
Special schools
recognized by the disability insurance scheme.
571. Special classes cater chiefly for children with learning difficulties or
behavioural problems. Generally speaking, they offer
introductory classes (the
first year curriculum spread over two years), development classes, small classes
for children with learning
difficulties, and classes for children with language
problems or physical disabilities.
572. Special schools are separate
institutions for physically or mentally disabled children on a daily or boarding
basis. They are
wholly or partly funded by the disability insurance scheme and
their legal framework may be provided by the canton or by private
foundations or
associations. All cantons have institutions for mentally disabled children and
young people and throughout Switzerland
there are special schools funded by the
disability insurance scheme for children with behavioural problems, physical
disabilities
or language difficulties.
573. As a supplement to the
teaching provided in special classes or in special schools funded by the
disability insurance scheme,
there are also school medical services that offer
support in a range of areas such as speech therapy, psychomotor education and
rehabilitation,
and school psychological services.
574. In recent years
there has been a growing trend towards integrating special education into public
schools,[4] particularly in
French-speaking Switzerland. Special classes for children with difficulties are
increasingly to be found in the
same building as the normal primary school.
Efforts are also being made in a number of cantons to integrate children with
physical
or mental disabilities. A variety of experiments is being carried out,
ranging from individual integration, where primary classes
include children with
a sensory or mental disability, to collective integration, where special
education classes are located on the
same premises as the normal primary school
and some activities are carried out together.
575. After completion of
compulsory education, the law provides that young people with disabilities shall
have the opportunity to
take up vocational training. They are helped in their
choice by regional vocational rehabilitation offices set up as part of the
disability insurance scheme. Under the legislation on vocational training, they
may be granted certain facilities with regard to
training courses or
apprenticeship examinations. There are special vocational training schools for
apprentices with sensory disabilities,
and those with mental disabilities may
take either an initial vocational training course, in accordance with the
legislation on disability,
or an elementary vocational training course, in
accordance with the legislation on vocational training, depending on the
severity
of their handicap. There are also sheltered workshops in a number of
companies, where they can take vocational training courses.
576. At both
the cantonal and inter-cantonal levels, then, there is a whole network of State
or State-supported facilities providing
appropriate care and support for the
disabled from a very early age, covering school, vocational training and
employment, and including
care for older people. The network expands in
response to specific needs and adapts to accommodate new developments in the
field
of care for the disabled, for example by offering further training,
helping with integration, or providing new types of housing.
7. Low achievers and gifted children
(a) Low achievers
577. As
part of a long-term study conducted with the support of the National Scientific
Research Fund, researchers from Fribourg University
questioned 68 young adults
with educational difficulties. It emerged that those who had not done well in
school but had remained
in normal classes did better at work and had better
career prospects than those who had been in smaller special classes. The point
at which special education is provided, and its duration, also seem to be a
factor in the career development of low-achieving students:
the earlier
small-group teaching is introduced, and the shorter the period of application,
the better the career prospects. One
way of improving the situation of
school-leavers from the smaller classes would be for special schools to offer a
course specifically
designed as an introduction to working life, but which would
not necessarily end on completion of compulsory education. The following
differences between the sexes were noted: young men seeking a temporary
occupation when they finish school tend to opt for a year
working or considering
their choice of future employment, which gives them a chance to sample their
chosen occupation. Young women,
on the other hand, tend to choose a
year’s domestic employment apprenticeship, which means they are more
likely to remain in
unqualified work.
(b) Gifted children
578. Along with
increased encouragement for children with educational problems, there has
recently been an increasing demand for special
help for gifted children. More
and more parents and teachers are raising this problem with school authorities.
Specialists estimate
that between 3 and 5 per cent of children are gifted
children, yet the public education system still makes little special provision
for them. To avoid the risk of boredom at school, which can lead to disruptive
behaviour or depression, the cantons allow them,
among other things, to take
advanced courses, to skip certain classes or to take special language or
information technology courses.
For parents looking for additional motivation,
however, there remains the possibility of sending the child to private school.
The
“Talenta” Institute, in the canton of Zürich, is the first
private school for gifted
children.[428]
8. Illiteracy
579. Switzerland has no precise statistical
data on illiteracy. A certain amount of research has been done, however,
and, according
to the most widely accepted estimate, there were
between 20,000 and 30,000 functionally illiterate individuals in the
country as
a whole in the early 1990s: these figures refer only to Swiss adults
who have completed their education without mastering reading
and
writing.[429]
580. Between
12.9 per cent of the population (German-speaking Switzerland)
and 14.2 per cent (French-speaking Switzerland) experiences
great
difficulty in reading and understanding everyday
texts.[430]
581. Switzerland’s efforts to combat illiteracy include support for
adult education and more general measures to improve the
educational attainment
of all school students, including more flexible systems of assessment,
pedagogical support, a policy of integration,
reception classes, extension of
pre-school education and provision of places in special
education.
582. Switzerland is also one of 29 OECD countries taking part
in a programme for international student assessment (PISA), the aim
of which is
to assess to what degree children approaching the end of their compulsory
education have acquired the knowledge and skills
that are essential for full
participation in society.
583. As in the past, there are initiatives at
both the regional and the local levels, with strong participation by independent
associations,
with the support of the local authorities. A number of
associations are extremely active in the area of adult literacy and organize
many courses (Lire et écrire, International Movement ATD Fourth World,
the “open universities” (universités populaires) and
leisure centres).
584. Various forms of counselling, care and assistance
are provided by cantons and by the social services in communes, regions and
cantons to the public at large, and particularly to more socially disadvantaged
parents and children. In addition, all cantons have
counselling services to
detect development problems in infants and young children or special
circumstances that might require intervention
by specialists in various fields.
The chances of detecting social problems increase once a child has reached
school age, and there
is a correspondingly greater range of measures that can be
taken by services and institutions to encourage children and parents,
or to
provide educational, psychological or social support.
9. International cooperation
585. Switzerland is actively involved in
international cooperation at various levels, including the Council of Europe,
OECD and UNESCO.
586. The Conference of Directors of Education has also
issued a number of recommendations encouraging exchanges in the area of
education
and training of school students, apprentices and
teachers.[431] The
cantonal authorities, for example, are advised to consider making exchanges with
Switzerland’s other language regions
and with other countries part of the
curriculum in compulsory and post-compulsory education, vocational training of
apprentices and
teacher training. Fondation CH, for example, is very
active in the area of youth exchanges.
B. Aims of education (art. 29)
587. Generally speaking, cantonal legislation
sets forth the aims of education and the goals and objectives of each level of
education.
588. In broad terms, the aims are as follows: the public
education system provides support for the family in educating children;
contributes to the harmonious development of children’s abilities;
inspires a willingness to show tolerance and act responsibly
towards other
people and the environment, as well as display an understanding of other
languages and cultures; and
transmits to every child the knowledge and
abilities needed as a basis for vocational training, attendance at other schools
and lifelong
learning.[4]
Thus cantonal policy is to set educational goals which by their nature oblige
the school to act as a support to children and young
people as they
mature.
589. Article 5 of the new Ordinance on the Recognition of
Maturité Certificates
(ORM)[433] sets forth a
number of aims of education: schools issuing maturité
certificates are expected to enable students to acquire sound basic knowledge
appropriate to the secondary level and develop an open
and discerning mind. In
particular, they should prepare students for the responsibilities they will
assume in society and develop
their intelligence, self-discipline, ethical and
aesthetic sensibilities and physical abilities. Students should be capable of
acquiring
new knowledge and developing curiosity, imagination and an ability to
communicate and to work alone or in a group. They should learn
a national
language and attain a reasonable level in other national and foreign languages,
and learn to discover the richness and
characteristics of the cultures
transmitted by those languages. Students should be capable of understanding
their place in the natural,
technological, social and cultural world they live
in, at both the Swiss and the international levels, and in both contemporary and
historical terms. They must prepare to shoulder their responsibilities towards
themselves, others, society and the environment.
590. Teachers have a
certain amount of freedom, within the legal framework, to decide what methods
they will use to implement educational
guidelines and curricula. The attainment
of these educational goals and the encouragement children and young people are
given to
achieve personal autonomy is an outcome of the inherently respectful
approach teachers adopt in their work with individual students.
591. All
the cantons emphasize pluralism in teaching methods and approaches in public
education today. Action-oriented teaching and
an extensive range of types of
education form children’s character and develop their independence, their
willingness to cooperate,
their decision-making abilities and their judgement.
Many cantons also develop and promote students’ personal autonomy and
encourage the establishment of class assemblies.
C. Leisure, recreation and cultural activities (art. 31)
592. Although not explicitly enshrined in Swiss
law, every child in Switzerland naturally has the right to rest and leisure, to
engage
in play and recreational activities appropriate to his or her age and to
participate freely in cultural life and the arts.
593. Given the
importance of leisure and cultural activities in children’s lives, it is
essential that they should be accessible
to all children and young people.
Financial aid is therefore offered to disadvantaged parents who wish to enable
their children
to develop their non-academic abilities (music, art, sport,
etc.). In addition, subsidies from the authorities enable groups or
associations such as sports federations and music or youth clubs, to offer a
wide range of activities at low rates or even free of
charge. Various music
schools and other institutions have sliding scales for rates depending on
income.[434] In addition,
many associations offer family discounts. It is also possible to apply to
private foundations and organizations such
as
Pro Juventute and the Red
Cross, or cantonal or local funds. The cantonal regulations on grants enable
artistically or musically
talented young people from disadvantaged families to
obtain appropriate training if long studies are needed.
594. Youth
policy, too, falls mainly within the jurisdiction of the cantons and the
communes. The Confederation has only limited
competence in this area, but that
includes the provision by Parliament of an annual appropriation - which in
recent years has amounted
to around Sw F 7 million per year -
under the Youth Activities Act (LAJ) of 6 October
1989.[435] This Act,
allows support to be given to leisure-related organizations and national-level
projects, provided that the extracurricular
youth activities in question involve
games or sport, health, nature and the environment, training, culture or
society. Nearly 130
organizations receive LAJ grants, including the Pro
Juventute foundation.
1. Play areas and space to move around freely
595. Efforts are
continually being made throughout Switzerland to improve play areas and open
spaces that permit children’s
personal development, around their home, in
school playgrounds and in public areas and parks. To that end, many towns are
attempting
to reduce road traffic in residential areas.
596. A study on
children in towns carried out as part of a national research programme on
traffic in towns confirmed that the residential
environment has a considerable
influence on children’s everyday life and
development.[436]
2. Children, the media and leisure activities
597. In April 1997,
the Swiss radio and television research service (SSR) published a study on the
place of the media in the daily
life of children aged 5 to
14.[437] The study was
based on a survey of 2,003 children and their parents that was carried out using
the Télécontrol electronic
ratings system. It yielded some very
interesting results, as detailed below.
598. In terms of frequency of
use, television remains the medium of choice for Swiss children in this age
group. Radio holds little
interest for young children and acquires importance
only when they get older and become interested in music.
599. Swiss
families are very well equipped with electronic media appliances: 98 per cent
of Swiss families have a television; 30
per cent of children have electronic
games that can be connected to the television; half of the children have their
own GameBoy or
video game such as Nintendo or PlayStation; nearly one third
of them have access to a personal computer; and 80 per cent of
families
have a video cassette recorder.
600. Children prefer to play
outdoors.[438] Television
or video films were second choice, followed by indoor games. Media-based
activities - chiefly watching television or
video cassettes, listening to music,
playing GameBoy and reading - are becoming increasingly important, or at least
more and more
children are expressing increasing interest in such
activities.
601. The following is a fairly typical daily routine: on
weekdays, children spend a good five hours a day at school, and the return
journey takes around three quarters of an hour. They sleep around ten and three
quarter hours. Homework and help with housework
account for
another 50 minutes and meals another one and a half hours. They spend
four hours getting dressed or washed or being
around the house in general. The
rest of the time is spent as follows: one hour a day playing outdoors, one hour
doing sport (or,
if not, playing outdoors), half an hour going for a walk or
shopping with their parents.
602. Children spend considerably more time
in front of the television at the weekends, but also seem to use their free time
at weekends
to play. Nearly one in two children play outdoors and on Sundays
spend three and a half hours outside.
603. Nearly half of all children
spend more than two hours during the week doing some sport, and up to three and
half hours on Sundays.
3. Sport
604. Article 68 of the Constitution stipulates
that the Confederation shall promote sport, and particularly sports education.
It may also legislate on youth sport and
may make sports education in schools
compulsory.
605. As regards the range of activities available to children
and young people, Switzerland also observes the International Charter
of
Physical Education and Sport, adopted by UNESCO in 1978, which provides
that every human being has a fundamental right of access
to physical education
and sport, which are essential for the full development of his
personality.
606. The public sector therefore also has responsibility for
the following areas:
Youth and Sport (J+S), a joint institution of the Confederation and the cantons, aims to promote sports activities for young people aged between 10 and 20. J+S tries to motivate as many young people as possible to take up a sport, to develop their skills in their chosen sport, to practise their sport independently and to make sport a part of their way of life. Nearly 850,000 young people take part in the Youth and Sport programme every year. Every canton has a Youth and Sport office, which promotes a wide range of sporting activities and many regions and communes offer children and young people “holiday passport” activities during the summer;
In schools, there are three hours of compulsory sports per week at all levels. As well as compulsory lessons, many schools offer sports as part of a range of options for students, and this also provides an opportunity for contact with private sports clubs;
The Confederation invests Sw F 100 million a year in sport at various levels, of which Sw F 65 million is allocated to youth sports;
A significant proportion of the Sw F 900 million spent by cantons and communes on sport also goes to youth sports;
Sports that are organized privately, with financial support from the
Confederation for training of coaches, make special provision
for children and
young people, working closely with J+S. The sports programmes of such clubs and
of J+S are open to Swiss nationals
and to foreigners.
607. In 1997, the
Federal Office for Statistics conducted an inquiry into health, from which it
emerged that 44.8 per cent of young
people aged between 15 and 17 found their
leisure time very satisfying; 49.5 per cent found it quite satisfying; 5.4
per cent not
particularly satisfying; and 0.3 per cent not at all
satisfying. As to whether they enjoyed gym, keep-fit and sports,
81.1 per cent
said they did and 18.9 said they did not. As regards
sports clubs, 31.1 per cent of 15 to 17-year-olds said they went several
times
a week; 16.3 per cent said they went once a week; 5.5 per cent between
once and three times a month; 5.3 per cent less than once
a month; and 41.9 per
cent said they never went to sports clubs.
4. Culture
608. Like education, cultural activities are
primarily a matter for the cantons and the communes. Only occasionally does the
Confederation
organize cultural activities. The Constitution stipulates,
however, that the Confederation may support cultural activities of national
interest and encourage art and music, in
particular in the field of education
(art. 69).
609. The Pro Helvetia foundation, which is entirely funded by
the Confederation, is responsible for cultural activities at the federal
level
in Switzerland and abroad. Such activities include support for contemporary
cultural production in Switzerland and also promotion
of cultural exchanges
within the country, among the four indigenous linguistic cultures (French,
German, Italian and Romansh) and
between the indigenous and immigrant
populations. The foundation’s principal task - one to which it devotes
more than two
thirds of available resources - is, however, to develop cultural
relations with other countries. This work includes North-South
cultural
exchange programmes. Pro Helvetia is especially active in the countries of
central and eastern Europe, and in four of them
(Czech Republic, Hungary, Poland
and Slovakia) it has opened centres to promote targeted East-West cultural
exchanges and provide
support for local cultural projects.
610. As to the
cantons, they support children’s and young peoples’ artistic and
cultural development, particularly in
the areas of music, art and theatre. Many
of these activities are also encouraged and supported as school subjects (music,
art,
drama, etc.). Every canton also has private clubs and groups providing
activities for children and young people, which the authorities
support either
through funding or by providing services. In the area of music, the cantons and
communes award sizeable grants to
music schools and academies and their various
departments.
611. Many of the cantons find other means of
providing incentives for specific cultural activities for children and young
people,
as can be seen from the following examples:
In the canton of Geneva, the Education Department has an extracurricular activities service (service de loisirs) attached to it. Plays and concerts are organized in schools; school students are given educational support in museums; artists invite school classes into their studios; and cultural organizers in such areas as music, dance, singing, theatre and cinema clubs, receive grants for their work with young people;
The city of Lucerne employs two people, each on a half-time basis, dealing with children’s and young people’s activities respectively. The canton of Lucerne has set up an information and coordination network with youth directors in the various communes. Six youth councillors from Pro Juventute are at the disposal of schools and authorities to help create areas for recreation and games. The canton provides support for a contact centre for children’s and young people’s theatres;
The canton of Solothurn provides advice and support for some 35 projects every year, under its ordinance on cantonal aid to youth;
As bilingual cantons, Valais and Fribourg encourage exchanges between their linguistic communities and language holidays for children and young people in an area of the canton where the other language is spoken;
Basel supports a wide variety of leisure and sports activities, including special gymnastics for children with coordination problems. The canton also provides sizeable financial incentives to youth theatres, choirs and music groups;
Under its law on sport and coordination of youth activities, Ticino recognizes and provides longer-term support to extracurricular initiatives and activities. The canton’s Youth Office coordinates activities for young people, conducts needs analyses and initiates projects accordingly, promotes youth leader training and ensures appropriate publicity. Parents, young people, teachers, authorities and clubs can obtain full information on extracurricular activities, holiday camps, and other youth activities throughout the canton, through the “Infogiovani” project. The canton of Ticino has also established a legal framework for support to holiday camps, the use of State buildings and facilities free of charge, the promotion of culture - libraries in particular, and the provision of support for language holidays in German- and French-speaking Switzerland.
VIII. SPECIAL PROTECTION MEASURES
A. Children in situations of emergency (arts. 22, 38 and 39)
1. Refugee children (art. 22)
612. In
Switzerland the problem of juvenile asylum-seekers has led the authorities to
undertake a detailed examination of all its
aspects and to adopt various
detailed measures intended above all to improve the protection of this category
of foreigners and to
ensure the proper application of appropriate asylum
procedures. Not only political circles but also the competent legislative
authorities
at the federal and cantonal levels (cantonal tutorship authorities,
cantonal immigration authorities, the Federal Office for Refugees
(ODR), the
Federal Commission for Refugee Questions and the Swiss Asylum Appeals Commission
(CRA)) have manifested their firm intention
to find solutions to specific
difficulties raised by foreign juveniles, and above all unaccompanied juvenile
asylum-seekers (RMNAs)
asking Switzerland for protection. The measures adopted
in this context, some before 26 March 1997, the date on which the Convention
entered into force for Switzerland, either with a view to specifying the
application of certain existing norms or introducing new
rules covering juvenile
asylum-seekers, are based essentially on the principle of the best interests of
the child, which is embodied
in article 3 of the Convention, as well as
various obligations to provide protection and assistance under treaty law, and
in particular
under article 22 of the Convention.
613. A few words should
be said in explanation of the role played by the Federal Commission for Refugee
Questions,[439] whose
functions are basically those of an advisory body for the federal authorities.
In order to obtain an overall view of migration
policy, the Commission evaluates
the asylum and refugee situation and adopts positions on related questions with
ramifications in
the political, legal humanitarian and social sectors. It
submits recommendations to the Government. At the present time the Commission
has 22 members from the political and economic spheres, cantonal authorities,
social security and the church. Its secretariat is
provided by the Federal
Office for Refugees.
(a) Statistics
614. During 1996, 5,463 foreign juveniles
(including those seeking family reunification) requested asylum in Switzerland.
The corresponding
figure was 6,997 for 1997, 12,026 for 1998 and
15,537 for 1999. From January 1996 to the end of December 1999,
about 65 per cent
of juvenile asylum-seekers were male. Over the
same period, about 30 per cent of the total number of
asylum-seekers were juveniles.
The number of RMNAs was about 700 in 1996
(over 12 per cent of the total number of juvenile asylumseekers in 1996),
1,300 in 1997
(over 18 per cent of the total number of juvenile asylumseekers in
1997), 2,500 in 1998 (over 20 per cent of the total number of
juvenile
asylumseekers in 1998) and 1,800 in 1999 (over 11 per cent of the total number
of juvenile asylum-seekers in 1999). Over
95 per cent of unaccompanied foreign
juveniles who requested asylum in Switzerland between 1996 and 1999 were between
15 and 18 years
of age. The main countries of origin of juvenile
asylum-seekers were Yugoslavia, Albania, Bosnia and Herzegovina, Turkey, Sri
Lanka,
Somalia, the Democratic Republic of the Congo, Angola, Iraq, Guinea,
Ethiopia, Sierra Leone and Guinea-Bissau.
615. As regards recognition of
refugee status and the grant of asylum, 1,138 foreign juveniles (including those
seeking family reunification)
had their requests granted in 1996, 1,376 in 1997,
1,059 in 1998 and 1,141 in 1999. From January 1996 to the end of December 1999,
the number of requests for asylum granted to children and young people under 18
years of age represented over 50 per cent of the
total number of requests
granted by the ODR. Most of the juvenile asylum-seekers who were granted asylum
in Switzerland during this
period were from Yugoslavia, Bosnia and Herzegovina,
Turkey and Iraq.
616. Moreover, a large number of juvenile asylum-seekers
who failed to obtain asylum were authorized to stay on Swiss territory, being
granted temporary admission, mainly because of obstacles hampering their return
to their country of origin or provenance. A total
of 2,063 foreign juveniles
(including those seeking family reunification) were granted temporary admission
during 1996; the corresponding
figure for 1997 was 1,161, for 1998 it was 2,618
and for 1999 it was 9,002. The number of juvenile asylum-seekers granted
temporary
admission between January 1996 and the end of December 1999
represented over 40 per cent of the total number of temporary admissions
granted. The majority of juvenile asylum-seekers admitted temporarily to
Switzerland during this period were from Somalia, Sri Lanka,
Bosnia and
Herzegovina, Yugoslavia, Angola, Turkey and Iraq.
(b) Legal framework
617. Switzerland is a party to the United
Nations Convention of
1951[440] and to the
Protocol of 1967[441]
relating to the Status of Refugees. Switzerland has also acceded to the
International Covenant on Economic, Social and Cultural
Rights and the
International Covenant on Civil and Political Rights. Moreover, it also takes
into account other instruments, such
as the Guidelines on Protection and Care of
Refugee Children, adopted by UNHCR in 1988 and amended in 1994, and the
Guidelines on
Policies and Procedures in dealing with Unaccompanied Children
Seeking Asylum, adopted by UNHCR in 1997.
618. Moreover, certain rules of
precedence regarding international law and domestic law determine the legal
system applicable as well
as the authority that is competent to rule on
questions involving the exercise of civil rights and protection. Under of the
Federal
Act of 18 December 1987 concerning Private International Law
(LDIP)[442] and the Hague
Convention of 5 October 1961 concerning the powers of authorities and the
law applicable in respect of the protection
of
infants,[443] the question
of the exercise of civil rights and that of protection are, apart from certain
exceptional situations (such as acquisition
of the exercise of civil rights
before arrival in Switzerland), governed by Swiss law, and more specifically by
the Civil Code, and
the Swiss authorities are in general competent to take the
necessary decisions in these fields.
619. Federal asylum legislation
(Federal Asylum Act
(Lasi)[444] and Ordinance 1
on asylum procedures (OA
1)[445]), the completely
amended text of which entered into force on 1 October 1999, now
contains specific provisions guaranteeing that adequate
account will be taken of
the special situation of RMNAs in asylum proceedings (article 17 of the Act and
article 7 of the Ordinance).
Moreover, as indicated in the commentary
concerning article 10, the Federal Asylum Act contains provisions on family
reunification
and respect for the principle of the unity of the family.
(c) Participation in asylum proceedings
620. In Switzerland, participation in asylum
proceedings by any juvenile, regardless of age, seeking asylum personally or
through
a representative, constitutes a basic principle. In other words, any
juvenile asylum-seeker capable of forming his or her own views
can personally
submit a request for asylum to the competent authority. Juveniles incapable of
forming their own views may act through
a representative because, in accordance
with the provisions of civil
law, the submission of a request for asylum is regarded as a strictly
personal right which may be exercised through a representative.
A request for
asylum may therefore be submitted by the representative of a person incapable of
forming his or her own views because
he or she is too young.
(d) Asylum proceedings in the presence of accompanied minors
621. It may be noted that, in the conduct of
asylum proceedings, if the juvenile applicant is accompanied - especially by one
or both
parents - he or she will in principle be included in the request for
asylum submitted by the person or persons accompanying him.
However, since the
principle of personal procedure prevails in Switzerland, any juvenile
asylum-seeker having grounds for seeking
asylum may present them either
personally or through a representative. In application of the rules governing
family reunification
matters, and in accordance with the principle of the unity
of a family, when refugee status is granted to the parents of a juvenile
applicant, the latter will in general also be recognized as a refugee. The
temporary admission of a member of a family stricto sensu will also in
principle result in the temporary admission of other members of that
family.
(e) Asylum proceedings involving RMNAs
622. In matters of asylum, the Swiss
authorities focus mainly on the most vulnerable juvenile applicants, namely
RMNAs. For this
reason, the most recent provisions adopted in this area concern
this group of asylum-seekers in particular. From the outset of the
asylum
procedure, the competent authorities are required to take into account all
factors connected with the fact that the applicants
are juveniles and to apply
certain measures specific to them.
623. For example, the Registration
Centre (CERA), which will in principle be the first service of the ODR to have
contact with the
juvenile applicant, will at times have to make certain
inquiries (and particularly arrange a medical examination) to determine the
age
of the applicant if this is not sufficiently clear and if there are serious
doubts about his or her alleged age, particularly
because of appearance or
behaviour. In this context, the cantonal tutorship authorities, the authorities
responsible for the protection
of all minors residing in their territory, have
noted that a number of applicants have claimed to be minors on their arrival in
Switzerland
in order to benefit from rules applying to RMNAs only, whereas in
point of fact they had already attained the age of majority. As
a result,
applicants were wrongly placed in reception centres reserved for minors or
erroneously placed in the school system at a
level reserved for juveniles; this
inevitably gave rise to certain difficulties of a relational and organizational
nature. On the
other hand, some asylum-seekers have tried to make out that they
were older than they actually were in order to show that they were
old enough to
exercise a gainful activity (minimum legal age fixed at 15 years according to
the Federal Act concerning Work in Industry,
Crafts and
Commerce).[446] It was
therefore in an effort to provide as much protection as possible for the best
interests of genuine juvenile applicants that
measures to determine age were
introduced at the outset of the procedure, in close cooperation with the
tutorship authorities, as
a means of rapidly detecting obvious
abuses.
624. It is also the duty of the CERA to give a first hearing
to the juvenile applicant, if he or she appears to be capable of forming
his or
her own views, in order to collect the maximum amount of personal and family
information (family ties and situation in the
country of origin, persons
responsible for his or her maintenance and development, etc.), as well as basic
information about why
he or she left the country of origin. This is done in
particular to enable the authorities, if necessary, to conduct rapid inquiries
in the RMNA’s country of origin or provenance in order to trace family
members. If dealing with a young child whose capacity
for forming his or her
own views is doubtful or completely absent, the CERA will, if necessary,
endeavour to clarify matters with
any person who accompanied him or her to
Switzerland or with the assistance of relatives. The findings concerning the
RMNA’s
degree of development are recorded in a form that is always
included in the file. This document, as well as the data obtained at
this stage
of the procedure, constitutes a valuable source of information for the cantonal
authorities, enabling them to adopt without
delay the protection measures
necessary and to take suitable action. Every effort is made to ensure that the
RMNA spends as little
time as possible at the CERA. It is there that juvenile
applicants are given a medical examination by a health service in order
to
detect any diseases as quickly as possible and immediately to provide any
necessary treatment. They are then assigned to a canton.
In selecting the
canton, account is taken of the possible presence of relatives in Switzerland as
being in the interests of the
minor.
625. Article 17 of Lasi states that
the cantonal authorities are required immediately to assign to every RMNA a
representative to
protect the interests of the child throughout the asylum
procedure. Matters reflecting the special status of juvenile applicants
during
this procedure and relating in particular to protection, the appointment of a
representative and his or her role, the conduct
of hearings and methods of
evaluating age, are regulated by an executing ordinance under the amended Act,
namely, the new Ordinance
1 concerning Asylum
Procedure,[447] as well as
Asylum Directive 23.2 drawn up by the
ODR.[448] Article 7 of
this Ordinance states that any unaccompanied juvenile applicant must be assigned
a tutor or guardian by the cantonal
authority in accordance with the Civil Code.
Under the provisions of the Civil Code, the cantonal immigration authorities are
required
to notify the competent tutorship authority immediately of any minor
who is not under parental authority so as to enable it to apply
a legal
protection measure without delay. This normally consists in the appointment of
a tutor (if the parents have disappeared
or died) or guardian. If a protection
measure of this kind cannot be applied immediately, the cantonal authority is
required to
appoint a trustworthy person without delay to assist the RMNA
throughout the various stages of the asylum procedure until such time
as a tutor
or guardian is appointed.
(f) Assistance, support and accommodation
626. Questions of organizing assistance,
support and accommodation are under the jurisdiction of the cantons. Juvenile
applicants
(and especially young RMNAs) may be placed in foster families or in
centres, depending on their age and degree of development. These
centres are
managed by persons, and in particular social assistants, who have received
adequate training enabling them to perform
the functions involved. In this
case, the Confederation provides the canton in question with a daily amount
covering assistance
and support costs as well as another daily amount to defray
accommodation costs. If the cantonal authorities consider it necessary
to
place an RMNA in a specialized public-interest institution, the
expenditure involved is also in general defrayed by the Confederation.
In
addition it reimburses the cantons the amounts they spend on assistance to
asylum-seekers admitted temporarily and also, if necessary,
defrays the cost of
assisting foreigners to whom asylum has been granted until such time as they
have obtained a residence permit.
In this case, the cost of assisting refugees
is subsequently assumed by the cantons. Arrangements have been made by the
authorities
enabling refugees at any time to call upon a mutual assistance
organization of their choice for the assistance and advice they need
to
facilitate their integration in Switzerland. It may be added that all
asylum-seekers are insured under the sickness insurance
system (LAMal) and that
the Confederation pays the premiums as well as deductibles, except if the person
concerned exercises a gainful
activity. The same is true of medically
necessary dental treatment.
(g) Schooling and training
627. Matters concerning the schooling of
juvenile applicants are under the jurisdiction of the cantons, which defray its
cost. Generally
speaking, the juvenile applicant begins his or her primary or
secondary education within three months of arrival in Switzerland unless
a
negative decision by a court of first instance has been handed down in the
meantime and there is a likelihood that he or she will
shortly be returned to
the country of origin or provenance. Juvenile applicants are in principle
assigned to special classes where
they follow courses in the language spoken in
their place of residence in Switzerland; they are then gradually integrated into
normal
classes. The schooling of juvenile applicants beyond the age of
compulsory education is also under the jurisdiction of the cantons.
However, in
order to promote and keep up the social skills of young applicants and to
facilitate their reintegration, the Confederation
subsidizes training
programmes, and, in particular, programmes to assist in their return in the form
of modules, each lasting about
six months and designed to promote a professional
outlook among young applicants. The purpose of these programmes, which should
be organized so as not to complicate possible return procedures, is to upgrade
their skills prior to their return should they fail
to satisfy refugee status
requirements. They are generally preceded by courses in the language spoken in
their place of residence
in Switzerland.
(h) Hearings on why a request for asylum is made
628. During the next stage of the asylum
procedure at the cantonal level, following the appointment of a representative,
the cantonal
immigration authorities arrange detailed hearings for RMNAs who are
clearly capable of forming their own views and who are therefore
able to grasp
the meaning and purpose of asylum procedure at which they are asked to explain
why they are requesting asylum and what
reasons and fears led them to leave
their country of origin. In this connection, article 7 (7) of the Asylum
Ordinance as well as
the ODR’s Directive of 20 September 1999
state that the person conducting the hearings should do everything possible to
ensure
that they take place in suitable circumstances and that all questions
specific to minors are dealt with or clarified adequately.
It may be added
that in Switzerland a representative of a mutual assistance organization
recognized by the Confederation participates
in principle in all hearings of
this nature as an impartial observer.
629. RMNAs whose capacity for
forming their own views is doubtful or lacking are not given hearings by the
cantonal authorities on
their reasons for requesting asylum; their file is
transmitted directly to the competent ODR service. Their capacity for forming
their own view will then be determined in cooperation with the applicant’s
representative. If their capacity is recognized,
the federal official
responsible for dealing with the file can arrange the hearing in conjunction
with colleagues who have received
training in psychology or special education,
as well as with lawyers who are experts in the problems of minors; he may even
refer
the file directly to them, in which case they themselves arrange the
hearing. In cases where the juvenile applicant is not capable
of forming
his or her own views, an interview or an exchange of correspondence takes
place between the ODR and the juvenile’s
representative in order to
confirm that a request for asylum has been submitted on behalf of the RMNA and
to establish the facts
jointly. In this context, any relatives that the
RMNA may have in Switzerland are also heard regarding the minor’s
reasons
for requesting asylum. Other inquiries, such as requesting information
from the Swiss Embassy in the country of origin or provenance,
may also be
initiated.
(i) Evaluation of the question of return and temporary admission
630. If the RMNA fails to satisfy the
conditions for refugee status, it is for the ODR to elucidate in an adequate
manner the various
aspects of minority (namely, age and degree of independence,
and actual social and economic conditions in the country of origin)
as well as,
if necessary, certain medical aspects, from the standpoint of whether return
would be lawful, mandatory or possible in
accordance with its Directive of
20 September 1999 concerning requests for asylum submitted by juvenile
unaccompanied applicants
and adults incapable of forming their own views and the
case law of appeal authorities on the subject. Under the Federal Act
concerning
the Permanent and Temporary Residence of Foreigners
(LSEE),[449] the
foreigner’s return to his or her country of origin or provenance is not
lawful if it is contrary to Switzerland’s
commitments under international
law. Furthermore, return cannot reasonably be required if it implies real
danger for the foreigner.
631. According to the case law of the Asylum
Appeals Commission, the principle of the best interests of the child embodied in
article
3 of the Convention carries considerable weight in the examination
of the possibility of enforcing return. In this context, the
appeals authority
has stated that respect for this principle implied taking into account the
following specific factors connected
with the personality of the child and his
or her situation: age, degree of maturity, degree of dependence, the type and
nature of
his or her relationships (degree of kinship and intensity and firmness
of bonds) in the country of origin and in the host country,
the characteristics
of the persons in question (particularly their willingness and ability to
provide maintenance), the present degree
of development/training and future
possibilities in this respect, the degree of integration achieved as a function
of the length
of stay in Switzerland, as well as possibilities of reintegration
in the country of origin and possible obstacles. At this stage
of the
procedure, any problems likely to arise in connection with care and support in
the country of destination are therefore examined
and any investigations
regarded as necessary carried out. The Swiss authorities may thus be led
to undertake inquiries in the country
of origin in order to determine whether
there are any relatives, other persons or bodies capable of providing care and
support to the RMNA until he or she attains the age of majority. Such
inquiries are regularly carried out through the diplomatic
channel. To this end
the ODR may also request assistance from international organizations such as
ICRC (through a “tracing
request”) or UNHCR, and may provide them
with the information needed to try to track down members of the family in
agreement
and in cooperation with the RMNA and his or her representative. The
success of such inquiries depends to a great extent on the reliability
and
accuracy of the information supplied by the juveniles themselves. If, on
completion of this procedure and after having evaluated
all the points mentioned
above, the ODR considers that the return of a juvenile applicant cannot be
enforced, he or she will be granted
temporary admission, thereby enabling him or
her to continue to stay in Switzerland and to be covered by the protection
measures
provided under Swiss law for any minor temporarily or permanently
deprived of the family environment.
(j) Enforcement of return
632. If the return of the juvenile applicant
has been found to be enforceable, the need for arrangements connected with the
return
trip (escort, financial assistance, reception on arrival, transport
within the country of destination, etc.) is examined by the cantonal
authorities
in cooperation with the ODR. The need for such measures is evaluated in the
light of various considerations, such as
age, degree of independence, place of
destination and any other factors suggested by the file. In this context, a
federal directive
provides for the possibility of granting, subject to certain
conditions, financial assistance to the minor on his or her return in
order to
facilitate reintegration or integration in the country of origin or provenance.
Furthermore, any decision by the ODR rejecting
the juvenile applicant’s
request for asylum and ordering return may be appealed to the Swiss Independent
Asylum Appeals Commission
within 30 days of its notification.
(k) The continuing training of persons working in this sphere
633. As regards the continuing training of
persons involved in one way or another in the processing of juvenile applicants,
and in
particular those working in the fields of assistance, support and
accommodation, or who participate in the asylum application procedure,
it may be
noted that the ODR - sometimes in cooperation with other bodies - regularly
organizes seminars at which various aspects
of this delicate problem are
tackled. Such persons can also submit specific requests in connection with
various aspects of their
work and even request advice on ways of resolving the
difficulties they encounter in connection with juvenile applicants from ODR
lawyers specialized in this field and responsible for compiling and organizing
comprehensive documentation on the subject. These
lawyers themselves
participate in various symposiums and training courses dealing in particular
with the implementation of the Convention
and are subsequently called upon to
make the persons referred to above aware of the rights of the child contained in
the Convention
and the implications for asylum. They are also required to
evaluate the mechanisms created in this context and, if necessary, propose
any
modifications that might be necessary. A study covering all aspects of the
problem of juvenile unaccompanied asylumseekers has
been incorporated in the ODR
manual of inhouse asylum procedures, an essential tool for all persons involved
in asylum procedures
which is also distributed to all the ODR’s other
services.
2. Children affected by armed conflicts (art. 38)
and readaptation measures (art. 39)
(a) Switzerland’s activities on behalf of child victims of conflicts
634. In
accordance with its tradition and humanitarian commitment, particularly as a
State party to the Geneva Conventions of 12 August
1949 on the protection of
victims of war[4] and their
Additional Protocols of
1977,[4] Switzerland
attaches the greatest importance to the fate of victims of war and, in
particular, children.
635. Children are singularly exposed to the
consequences of armed conflict: they are extremely vulnerable victims and they
also participate
in fighting in various parts of the world. For these reasons,
Switzerland is endeavouring to ensure that children enjoy even greater
specific
protection in armed conflicts.
636. Switzerland’s activities on
behalf of child victims of armed conflict include the following:
Switzerland is working closely with the following international organizations active in this field and finances their activities: the United Nations Children’s Fund (UNICEF), the Office of the United Nations High Commissioner for Refugees (UNHCR) and the International Committee of the Red Cross (ICRC). Since 1997 Switzerland has made significant contributions to the Special Representative of the Secretary-General on the impact of armed conflict on children to support his awareness-raising activities and promote the demobilization as well as the reintegration of child soldiers into society.
Switzerland also supports the work of non-governmental organizations, such as
the Coalition pour mettre fin à l’utilisation
d’enfants
soldats (Coalition to Stop the Use of Child Soldiers), in order to increase the
international community’s awareness
of the situation of such children. It
has, for example, participated in regional conferences on the use of child
soldiers organized
by the Coalition in 1999 and 2000 (in Africa,
Latin America, Europe and Asia) and has to a large extent financed
them;
Switzerland has been trying for several years to get OSCE to pay special attention to the protection of the rights of the child, particularly in the context of armed conflict. It initiates and participates in a large number of activities and measures taken in this context;
The protection and promotion of the rights of the child affected by armed conflict constitute a priority for Switzerland in connection with preparations for the special session of the General Assembly on children for follow-up to the World Summit for Children to be held in New York in autumn 2001.
Switzerland is convinced that, in order to ensure better protection for children, it is important that the age limit for recruitment - whether voluntary or compulsory, by regular armed forces or by armed opposition groups - as well as the age limit for direct or indirect participation in armed conflict should be raised to 18. It has accordingly participated actively in the elaboration and adoption of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (January 2000) in the United Nations working group responsible for this question. It signed this instrument in September 2000 and is seeking its universal ratification and effective implementation;
Switzerland has also taken an active part in the elaboration of other international legal instruments aimed at improving the protection accorded to child victims of conflicts such as the ILO Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182), which Switzerland ratified in June 2000;
Furthermore, Switzerland has supported the inclusion in the Rome Statute of the International Criminal Court[4] of an explicit reference to the conscription, recruitment and use of children of under 15 as a war crime;
Conscious of the particularly great danger for children presented by
anti-personnel mines, Switzerland ratified the Convention on
the
Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and their Destruction on 24 March 1998.
Lastly, mention should also be made of the fact that, on the occasion of the tenth anniversary of the United Nations Convention on the Rights of the Child (20 November 1999), the DFAE organized a multimedia exhibition entitled “Children sacrificed: children in war” at Bern. A large number of children and young people were thus made aware of the tragic situation of child victims of armed conflict, and in particular child soldiers.
(b) The Swiss declaration
637. Children are provided with less protection
under the Convention than under the Protocol Additional to the Geneva
Conventions
of 1949 relating to the Protection of Victims of NonInternational
Armed Conflicts (Protocol
II).[453] Since article 38
of the Convention fails to increase the protection already accorded to children
in armed conflicts by the provisions
of international humanitarian law in force,
Switzerland made a declaration when it became a party to this instrument,
referring expressly
to the duty of every State to apply the standards of
international humanitarian law and national law insofar as they provide the
child with better protection and assistance in armed conflicts.
(c) Military service in Switzerland
638. Every male Swiss citizen is required to do
military service. Swiss female citizens may volunteer to do so. On the basis
of
the militia system, Swiss military service comprises a number of different
stages. The recruit first attends a school for recruits
(15 weeks),
subsequently supplemented by a series of refresher courses, sandwiched in
between periods of civilian life, whose duration
and frequency vary. Persons
who, at the school for recruits, are selected for
training as noncommissioned officers and, following further selection,
training as higherlevel noncommissioned officers or officers,
attend a more
comprehensive course. In addition, each citizen required to perform military
service has to participate in compulsory
shooting practice at regular intervals
in addition to his service.
639. The Swiss Federal Act concerning the
Army and Military Administration
of 3 March 1995,[454]
states that persons subject to military service have to enlist as recruits. The
Federal Council’s Ordinance concerning the
Recruitment of Conscripts of 17
August 1994[455] states
that all men required to perform military service who turn 19 during a given
year are enlisted by conscription.
640. There are, however, a number of
variations. For example, under article 103 of the Federal Act on Aerial
Navigation concerning
measures to encourage the training of young pilots,
preparatory aeronautics courses are organized at appropriate private flying
schools.
Candidates should register at the latest by 31 December of the year
during which they reach the age of 16 (exceptionally 17). However,
it is not
until they are 19, when they are called up, that pilot candidates are in
practice assigned to the Air Force.
(d) Rehabilitation measures
641. To the extent that the civilian population
is becoming increasingly involved in armed conflicts, children are also
suffering
more from the violence engendered by war. Children who experience
conditions of this kind need special kinds of therapy. For this
reason,
Zürich’s medical and psychological school service has for several
years been following children and young people
who have been traumatized by the
events they experienced as a result of armed conflicts and migration.
642. At the twenty-seventh Conference of the Red Cross and Red Crescent,
Switzerland undertook to promote the rights of the child
in armed conflicts,
particularly with a view to the demobilization, reintegration and rehabilitation
of child soldiers.
B. Children in conflict with the law (arts. 40, 37 and 39)
1. Administration of juvenile justice (art. 40)
(a) Criminal law on minors
643. As
has already been mentioned above, the Criminal Code contains special regulations
(criminal law on minors) applicable to offences
committed by children from 7 to
18 years of age (CP, arts. 8299).
644. The penalties provided for under
criminal law on minors vary in accordance with the age of the child. The
possible measures
and sentences described below are not in principle cumulative.
There are, however, two exceptions to this principle, the first making
it
possible to order educational measures in addition to detention or a fine, and
the second concerning young recidivists or young
people to whom a measure has
already been applied when continuation of the measure or its modification is not
sufficient.
(i) Penalties applicable to children of over 7 but less than 15 years of age (CP, arts. 8388)
645. In the case of extremely difficult
children who have been abandoned or are in serious danger, the court may order
the application
of educational measures under article 84 of the Criminal Code,
in other words educational assistance, or placement in a family or
in a reform
school.
646. If the condition of the child calls for special treatment,
as in the case of mental or other disorders, the court may order special
treatment under article 85 of the Criminal Code.
647. In the case of
children not requiring an educational measure or special treatment, the court
orders a disciplinary penalty under
article 87 of the code, namely, a reprimand,
interruption of school attendance for up to six half days or
work.
648. No penalty is required under article 88 of the Criminal Code
if the child has already been punished or a measure applied, if
he or she
is sincerely sorry for the act - as by making up for it as much as possible - or
if three months have elapsed since the
time the offence was committed.
(ii) Penalties applicable to children of over 15 but under 18 years of age (CP, arts. 89-99)
649. If the young person requires special
educational care, namely, if he or she is extremely difficult, abandoned or in
serious danger,
the court orders educational assistance or placement in a family
or reform school (educational measures under CP, article 91). Placement
in an
institution of this kind is particularly advisable if the young person is in
serious danger or if he or she has committed a
crime or serious offence. Under
article 93 bis, the enforcing authority may order that the measure should
be applied in a centre promoting the work ethic if the young person has
reached
the age of 17.
650. Special treatment in accordance with article 92 of
the Criminal Code is ordered if required by the condition of the young person,
namely, if he or she is an alcoholic or drug addict, or suffers from serious
physical or psychological disorders.
651. If the condition of the young
person requires neither an educational measure nor special treatment, the court
can reprimand him
or her, require him or her to work, impose a fine, or sentence
him or her to imprisonment from one day to one year (criminal penalties
under
CP, article 95); the sentence is served in a block for young offenders and
not in penitentiary institutions for adults. In
accordance with article 96 of
the Criminal Code, fines and prison sentences may be suspended.
652. If
the court finds it impossible to decide whether the young person should be
punished or not, it may defer its decision and
fix a probationary period of
six months to three years (deferment of penalties under CP, article 97). If the
probation is a success,
the court refrains from imposing any penalty.
653. The court may also refrain from imposing any penalty or measure under
article 98 of the Criminal Code if the young person has
already been punished,
if he or she is sincerely sorry for the act and makes up for it as far as
possible, or if one year has elapsed
since the date of the
offence.
654. It is to be noted that the competent juvenile criminal law
authorities (courts, police officers, prison staff and lawyers) are
specialized
in juvenile law as well as in the psychology of children and young people.
Moreover, youth courts do not hesitate to
request specialized psychologists and
psychiatrists or specially trained social assistants working for the same or a
similar service
to undertake detailed studies of the situation of young
delinquents or of specific problems. In all cantons, educational measures
of a
fixed duration are applied exclusively in special institutions for children and
young people; the staff of these institutions
have generally been trained as
socio-educators, psychologists or psychiatrists. Cantons without such
institutions place children
and adolescents in those of other
cantons.[456]
(b) Amendment of criminal law on minors
655. As has already been mentioned above,
criminal law on minors is being amended. On 21 September 1998, the
Government submitted
to Parliament a new federal bill on the criminal status of
minors,[457] which is at
present being discussed in Parliament.
656. Mention should be made of
some of the main innovations of the bill. This instrument will not govern the
criminal status of minors
in parallel with adult criminal law but on the basis
of a specific law; the age of criminal responsibility will be raised from 7
to
10 years;[458] the guiding
principle that the integration of juvenile delinquents should be achieved
through education will be emphasized even
more;[459] the range of
penalties will be enlarged and made more flexible; and in the matter of criminal
procedure relating to minors, which
is under the jurisdiction of the cantons,
the bill establishes certain general conditions so as to satisfy minimum
requirements of
legality as regards the procedural status of the young people
concerned and their parents.
(c) Statistics concerning offences and penalties[460]
657. In 1997, 9,360 criminal sentences were imposed on children (from 7
to under 15 years of age) or young people (from 15 to under
18 years of
age). One third, or 33 per cent, of this number concerned children, and 67 per
cent young people, 15 per cent of the
children and young people sentenced being
girls; 81 per cent of the children and young people had appeared for the first
time before
a court whereas 19 per cent had been sentenced previously on one or
more occasions.
658. This pattern has remained virtually unchanged over
the past nine years. One third of the total number of sentences were imposed
in
the cantons of Zürich and Bern and one half (49 per cent) in the
cantons of Zürich, Bern, Vaud and BaselLand.
659. Over one half (59
per cent) of offences in 1997 came under the Criminal
Code (CP), 24 per cent under the Road Traffic Act
(LRC)[461] and 11 per cent
under the Narcotic Drugs Act
(Lstup)[462] while 5 per
cent involved offences under other federal laws. A large majority
(69 per cent) of offences under the Criminal Code
involved property.
Offences against freedom, and in particular unlawful entry of a person’s
home, accounted for 11 per cent
and those against life and physical integrity 8
per cent of the total number of offences covered by the Criminal Code. Two per
cent
were offences against sexual integrity.
660. As regards trends, the
total number of convictions increased from 7,000 in 1989 to 9,360 in
1997. In 1989, 82 people - both
Swiss and foreign since no distinction is made
between these two categories in the statistics - were sentenced per 10,000
people
in the same age group in the resident population. In 1997 the
corresponding figure was 103 per 10,000.
661. As regards penalties, most
of the 3,000 sentences imposed on children of 7 to under 15 years of
age involved disciplinary penalties
(80 per cent) - above all work and
reprimands. An educational measure was ordered in 7 per cent of cases. The
measures applied
usually took the form of educational assistance and placement
in a reform school. No penalty or measure was imposed in 393 cases
(13 per
cent).
662. In 1997, 5,423 disciplinary penalties and 504 educational
measures were imposed on young people of 15 to under 18 years of age,
that is,
an educational measure was imposed on 8 per cent and a disciplinary
penalty on 84 per cent. In 8 per cent of cases, the
penalty was deferred or the
judge refrained from imposing a penalty or measure. The measures which were
applied most frequently
were educational assistance and detention in a reform
school. The most common disciplinary penalties involved work (34 per cent
of
the 5,423 sentences imposed), followed by a fine, suspended or not (26 per
cent), a reprimand (24 per cent) and detention (15
per cent). Most of the
sentences involving deprivation of liberty were suspended sentences of under 30
days. They represented 62
per cent (517 sentences) of the disciplinary
penalties imposed on young people. In 155 cases, the length of detention
exceeded 30
days; of this number 35 were mandatory.
2. Treatment of children deprived of liberty (art. 37 (b) (c) and (d))
(a) The right not to be deprived of liberty unlawfully or arbitrarily
663. The Federal
Constitution states that no person may be deprived of their liberty except in
the cases and in the forms provided for by the law (FC, arts. 31
and 36). In
Switzerland these rights are also guaranteed by various international
instruments, such as the European Convention on
Human Rights as well as the
International Covenant on Civil and Political Rights.
664. As may be
noted from the information presented above concerning possible penalties
applicable to children, deprivation of liberty
is a measure taken as a last
resort.[463]
665. The
specific condition that deprivation of liberty in connection with arrest and
remand in custody must be for as short a time
as possible is covered by a
separate provision of the Federal
Constitution[4] namely,
article 31 (3) which states that any person remanded in custody has the right to
be brought before a judge without delay;
the judge decides whether the person is
to remain in custody or be released. Moreover, every person remanded in custody
has the
right to be tried within a reasonable time.
666. In deciding
whether the duration of custody has exceeded reasonable limits, the
Federal Court takes into account various general
criteria, such as the
difficulty of the investigation and the way in which it was conducted, and the
attitude of the
accused.[465] It is to be
emphasized in this connection that the Federal Court is of the view that, even
when examining authorities cannot in
any way be reproached with being slow,
detention of a duration approximating the penalty likely to be incurred by the
accused cannot
be regarded as
reasonable.[466]
(b) Obligation to treat the child deprived of liberty with humanity and
with the respect due to his or her dignity, separation from adults, the
right to see his or her family and to correspond with it
667. Respect
for and protection of the human dignity of any human being, regardless of his or
her situation, embodied in article 7
of the Federal Constitution, is of special
importance in the context of detention and questioning. These rights establish
the limits to deprivation of liberty
during detention so as to guarantee the
development of the individual. Prison regulations must therefore respect
certain minimum
conditions and make it possible for a prisoner to leave the
prison, to receive visits, to wash, to engage in correspondence, etc.
Human
dignity also implies a guarantee of minimum conditions for personal development,
even in situations such as detention.
668. The right of the child
deprived of liberty to see his or her family and correspond with it is implicit
in the principle of human
dignity. It may also be based on respect for private
and family life, guaranteed by article 13 (1) of the Federal Constitution,
as well as by article 8 of the European Convention on Human
Rights.[467] Recognition
of this right is also required by article 41 (1) (g) of the
Federal Constitution.
(c) Right to legal assistance and the right to challenge the legality of the deprivation of liberty
669. In Switzerland these rights are guaranteed
in domestic law by the Federal Constitution as well as at the international
level by instruments such as the International Covenant on Civil and Political
Rights and the European
Convention on Human Rights (arts. 14 and 6
respectively).
670. As regards the right to legal assistance, every
accused person, whether of or under age, has the right to exercise his or her
means of defence (FC, art. 32 (2)). This right to defence include the
accused’s right to have sufficient time to prepare a
defence in a suitable
manner, to defend oneself, to choose a defence lawyer or, if necessary, to have
an officially designated defence
counsel to question or have questioned
prosecution witnesses and, in certain circumstances, to obtain the services of
an interpreter
free of
charge.[468]
671. It
may be noted that any person lacking the necessary resources is entitled, to the
extent required by the protection of his
or her rights and unless the case
appears to be completely hopeless, free legal assistance (FC, art. 29
(3)).
672. Moreover, any person deprived of liberty without this measure
having being ordered by a court has the right, at any time, to
appeal to the
court which must, as soon as possible, determine whether such deprivation of
liberty is legal (FC, art. 31 (4)).
3. Penalties imposed on minors and in particular prohibition
of capital
punishment and life imprisonment (art. 37
(a))
673. Switzerland has
abolished capital punishment both in time of war as well as in time of peace.
This prohibition in domestic law
is set out in the Federal Constitution as well
as in the Criminal Code and Military Criminal Code. The relevant international
instruments to which Switzerland is a party
include the second Optional Protocol
to the International Covenant on Civil and Political Rights, concerning the
abolition of the
death penalty, as well as Protocol 6 to the European Convention
on Human Rights, also concerning the abolition of the death penalty.
By virtue
of these provisions the death penalty cannot be reintroduced in Switzerland even
in socalled “exceptional”
cases. It may be added that Switzerland
is very actively engaged at the multilateral and bilateral levels in promoting
the universal
abolition of the death penalty.
674. The concept of life
imprisonment is totally absent from Swiss criminal law on minors. The maximum
length of detention is one
year and a sentence of this nature can be imposed
only on minors of over 15 years of age (CP, art. 95).
4. Physical and psychological rehabilitation and social reintegration (art. 39)
675. In accordance with the Federal
Constitution, the Confederation provides the cantons with contributions in
connection with educational establishments for children, adolescents
and young
adults. These contributions are subject to certain conditions, such as the
quality and number of active teachers, the
application of educational and
therapeutic concepts and other quality criteria. In 1999, 189 educational
establishments of this
nature (for about 4,500 minors and young adults) were
recognized and received a contribution of Sw F 72 million in respect of
operating
expenses. These establishments were provided with an additional Sw F
5 million as a contribution to construction costs. Not only
minors and young
adults liable to a criminal sentence, but also children and adolescents showing
signs of social behaviour disorders
and from a family environment which is
unable to provide them with an adequate education and training are
placed in these establishments.
676. Explanations in connection with
this subject are to be found in the commentaries relating to articles 19, 34 and
40 of the Convention.
5. Reservations
677. Switzerland entered a reservation in
respect of article 37 (c) of the Convention to the effect that the separation of
young people
and adults deprived of their liberty is not guaranteed without
exception. However, the new federal bill on the criminal status of
minors
provides for separation in accordance with the Convention both in respect of
detention in custody and deprivation of liberty
as a measure or penalty. The
Government has already announced that this amendment will result in the
withdrawal of the reservation
to article 37
(c).[4] Article 47 of the
bill also states that the cantons have 10 years in which to set up the
establishments necessary for the enforcement
of sentences and measures provided
for under the bill.[470]
The withdrawal of the reservation therefore depends on the speed with which the
cantons do this.
678. Switzerland has also entered reservations in
respect of article 40 of the Convention concerning the guarantee of the
unconditional
right to assistance and separation, where personnel or
organization is concerned, between the examining authority and the sentencing
authority; the exception to the right to appeal criminal sentences where the
person concerned was tried at first instance by the
Federal Court; and the
complete exemption from the payment of costs connected with the assistance of an
interpreter.
679. The federal bill on the criminal status of minors
will entail amendments affecting the reservations to article
40.[471] For example,
article 39 (2) of the bill states that although a young person will be assisted
by a court-appointed lawyer when necessary,
legal assistance will be provided
free of charge only when the young person or his or her parents are unable to
cover its cost.
Withdrawal of the reservation concerning the right to
assistance could therefore be considered at the time the bill enters into
force.[472] However, it
should also be mentioned that Switzerland still understands article 40 (2) (b)
(ii) of the Convention on the Rights
of the Child as requiring the designation
of a court-appointed lawyer not in all cases but only when such legal assistance
is indispensable.
Since at the present time not all requirements are satisfied
by the criminal procedures of the cantons, the reservation is justified.
Furthermore, the unification of criminal procedural law, for which the reform of
the judicial system has created a constitutional
basis and on which preparatory
work has already begun, will include criminal procedure applicable to minors.
Consultation procedure
on a bill on criminal procedure applicable to minors
should begin in 2001. This bill will be based on the Convention and will
involve
the examination of problems raised by the reservations to article
40.
680. Complete separation where personnel or organization is concerned
between the examining authority and the sentencing authority
within the meaning
of the Convention does not correspond to the traditional Swiss concept of
criminal law on minors. Many cantonal
codes of criminal procedure applicable to
young persons countenance the combination of the examining and sentencing
authorities in
the same person so that the child’s requirements can be
evaluated properly. The Federal Court has held that the combination
in one
person of examining and sentencing authority in the framework of criminal
procedure applicable to young persons was not contrary
to article 58 (1) of
the former Federal Constitution and article 6 (1) of the
European Convention on Human
Rights.[473] So far the
European Court of Human Rights has left open the question of whether
article 6 (1) of the European Convention on Human
Rights regulates criminal
procedure applicable to young persons in the same way as that applicable
to adults.[4]
681. As regards the right to appeal any judgement before a higher court,
the cases under federal criminal jurisdiction in accordance
with articles 340
et seq. of the Criminal Code and which are dealt with by the Federal
Court at first instance may certainly be appealed on points of law.
However,
since this may be done only on the basis of procedural irregularities it does
not fully satisfy the requirements of the
Convention. Switzerland has entered a
similar reservation in respect of Covenant II (art 14. (5)); it is not,
however, restricted
to criminal procedure on minors.
682. The law as it stands does not completely exclude the possibility of
minors who have committed offences being brought, by way
of exception, before
the Federal Court at first instance - a situation which would not be
changed by the amendment of the general
part of the Criminal Code and the
Federal Act concerning the criminal status of minors. It should, however, be
noted that the Public
Prosecutor of the Confederation in general refers any case
in which the accused is a child or young person to the appropriate
canton.
683. It is the intention, in the context of the complete
amendment of the Federal Act concerning Judicial
Organization,[4] to
transfer the powers exercised by the Federal Court at first instance to a new
federal criminal court whose judgements could then
be appealed before the
Federal Court. The reservation could thus be withdrawn with the entry into
force of the new federal law on
the Federal Court.
684. Moreover,
Switzerland has formulated an interpretative declaration concerning the
child’s right to the free assistance
of an interpreter (art. 40 (2) (b)
(vi)); under this declaration, this free assistance should not be interpreted as
enabling the
beneficiary to be completely exempt from interpretation costs.
Switzerland has also formulated a similar interpretative declaration
in respect
of the corresponding provision of the International Covenant on Civil and
Political Rights (art. 14 (3) (f)), as well
as article 6 (3) of the European
Convention on Human Rights. In this connection it should be emphasized that
Switzerland withdrew
its reservation to article 6 (3) (e) of the
European Convention on Human Rights in July 2000. The Federal Council will now
examine
whether a withdrawal of the corresponding interpretative declarations in
respect of the Convention on the Rights of the Child and
Convention II is
justified.[4]
C. Children in situations of exploitation, including physical
and
psychological recovery and social reintegration (arts. 32 to
36)
1. Economic exploitation, in particular child labour (art. 32)
(a) Principal applicable enactments
685. Among
the various national enactments, attention should be drawn to the
following:
Federal Act concerning Work in Industry, Crafts and Commerce
(LTr);[4]
Federal Act concerning the Duration of Work (LDT);[478]
Federal Act concerning Accident Insurance (LAA);[479]
Federal Act concerning Maritime Navigation under the Swiss Flag (LNM) and its executing ordinance (Ordinance on Maritime Navigation - ONM);[480]
Federal Act concerning Home Work (LTrD);[481]
Federal Act concerning Vocational Training (LFPr);[482]
Federal Ordinance on Vocational Training in Agriculture (OFPA);[483]
Federal Act concerning the Safety of Technical Installations and Apparatus (LSIT);[484]
Ordinance Limiting the Number of Foreigners (OLE);[485]
Civil Code (CC);[486]
Code of Obligations (CO);[487]
Criminal Code
(CP).[488]
686. It
should also be noted that in Switzerland the greatest possible attention is
given to problems relating to young people who
engage in high-level sports
competition. In close collaboration with all the private and public partners
involved in sport, studies,
guidelines and a “Charter of the rights of the
child in sport” have been formulated. Although these documents have no
binding legal effect, they are respected by the parties
concerned.
687. Among international enactments, mention should be made of
the following:
ILO Minimum Age Convention (No. 138);[489]
ILO Worst Forms of Child Labour Convention (No. 182);[490]
International Covenant on Economic, Social and Cultural
Rights.[491]
688. As
regards international cooperation, since mid-1998 Switzerland has contributed
to, inter alia, two programmes under ILO’s International
Programme for the Elimination of Child Labour (IPEC) in Pakistan. In 1998, it
contributed
Sw F 1 million to the Programme.
(b) Minimum age of employment
689. Under the LTr, LDT, ONM and ILO Convention
No. 138, the minimum age of employment is set at 15 years. This limit applies
to
any job and any sector of activity (industry, crafts, commerce, business
firms, agriculture, horticulture, fisheries, private households,
etc.).
(i) Vocational training
690. As has been explained in the observations
relating to education, in Switzerland the commonest form of vocational training
is
apprenticeship, which is based on a system where the apprentice’s
training is shared between the school and the firm. The
apprenticeship sector
is regulated by the Code of Obligations (title X, chap. 2), the LFPr and the
OFPA. The LFPr defines an apprentice
as “any person aged 15 or over who
has been released from school” (art. 9 (1)). Young people aged
14 may, however, be
employed for a short period on light work undertaken in
accordance with a programme established by the firm or the vocational guidance
services (OLT 1, art. 60 (a)).
(ii) Prohibition of dangerous work
691. The Work Act (LTr) - like the ILO
conventions - contains minimum-age provisions establishing protection against
dangerous work.
It provides, in particular, that the employer must have
due respect for the health of young people and ensure the protection of
morality
(LTr, art. 29 (2)). The OLT 1 establishes a general ban on the
employment of young people under 19 in the various types
of dangerous work
listed in its article 54. These include work on machines or transport equipment
carrying a high risk of accident
or requiring excessive physical effort or
mental tension for young people; work carrying a high risk of fire, explosion or
accident;
the maintenance of machines powered by steam or hot water; servicing
and maintenance of pressurized receptacles; and underground
work in mines or
tunnels. Young people under 18 are also forbidden to serve customers in places
of entertainment such as nightclubs,
dance halls, discotheques and bars (OLT 1,
art. 56 (c)). Other activities, listed in OLT 1, article 55 are forbidden
for young people
under the age of 16, including work carrying a risk of violent
shocks, work involving welding torches and blowlamps, sorting of old
materials,
work involving exposure to great heat or intense cold, and work involving the
lifting, carrying or moving of heavy loads.
692. As regards family
firms, the cantonal and communal authorities for the protection of young people,
and also school authorities,
are required to take the necessary measures in
cases of exploitation of children within the family. These measures apply,
inter alia, to dangerous work within the context of a family firm.
Endangering a child or causing a child physical or mental injury through
dangerous work constitutes a violation of the obligation of assistance incumbent
on parents and may give rise to the immediate imposition
of penalties under the
Civil Code or even the Criminal Code.
693. As to other dangerous work,
the LDT prohibits the employment of young people under 18 in the goods
handling services of public
transport enterprises. The LTrD provides that the
Federal Council shall determine work which may not be performed in the home.
The Ordinance on Home Work (RS 822.311) lists these types of dangerous work
(art. 9).
694. The ILO Worst Forms of Child Labour Convention (No. 182),
which was ratified by Switzerland on 28 June 2000, sets 18 years as
the minimum
age for admission to any work which carries a risk of jeopardizing the health,
safety or morals of adolescents. This
limit is also mentioned in ILO Convention
No. 138.
(iii) Light work
695. The Work Act permits
a lowering of the minimum age for admission to employment (15 years) for
the purpose of certain types of
light work which may be performed as from the
age of 13 (art. 30, supplemented by OLT 1, art. 59). As from the age of
14, young
people may perform undetermined light work. The OLT 1 stipulates that
the health and schooling of children must not suffer as a
result of this work
and that their morals must be safeguarded (art. 60). It should be
emphasized that these provisions are in keeping
with the requirements of ILO
Convention No. 138 (art. 7). The LTr, in article 30 (2), permits the
employment of children under 15
only in the context of cultural, artistic or
sporting events and in publicity activities.
696. The OLT 1 also
regulates the duration of work and the conditions of employment of children
under 15. These children may be employed
for a maximum of two hours per school
day and nine hours a week. During holiday periods, they may be employed only
during half of
holidays of over three weeks, and for a maximum of 8 hours a day
and 40 hours a week. The daily rest period must be at least 12
consecutive
hours. Night work and work on Sundays or public holidays are
forbidden.
697. The LTr nevertheless permits the regular employment of
children under 15 who have been released from compulsory schooling (art.
30 (3)). The employment of such children is subject to authorization in
all cantons. Issue of an authorization is subject to the
condition that the
young person should be in good health, that the work does not risk endangering
his or her health and that his
or her morals will be protected (OLT 1, art. 61
(3)). In practice, as has been seen above, little use is made of this provision
since almost all children of 15 still attend school.
698. Occasional work
done by young people in order to earn some pocket money (e.g. babysitting
or occasional sale of newspapers) is
not considered as work proper in
Switzerland. This approach is also adopted in the decisions of the ILO
supervisory bodies. In
addition, the LTr authorizes light work for young
people over the age of 13 (art. 30 (2)).
699. As regards artistic
activities within the meaning of OLT 1 (art. 56), it is forbidden to employ
young people under 16 in cinematographic
enterprises, circuses and entertainment
companies. The State Secretariat for Economic Affairs, and in particular its
Labour Department,
in its capacity as the body responsible for the high-level
supervision and performance of the LTr, may nevertheless authorize derogations
from this article when this is justified by pressing reasons, though only for
certain qualified or semi-qualified occupations. The
authorizations may be
subject to special conditions intended to protect young people (OLT 1, art.
57).
(iv) Domestic work
700. According to the
1990 census, there were some 25,000 people performing domestic work in
Switzerland. The situation of domestic
workers from abroad is regulated by
article 9 of the OLE: the grant of a work permit is dependent on compliance
with the normal
local conditions of employment, including the provisions of the
LTr relating to minimum age. In practice, the authorities supervising
enforcement of the OLE do not issue a labour permit to persons under the age of
18. Young foreign nationals of both sexes employed
as au pairs can obtain work
permits from the cantonal authorities, but only from the age of 17 (OLE, art. 20
(1) (b)).
701. Private domestic servants of members of foreign missions
and international officials are not subject to the OLE (art. 4 (1)
(d)).[492] The DFAE has
issued specific guidelines in this respect, setting at 18 the minimum age for
admission to this type of employment.
It will issue a residence permit for them
only if these conditions are complied with.
(c) Control mechanisms
702. In Switzerland, the
inspection machinery operates as follows: employers are required first to
comply with the provisions of
the laws relating to working conditions and the
protection of employees. It is the responsibility of the State to ensure
implementation
of the international
conventions and national legislation.
And it is the labour inspectorate which, by making visits to enterprises subject
to the LTr,
checks whether the LTr’s provisions, and notably those
relating to young employees, are being complied with in the enterprise
in
question.
703. The revision of the LTr was initiated at the time of
ratification of ILO Convention No. 138 and has made it possible to extend
the provisions of the law on minimum age to sectors hitherto excluded, i.e.
agriculture, horticulture, fisheries and private households.
704. In the
sectors of agriculture and horticulture, the Agricultural Accident Prevention
Service is responsible for supervising the
minimum-age provisions in agriculture
and horticulture. In addition, it regularly inspects all places where
apprenticeship takes
place in agriculture and issues authorizations to persons
training apprentices.
705. Inspection in the fisheries sector is
undertaken by the bodies competent for enforcement of the LTr, in response to
complaints.
This practice is sufficient, given the fact there are now only
about 300 professional fishermen in Switzerland and nearly all of
them work in
family firms.
706. There is growing criticism of cases of excessive work
for certain children within their family. These cases are not covered
by Swiss
legislation on the protection of employees. These violations of parental
authority fall under the Civil Code and must be
combated pursuant to the
relevant provisions of the Civil Code and the Criminal Code.
707. Private
households are subject to the relevant minimum-age provisions of the LTr,
firstly for reasons relating to protection
of the personality of the child. The
LTr supervisory bodies intervene only in response to complaints. The principle
of proportionality
is thus respected by weighing the protection of private
activity against protection of the personality of the child.
708. In the
case of the private domestic servants of members of foreign missions and
international officials, supervisory possibilities
are limited by the privileges
and immunities which employers enjoy under the Vienna Convention on
Diplomatic Relations
of 18 April
1961,[4]
the Vienna Convention on Consular Relations of 24 April
1963,[494] and the
headquarters agreements concluded by the Government with the international
organizations based in Switzerland. These international
treaties guarantee the
inviolability of the home of this type of employer and grant him or her
immunities relating to jurisdiction
and enforcement. The Swiss authorities may
admittedly make inspections or take administrative measures such as imposing
fines, but
they encounter difficulties when trying to enforce these
measures.
709. Nevertheless, the DFAE ensures compliance with the
guidelines it has issued on this subject. It refuses any request for employment
of a private domestic servant if the latter has not reached the age of 18. If
it learns that a member of a foreign mission or international
official has
brought from abroad a private domestic servant without its authorization, it
requires the employer committing the violation
to repatriate, at his or her own
expense, the servant to his or her country of origin. It also requires that
employment should be
terminated in the case of a person employed in Switzerland
who does not fulfil the conditions laid down in the relevant
guidelines. It may also take certain measures vis-à-vis the employer
such as forbidding the employment of another private
domestic servant. In
particularly serious cases, it may even go as far as asking the employer
committing the violation to leave
the country.
2. Use of narcotic drugs (art. 33)
(a) Drugs
710. According
to a survey of schoolchildren aged 15 and 16 conducted
in 1994,[495] 20 per cent
of girls and 26 per cent of boys had taken cannabis at least once.
Seven per cent of girls and 10 per cent of boys had
taken amphetamines at
least once. There had been a sharp increase in relation to the findings of
a 1986 survey.
711. According to a study conducted in April 1998 by the
Swiss Institute for the Prevention of Alcoholism and Other Forms of Drug
Addiction (ISPA) covering 1,019 persons between the ages of 15 and 30, 5.3 per
cent stated that they had taken ecstasy at least once
and 2.7 per cent
said they had taken it during the past 12 months. There were more male users
(69 per cent) of ecstasy than female
(31 per cent). Most
users (79 per cent) were aged 19 or 20. This is a
“fashionrelated” type of drug and ecstasy consumption
is currently
declining slightly. In order to reduce ecstasy consumption, many cantons have
drawn up guidelines intended for “ravers”
and many prevention
services distribute information material to drug users.
712. Concerned
about the increase in problems relating to drug addiction, the Government
decided, in 1991, to substantially strengthen
its commitment in this respect.
It is pursuing a drugs policy aimed at preventing the harmful effects of abuse
on four fronts (four-pillar
policy): prevention, therapy, reduction of risks
and assistance with survival, enforcement and control.
713. Prevention in
general is primarily the responsibility of the cantons and the communes,
as required by the Federal Act concerning
Narcotic Drugs and Psychotropic
Substances
of 3 October 1951.[496]
A total of Sw F 30-35 million is spent annually on the prevention of addiction.
In the face of the growing seriousness of drug problems,
the Government adopted,
in 1991, a series of measures which have enabled numerous projects to be
undertaken in schools, institutions
and youth organizations and for foreigners.
These projects have been carried out in close cooperation with the cantons,
communes
and private organizations. In addition, since 1991, the
Confederation has been conducting an awareness-raising campaign which is
intended to strengthen the commitment of all persons to prevention on a daily
basis. The various measures aimed at reducing drug-related
problems have made
it possible to continue support for certain projects in the long term and to
undertake new projects. The Confederation
is also conducting campaigns by means
of posters, television announcements and advertisements aimed at increasing
public awareness
as a whole of the problems of dependency and drug addiction.
Through accurate information, it will be possible to increase objectivity
in
tackling problems relating to drugs and dependency and to combat prejudice.
Another aim is to encourage dialogue on these problems.
The Confederation
spends Sw F 2 million a year on this campaign.
714. As regards
prevention for the benefit of young people, in the area of education, the
Federal Office of Public Health (OFSP) and
the Conference of Cantonal Directors
of Education have set up the “Health in schools”
programme.[497] The
Confederation intends to support to the full extent of its resources the
efforts made by the school as a place of learning and
establishment of
behaviour favourable to health. An experimental programme of research on
prevention was launched in 15 towns in
1999 in order to verify the effectiveness
of intensive, early socioeducational action with respect to teenagers who were
becoming
problematic drug users. The main approaches used are the integration
of action within the structures of everyday life (family, school,
apprenticeship, sport and leisure) and recourse to various services (youth
counselling, child psychiatry, social assistance, etc.).
The research is
conceived as a study which will, for the first time in Switzerland, elicit data
concerning the behaviour patterns
of young people over several years. With a
view to promoting the training of parents, the Confederation and the Pro
Juventute Foundation
have updated a brochure entitled “My child too?
Parents’ questions about drugs and addiction” and have translated
it
into several languages. For the purposes of the prevention of drug addiction in
youth organizations, the OFSP is cooperating
closely with the Swiss Youth
Activities Council and the Federal Sports College at Macolin. The most
important projects are “Drugs
or sport?” and “Voilà -
prevention of drug addiction in youth organizations”. Between 1993 and
1996, a
total of 42,391 children and young people participated in activities
supported by “Voilà”. For the purposes of
prevention in
residential educational institutions, the OFSP is cooperating with the Swiss
Association for Maladjusted Young People
and the Swiss Professional Association
for Specialized Education and Teaching in the context of a programme known as
“Le fil
rouge” (duration 1994-2001). Another project is to be
undertaken jointly with the youth courts.
715. All the cantons practise
systematic prevention against drugs, and this is included in school curricula
and is often treated on
a broader
basis.[498] The focus is
on the higher classes, where students often participate in multidisciplinary
course projects, seminars and week-long
courses entirely devoted to health
matters. In this context, students have the possibility of cooperating
regularly with the school
medical services, the cantonal and regional addiction
prevention services, private associations, etc. These technically competent
services also play an important role in the further training of teachers.
Subjects such as self-respect, self-discipline, communication,
conflict
resolution and similar topics constitute the essential features of prevention
efforts undertaken by all the cantons at different
educational levels. The
cantonal expert commissions and addiction prevention services working in the
field in the various cantons
and regions do not limit their action to schools
alone. They also deal, obviously, with other population groups such as parents,
associations, leisure and district associations, young foreigners, young women,
risk groups, etc. Projects, brochures and, in particular,
documents are
specially prepared for this purpose.
716. Lastly, in the context of the
treatment of drug addicts, the Confederation favours the establishment of
specialized programmes
intended for addicted parents, including care for
their children, and other programmes intended for young drug users. The
therapies
available for young drug addicts in Switzerland are essentially
oriented towards the halting of drug abuse and the maintenance of
social
integration. Therapy is mostly organized through mobile specialized
consultation in all regions and may or may not include
the prescription of
methadone for a short period. There are also a number of residential
treatment institutions intended specifically
for young addicts, and notably
crisis treatment centres (short-term) and semiresidential programmes, which
enable vocational training
to be undertaken outside
the institution.
717. As regards treatment comprising prescription
of heroin, the following conditions must be met for the drug addict to be
admitted
to such treatment:
(a) The addict must have been dependent on
heroin for at least two years;
(b) He or she must be aged at least
18;
(c) He or she must have made at least two unsuccessful attempts
through another recognized therapy (mobile or residential) or his
or her
condition must not permit any other treatment; and
(d) He or she must
present medical, psychological and/or social deficiencies attributable to drug
use.
718. Exceptionally, when this is justified, notably in the case of a
serious physical or mental illness excluding treatment based
on other methods, a
person who does not meet these conditions may be admitted to treatment
comprising prescription of heroin.
719. In view of the conditions laid
down, heroin prescription programmes are applied only for somewhat older
persons. The recorded
average age of patients is over
31.
720. Switzerland is a party to various international conventions
applicable in the area of drugs: since 1968 it has been a party
to
the 1961 Single Convention on Narcotic
Drugs.[499]
In April 1996, it acceded to the Protocol of 24 March
1972[500] amending the 1961
Convention and to the Convention on Psychotropic Substances of 21 February
1971.[501]
721. Switzerland
cooperates with the International Narcotics Control Board, the
United Nations International Drug Control Programme
and other United
Nations agencies specializing in drugrelated questions (WHO, UNESCO, etc.). In
addition, Switzerland is a full
member of the United Nations Commission on
Narcotic Drugs and the Cooperation Group to Combat Drug Abuse and Illicit
Trafficking
in Drugs (Pompidou Group) of the Council
of Europe.
722. Drug-related enforcement is based on the Narcotic
Drugs Act. Under this Act, any person who unlawfully manufactures, sells,
consumes or imports narcotic drugs or psychotropic substances is liable to
prosecution. The main purposes of drug-related enforcement
are to reduce the
supply of drugs, reduce the number of new users, punish drug-related offences,
and combat drug trafficking and
the illegal financial operations and organized
crime which are encouraged by such trafficking.
723. Thus, as regards the
specific measures taken in Switzerland to combat drug-related crime, police
action has hitherto been mainly
geared to the repression of consumption. It has
included the prevention of open drug scenes, raids and the denunciation of drug
users. However, the cantons are increasingly orienting their efforts towards
combating drug trafficking and economic crime specific
to drugs (money
laundering).[502] The
profits made every year in Switzerland through drug trafficking have been
estimated at Sw F 2.5 billion. At the federal level,
the central
departments of the Federal Police Office (OFP) are active. In conjunction
with several cantons, the OFP runs a databank on drug trafficking
(DOSIS), which
is used for criminal inquiries into this practice. There is also the
computerized police search system known as RIPOL.
In addition, a federal bill
relating to secret investigation is under
preparation.[503]
724. Drug
use represents a type of behaviour which is harmful primarily for the user.
Convictions for such behaviour are not usual
under Swiss criminal legislation.
Thus, suicide attempts are not punished. The prohibition and punishment of drug
use, which was
introduced in 1975 in the Narcotic Drugs Act, is based on
the idea that it is the role of criminal law to strengthen fundamental
socio-ethical values. Thus, the Narcotic Drugs Act provides for arrests or
fines for illegal drug use. In minor cases, the competent
authority may suspend
the procedure or renounce any penalties. It may also issue a reprimand or an
equivalent measure. In these
cases, the so-called principle of appropriateness
is applied, whereby prosecution of an offence may be dropped when important
social
interests are at stake, for example the social reintegration of a young
drug addict. Judges often order various measures in addition
to suspended terms
of imprisonment, which the addict does not have to serve if he or she maintains
good conduct for a trial period
of at least two years. One measure frequently
ordered is the obligation on the addict to follow a course of treatment. If the
addict
does not follow the treatment ordered by the judge or if he or she lapses
back into drug-taking, the penalty then becomes inevitable
in most cases. In
cases involving serious offences or a previous criminal record, the judge may
order a nonsuspended prison sentence.
He or she may, however, defer execution
of the sentence and order an alternative measure in the form of mobile or
residential treatment.
725. On the other hand, anyone engaging in drug
trafficking is liable to imprisonment or a fine. In serious cases, the penalty
will
be rigorous imprisonment or ordinary imprisonment for at least one year; it
may be combined with a fine of up to Sw F 1 million.
A case is serious when the
perpetrator:
Knows or cannot be unaware that the offence involves a quantity of drugs which may endanger the health of numerous persons;
Acts as a member of a gang organized in order to engage in unlawful trafficking in drugs;
Engages in trafficking as a livelihood and thus realizes a substantial
turnover or income.
726. In order to combat drug trafficking, the Drugs
Section of the central Federal Police Office is in permanent contact with the
police organizations of other countries, whether or not the countries are drug
producers. Information is exchanged and, on the basis
of international treaties
providing for mutual judicial assistance, the various countries collaborate in
action to combat drug-related
crime.
727. It should emphasized that the
overall efforts to combat the supply of drugs are also aimed at protecting
children and young people.
728. The Narcotic Drugs Act is currently
undergoing revision, the purpose of which is to decriminalize the ordinary
consumption of
drugs while protecting young people.
(b) Alcohol
729. Eight per cent of children aged 11 to 16
drink beer at least once a week, 2 per cent drink wine at least once a
week, 3 per cent
drink spirits and 4 per cent drink aperitifs.
Roughly 3 per cent drink alcohol every day, and 4 per cent of this age
group regularly
get
drunk.[504]
730. Alcohol
consumption has grown mainly among girls, whereas among boys it has remained at
practically the same level or even declined
slightly.[505] The number
of girls consuming alcohol every week has more than doubled over the past
12 years (from 8.5 per cent to 17.4 per cent).
Although, generally speaking,
schoolchildren do not drink more alcohol than previously, when they get
drunk they consume larger
quantities. Thus, the number of cases of
drunkenness has steadily grown. In the two months preceding the inquiry, there
was one
15year-old schoolboy out of three who had already been drunk at least
once. In the case of girls, this proportion was more than
one out of five.
The alcoholic drink preferred by boys is, as before, beer, which now comes
only slightly ahead of the so-called
“alcopops”. Among girls, sweet
alcopops have already overtaken beer. Less wine is drunk by girls and
boys.
731. As regards legislation on alcohol, comprehensive restrictive
legislation exists at the federal level in respect of
spirits.[506] Demand is
reduced essentially by the imposition of high taxes on all spirits. Alcoholic
drinks obtained through fermentation, such
as wine, beer and cider, account for
over 80 per cent of total alcohol consumption. Federal regulations concerning
all alcoholic
drinks are in fact contained in the Ordinance on Foodstuffs (ODAI)
and in the provisions of the Criminal Code which aim at the protection
of young
people, or in the criminal measures provided for by road traffic legislation
concerning drunken driving.
732. The advertising of alcoholic drinks is
limited; no advertising is allowed on television or radio or at events intended
for children
or
teenagers.[5] In addition,
under article 24 of the
ODAI,[508] any advertising
of alcoholic drinks specially addressed to young people under the age of 18 and
intended to encourage them to consume
alcohol is forbidden. The ODAI determines
what kind of advertising is forbidden and where. In addition, no distilled
drinks may
be sold to young people under the age of
18.[509] In the case of
alcoholic drinks obtained through fermentation, the ban on sales is established
by cantonal legislation and the age
limit is generally set at
16.[5]
733. In order
to reinforce measures to combat alcoholism, the OFSP and the Federal
Authority on Alcohol (RFA), in conjunction with
the ISPA, launched at the
beginning of 1999 the “Ça débouche sur quoi?”
programme for the prevention of
alcohol-related problems. This information
programme on risk-free alcohol consumption is initially limited to the
period 19992002.
As far as possible, activities will be coordinated with
those of other private organizations and the cantons. The programme will
include an information campaign, brochures and teaching material, together with
individual consultations for persons at risk given
by health
specialists.
734. Recently problems have arisen in relation to the new fashionable drinks
for young people: during the past three years or so,
“soft” drinks
with an alcohol content of 4 to 5 per cent intended for young people have become
fashionable. Initially,
these drinks clearly contained distilled alcohol and,
subsequently, fermented alcohol. The federal authorities have found themselves
obliged to act, and the following measures have been taken:
These mixed drinks have been made subject to the Lalc in two stages. The “premix” drinks, which the RFA defines as drinks containing spirits, have been subject to the Lalc since February 1997. The RFA decided to make “alcopops” subject to the Lalc as from 1 December 1997. It defines alcopops as being in general a mixture of lemonade and ethyl alcohol, without distinguishing the method of production. These drinks have therefore become less accessible to young people. In addition to the ban on sales to persons under 18, which applies all over Switzerland, these drinks are more expensive and are now subject to the same advertising restrictions as spirits;
Conferences with the cantonal executing authorities are organized in order to ensure more effective compliance with the provisions concerning the protection of young people in matters relating to alcohol. For a long time now, studies have shown that compliance with the provisions intended to protect young people against alcohol abuse has been sketchy;
Training of retailers and restaurant-owners is organized in order that these people may teach their staff about the problem of alcohol consumption by young people;
Efforts are currently being made to incorporate in the ODAI the obligation to
include on the alcopop label the alcohol content and
warnings about the ban on
the sale of alcohol to persons under 16, and the obligation to separate alcopops
from soft drinks.
(c) Tobacco
735. Thirty-three per cent of the population in
Switzerland is addicted to smoking. In the 1997 Swiss survey on health
(made public
end-November 1998) a large increase was observed in the number of
young people smoking; whereas in 1992, at the time of the previous
health
survey, 23 per cent of young people between the ages of 15 and 19 were smoking,
by 1997 the figure had risen to 40 per cent.
It was also noted that young girls
no longer differed from boys in this, as they did in 1992: the proportion of
girls in that age
range who smoked had increased from 18 to 39 per cent and that
of boys from 29 to 41 per cent.
736. There are several reasons for this
considerable rise in the consumption of tobacco among young people:
People are in general more open to the consumption of psychoactive substances (cannabis or cocaine, for example);
Young people are influenced by the messages and values employed in tobacco advertising;
Society has become more permissive;
Smoking helps young people to find their identity and strengthens their sense of belonging to a group;
The fear of unemployment and a general uncertainty about the future may lead
young people to smoke to try to look more sure of
themselves.
737. Preventive measures thus need to be reinforced. As part
of the “Swiss network of healthpromoting schools”, for the
year 1999
about a hundred schools have committed themselves to becoming tobacco-free
zones. Roughly 30,000 schoolchildren are involved
in
this project.
738. There is no legislation defining the minimum age
for access to tobacco products. Tobacco advertising is prohibited on television
and on radio.[511] Tobacco
advertising is also banned when it is specifically directed at young people
(that is, those under 18), especially in places
mainly frequented by young
people, in magazines chiefly aimed at them, on free gifts that are offered them
(T-shirts, caps, balls
etc.), or at cultural or sports events principally
attended by them. Handing out samples to young people under 18 is also
forbidden.
The implementation of this law raises several problems, particularly
the difficulty of proving that the advertising is mainly directed
at those under
18.
739. To tackle the issue of tobacco addiction and as a preventive
measure, on 16 August 1995 the Federal Council adopted a comprehensive
programme
for dealing with all the health problems linked to tobacco consumption. The
programme is based on recommendations made
by WHO, the European Union and the
Federal Commission on tobacco-related problems, and is described as
“comprehensive”
because it attempts action at one and the same time
in several areas. It has three priorities:
Reinforcing primary prevention, in order particularly to reverse the trend towards increased tobacco consumption among young people between 11 and 18 years of age;
Developing protection for non-smokers;
Helping people to lose the habit of smoking.
740. Prevention aimed at
young people takes several forms:
General information (in schools or sports centres, for example);
Sponsorship: getting an attractive health message across by means of positive promotional activities (no bans);
Helping young people specifically to lose their smoking habit.
741. One concrete measure is the programme “New pleasure - tobacco
free” that was launched nationwide in 1992. Geared
to young people
between 14 and 18 years of age, the campaign takes a resolutely positive
approach that emphasizes tolerance. It
is in the spotlight
at youthoriented sports events (mountain-biking, skateboarding, street
parades, discos etc.). In 1997 two thirds
of the target population knew of
the campaign and a majority found it persuasive.
742. Finally, it should
be noted that in May 1998 the Federal Department of Home Affairs appointed a new
Federal Commission to prevent
tobacco addiction, composed solely of
representatives in the area of prevention. Its role is to advise the Department
on all issues
related to tobacco addiction and strategies for its
prevention.
(d) Other forms of dependency
743. A study of pharmaceutical drug dependency
was carried out using 16,554 pupils at Swiss schools, and the results in
1994 for children
from 11 to 16 were as follows: over the previous 30
days, 44 per cent of boys and 30.2 per cent of girls had taken no
medicines,
30 per cent and 34.6 per cent respectively had taken
medicine once and 25.6 per cent and 35.2 per cent had taken medicine several
times. During that period more than 11 per cent had taken painkillers several
times and nearly 4 per cent had taken sleeping pills.
No specific measures were
adopted, since the pharmaceutical drug market is extensively regulated,
medicines being, in principle,
only available on prescription and in any case
obtainable only in pharmacies.
3. Sexual exploitation and sexual abuse (art. 34)
744. On the subject of offences against sexual
integrity and their prevention, the reader is referred to the commentary
relating to
article 19.
(a) Criminal law provisions
745. The specific provisions governing the
protection of children and minors (CP, arts. 187 and 188) and the
articles concerning the
violation of sexual freedom and sexual honour
(CP, arts. 189191) apply, whether the offender is a member of the
family or someone
outside it.[512]
746. In
accordance with article 195 of the Criminal Code - inducement to prostitution -
anyone who drives a minor into prostitution
is liable to punishment. Under
article 196 - traffic in persons - anyone who, to satisfy others’ desires,
traffics in human
beings is equally liable.
747. Child pornography is
considered “hard-core” pornography; as such it is prohibited by the
Criminal Code. Article
197, paragraph 3, of the Code provides for an absolute
prohibition of hard-core pornography, including acts of a sexual nature with
children. Thus a punishment of imprisonment or a fine is (art. 197, para. 3)
imposed on anyone who makes, imports, stores, circulates,
promotes, exhibits,
offers, shows, provides access to or makes available pornographic objects or
representations which have as their
content acts of a sexual nature with
children, animals or human excrement or include acts of violence. A draft
revision is under
consideration to make it possible to punish the acquisition
and simple possession of hard-core pornography.
748. Finally, the revised
draft of the general part of the Criminal Code contains a new
article 5 - already examined and slightly
amended by the upper chamber
of Parliament (the Senate) - which would create the legal basis for the
prosecution in Switzerland of
persons guilty of serious sexual offences
committed abroad against minors, regardless of the foreign law. In relation to
such acts
the draft eliminates two requirements: that of dual criminality, on
the one hand, and that of deferring to the possibly more favourable
law,
applicable at the place where the offence was committed, on the other. The
offender would, moreover, be prosecuted without
regard to his or her
nationality, so long as he or she was in Switzerland and was not
extradited.
749. It should however be stressed that it is when the
evidence must be produced that the chief obstacles arise in the prosecution
of
offences committed abroad; this is particularly true when the offences in
question are not punishable in the country where they
have been committed,
because the State concerned does not then feel in any way obliged to offer
judicial cooperation.
750. Mention should be made here of the fact that
Switzerland participates actively, within the Council of Europe, in the
work of
the Committee of Experts on crime on the Internet.
The Committee’s mandate is to consider, in particular, activities
that
contravene the laws on the protection of minors and to draft a binding
legal instrument in the light of the Recommendation on computer-related
crime[513] and the
Recommendation[514]
concerning problems of criminal procedural law connected with information
technology.[515]
(b) Statistics
751. In 1996 there were eight convictions in Switzerland for “inducement to prostitution” (CP, art. 195).
752. For trafficking in persons (not limited to children) there were four convictions in 1996, whereas previously no crime of that nature had been recorded for many years.
753. From
1993 to 1996 convictions for sexual acts with a pornographic connection
involving children (CP, art. 187, in relation to
CP, art. 197; not only cases of
exploitation of children) practically doubled, from 17 to 30. From 1993 the
first full year after
the entry into force of the new provisions on sex-related
crime, to 1996 the number of convictions for pornography (CP, art. 197)
rose from 60 to 272.
(c) Sources of child prostitution and other forms of exploitation of children
754. Child prostitution and other forms of
exploitation of children often seem to be linked to drug
addiction.[516] It is
already, in part, in schools that information is provided on sexual abuse,
maltreatment of children and drug addiction and
that the prevention of those
crimes takes place. The work done by the Federal Office of Public Health and,
in particular, its campaigns
to prevent drug addiction are of note
here.
755. Poverty is also often cited as a cause of child prostitution
and the exploitation of children in general. This does not usually
seem to be
the case in
Switzerland[517] in view of
its social insurance system, its public assistance and its family policy
measures.[518]
(d) Prevention and initiatives
756. Switzerland is unremitting in its active
concern (particularly in the United Nations and the Council of Europe) with the
serious
problem of sex tourism. The Federal Bureau for Equality between Women
and Men within the Federal Department of Home Affairs has
the task of making
those concerned aware of the problem. For some years now tourist agency
advertising has not carried the kind
of incitements or even simple allusions
likely to attract those tempted by sex tourism; the same is true of tourist
guides sold in
bookshops.
757. In July 1998 the Federal Police Office
group of experts on traffic in persons issued a first report entitled
“Paedophilia
in Switzerland”.
758. The association against
the sexual exploitation of children for commercial purposes Arge Kipro is
the Swiss branch of ECPAT.
It combats sex tourism, particularly when Swiss
nationals abuse children abroad. It publishes a regular information bulletin of
news on this subject and works to provide information nationally and
internationally. Arge Kipro was set up by several private associations
at the
end of the 1991/92 Swiss campaign against child prostitution in the third world
and sex tourism. It receives a subsidy from
the Confederation.
759. In
1998 some 80 Swiss and foreign experts attended a symposium held on the
initiative of Arge Kipro and the Swiss Committee for
UNICEF to debate Swiss
extraterritorial legislation on the sexual exploitation of children for
commercial purposes, the legal principles
governing the issue and how to reflect
them in the laws. Cooperation between the authorities and NGOs and new
strategies to be adopted
in the fight against this problem were also on the
agenda.
760. The Swiss Olympic Association and the Macolin Federal Sports
College deal with issues of sexual exploitation and violence in
sport.
They examine varied forms of training and intervention as well as the creation
of consultation services for those affected.
In 1997 the Swiss Association
for the Protection of Children (ASPE), which is supported by the central unit
for family matters in
the Federal Office for Social Insurance (OFAS), launched a
project intended to help to prevent the ill-treatment and abuse suffered
by
children in sports associations.
761. The private organizations
mentioned below deal with the issues stated.
762. The International
Committee for Child Dignity is heavily involved, in Switzerland and abroad, in
combating the different forms
of sexual exploitation of children for commercial
purposes.
763. The International Social Service, which has ties with 120
countries, has among its aims the protection of children and families
split
between Switzerland and abroad. It is, in particular, active in cases of
international abduction of children, protection measures
for maltreated
children, the exercise of parental rights, and international adoptions. The
Service tries to emphasize mediation and dialogue among
the persons involved.
It receives a subsidy from the Confederation.
764. The Defence for
Children International Movement also works in this area, as does the Information
Centre for Women of the Third
World, to which the Confederation grants a
subsidy.
(e) Study on the sexual exploitation of children for
commercial purposes in Switzerland
765. In March 1999
the results of initial research on the sexual exploitation of children for
commercial purposes in Switzerland (largely
funded by the Federal Office for
Social Insurance and the Federal Office of Public Health) were published. The
study, by the private
organization Arge Kipro, concerns 60 individual cases and
was carried out mainly in interviews. It is qualitative research; no indication
is given of the number of cases in Switzerland, since the statistical data are
lacking. According to the definition used in the
study, sexual exploitation for
commercial purposes occurs when the exploiters obtain a profit going beyond the
direct, personal action
of the child, when the child’s services are paid
for, when a material recompense is promised him or her or when the children
themselves obtain material profit from their services.
766. The study
demonstrates that the children and young people concerned are confronted with
very complex situations. The forms of
sexual exploitation for commercial
purposes range from exploitation within the family or the immediate social
environment to occasional
prostitution to obtain drugs, street prostitution or
child pornography and to detaining young people in brothels, which is similar
to
slavery. According to the study, girls and boys are affected in equal
numbers.
767. The research shows that in Switzerland the sexual
exploitation of children for commercial purposes takes place mainly in private
and in the immediate social environment. There is very little information on
traffic in children, which is part of the paedo-sexual
scene. Street
prostitution involving young girls does not reveal any clearly organized
structure.
768. For purposes of prevention, basic and ongoing training
needs to be organized for parents and educators. Schools should inculcate
notions of self-esteem and self-confidence, promote the development of the
personality and strengthen the sense of right and justice
among children. With
regard to intervention, the study advocates reception centre services geared to
the specific needs of the children
concerned.
4. Abduction or sale of or traffic in children (art. 35)
769. Reference should be made here to the
considerations expressed in the observations relating to articles 11 and 21 of
the Convention.
770. Article 196 of the Criminal Code makes traffic in
persons a criminal offence. This provision takes account of the conventions
ratified by Switzerland on the
matter.[519] It states
that anyone who, to satisfy the desires of others, traffics in persons shall be
punished by rigorous or ordinary imprisonment
of at least six months. The acts
preparatory to the trafficking carry a maximum penalty of five years’
rigorous imprisonment
or ordinary imprisonment
(art. 196, para. 2). Article 183 of the Criminal Code
(kidnapping and abduction) also applies to cases
of traffic in persons and
provides for a penalty of five years’ rigorous
imprisonment.
771. To date only a few rare cases of trading in children
for purposes of sexual exploitation have been known in Switzerland. In
May 2000
the Government decided to set up an interdepartmental working group on traffic
in persons.
772. Switzerland is increasingly active on the international
scene in regard to the sale and abduction of and traffic in persons.
Multilaterally it is working within the International Organization for Migration
(IOM) and the Organization for Security and Cooperation
in Europe. Within the
United Nations it took an active part in the work of drafting the Optional
Protocol to the Convention on the
Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography, which it signed in September 2000. In
general,
it also supports the mandate of the Commission on Human Rights Special
Rapporteur on the sale of children, child prostitution and
child pornography by
co-sponsoring Commission resolutions concerning her activities and providing her
with information relevant to
her mandate.
5. Other forms of exploitation (art. 36)
773. Reference is made to the observations
concerning articles 32 to 35 of the Convention.
D. Children belonging to a minority (art. 30)
774. Switzerland, which has within its
territory communities differing from one another in language, culture or
religion, often appears
a model of coexistence among distinct populations.
Indeed, thanks to its federal system, it does offer its national minorities a
political and administrative autonomy that enables them to develop and preserve
their respective languages, religions and cultures.
At the same time the
federal system ensures their participation and representation within national
institutions. Switzerland is
convinced that protecting persons belonging to
national minorities helps to ensure their peaceful coexistence and makes
democracy
work.
775. For these reasons in Switzerland the protection of
persons belonging to a minority is enshrined in the Federal Constitution, both
in its preamble, which speaks of the diversity of the Swiss people and the
consequent duty to respect one another, and in the
provisions on languages,
cultures and religions, as well as in those on institutions. At the
international level, Switzerland is
a party to the Framework Convention of the
Council of Europe for the Protection of National Minorities and the European
Charter for
Regional or Minority Languages. It is involved in a number of
activities internationally to develop the protection of minorities
and in
particular it participates actively in the United Nations Working Groups on
Minorities and on Indigenous Populations.
776. According to surveys
carried out by the OFS in 1990, children in Switzerland spoke the following
national languages: 64.1 per
cent, German; 20.5 per cent, French; 6.3 per cent,
Italian; and 0.5 per cent, Romansh. In 1990, 47.2 per cent of children
were Roman
Catholics
and 37.9 per cent were
Protestants.[520] Out of
the 1,399,011 children counted in the country in 1990, 1,132,942 were of
Swiss nationality. In other words, about 20 per
cent of the children living in
Switzerland were of foreign
nationality.[521]
1. Status of languages in Switzerland
777. Recognition of the multilingual character
of Switzerland and the maintenance of linguistic communities are a component of
our
national identity and also a constituent element of our theory of the State
and of the political culture of Switzerland.
778. The official
languages of the Confederation are German, French and Italian, as well as
Romansh for the Confederation in its dealings
with Romansh citizens (FC, art.
70).[522]
779. The
cantons decide on their official languages. In order to preserve harmony among
the linguistic communities they must take
care to maintain the traditional
territorial distribution of the languages and take linguistic minorities into
consideration.[523] The
great majority of the cantons have only one official language. Four cantons
have, however, chosen to have more than one. Three
- Bern, Fribourg and Valais
- are bilingual, whereas the canton of Graübunden is
trilingual.
780. In agreement with the cantons, the Confederation assumes
other important tasks concerning the promotion of the national languages,
in
particular encouraging understanding and interaction among the national
linguistic
communities.[524] Drafts
are being prepared along these lines, for example the draft law on the use of
official languages by the authorities of the
Confederation and its
administrative bodies both among themselves and in their dealings with the
public and the cantonal authorities,
and the draft law on the promotion of
understanding and interaction among the linguistic
communities.[525]
781. The Confederation is furthermore empowered to support measures
adopted by the cantons of Graübunden and Ticino in favour
of the minority
languages Romansh and Italian. This has been done by means of measures
contained in the Federal Act concerning Financial
Assistance to Safeguard and
Promote the Romansh and Italian Languages and
Cultures.[526]
782. In
relations among individuals freedom of language (FC, art. 18) guarantees the use
of the language of one’s choice, including
dialects, where either national
or foreign languages are concerned. In relations between individuals and public
authorities, it
is the official language that comes into play.
783. As a
result of the way languages are regulated in Switzerland, a child may, in
private, express him or herself in the language
of his or her group. In
dealings with the authorities, the language used will be the official language
of the canton. Where the
canton has more than one official language, the child
may choose for his or her dealings with the authorities the official language
with which he or she is more familiar.
784. In the school context, it
does not seem that the Federal Court has concluded from the principle of freedom
of language that a
child has a right to be taught in a language other than the
official language of his or her place of
residence.[527] On the
other hand, the Federal Court did rule that a child cannot be required to attend
a school where the teaching is in a language
other than the language he or she
uses if another commune is prepared to admit the child into a school that uses
his or her
language.[528]
785. It
should be noted furthermore that the Swiss radio and television broadcasting
corporation (SSR) offers its own programmes to
the four linguistic communities.
In each of the three major linguistic regions (German-speaking, French-speaking
and Italian-speaking
Switzerland), three different radio programmes are on
offer, a total of nine altogether. The first programme in each language can
be
picked up not merely in the linguistic region immediately concerned but also
throughout Switzerland. The Romansh language radio
channel broadcasts, on
ultra-high frequency, only in the canton of Graubünden, where the Romansh
population traditionally resides,
but it can also be heard in different urban
areas outside Graubünden over cable networks. The major linguistic
communities
have an entire television channel each. These three channels have
to take the interests of the Romansh regions into account also,
by transmitting
programmes in that language.
786. Article 3 of the licence of 18 November
1992 granted by the Federal Council to the SSR states that radio and television
programmes
must encourage mutual understanding, cohesion and interaction among
the country’s regions, linguistic communities and cultures,
particularly
bearing in mind the presence of foreigners in Switzerland.
2. Cultural diversity in Switzerland
787. It may be said in general that the Swiss
political system considers the presence within the country of groups with
different
cultures a source of enrichment. Indeed, the entire Swiss system,
from the point of view of both its organizational and its social
aspects, is so
arranged that the country’s different cultural communities - which by and
large coincide with its linguistic
communities - can see themselves as part of
the Swiss State.
788. In this regard it should be added that respect for
human dignity and for privacy, the prohibition of any discrimination, and
freedom of expression, of religion and of language, all guarantee the freedom
the children and young members of minority groups need
to practise their
culture. Further, the Confederation and the cantons are committed, within the
limits of their constitutional competence
and available resources, to ensuring
that children and young people are assisted in their social, cultural and
political integration
(FC, art. 41). Lastly, whenever the Confederation
encourages cultural activities of interest nationwide, it must take the
diversity
of the country into consideration.
3. Freedom of religion
789. All children belonging to a minority enjoy
freedom of religion. As was made clear in the comments relating to article 14
of
the Convention, the guarantees inherent in freedom of religion allow all
children to profess and practise their religion without
hindrance, whether it is
considered a majority or a minority religion.
4. Travellers
790. Travellers are a cultural minority in
Switzerland; there is no detailed accounting of the nomadic population living in
the country.
Estimates suggest that they number about 25,000 persons, of whom
only 4,000 to 5,000 have not become sedentary. The great majority
of nomads in
Switzerland consider themselves of “yéniche”
stock.
791. The mutual aid association “Children of the Road”
(child travellers), founded in 1926 by the Pro Juventute Foundation,
was
dissolved in 1972. In the sincere belief that it was acting to protect the
children of the travellers minority, that association
took 619 of those children
from their families and forced them to become sedentary. The children were
placed, sometimes in foster
families, sometimes in homes or orphanages,
sometimes even in psychiatric clinics. As the entity mainly responsible
for that action,
Pro Juventute officially apologized to the community of
travellers. At the request of the Government, in 1988 Parliament voted funds
of
Sw F 3.5 million and, in a second phase, Sw F 7.5 million to compensate some
1,900 victims of that
policy.[529] A historical
study commissioned by the Federal Department of Information and published in
1998 shed light on the discriminatory
acts of the past, noting in particular the
respective roles and responsibilities of Pro Juventute and the
Confederation.[530]
792. On 1 May 1997 the Confederation established the foundation
“Assuring the future for the travellers of Switzerland”.
Its aim is
to facilitate the search for solutions to the main problems facing the
travellers in Switzerland, namely the question
of camping grounds, of trading
licences and of the children’s schooling. The foundation serves, in the
first instance, as
a forum in which the representatives of the travellers, the
communes, the cantons and the Confederation can seek solutions together.
It
also plays the role of intermediary in efforts to resolve specific cases.
Lastly, it has a mandate to make the public aware
of the travellers’
circumstances by means of various projects.
793. It should be noted, in
addition, that the Swiss legal system was chiefly created to serve the views and
interests of the sedentary
population. As a result, the laws in force may
militate against the maintenance of the travellers’ cultural identity.
Much
attention is therefore being paid to the question. In that respect, the
Federal Commission against Racism (CFR) recommends support
for those teachers
who are ready to provide correspondence courses during the months when families
are on the road. It also recommends
a flexible application of the general ban
on child labour in the case of travellers’ children. Not that the ban,
which is
motivated by a desire to protect youngsters from exploitation, should
be lifted, but that these children should be allowed to accompany
their parents
and acquire the knowledge they will need in the future for the work travellers
traditionally do.
794. Lastly, with regard to schooling for
travellers’ children, the cantons concerned deal with the matter in a very
pragmatic
way by admitting the children to school even for short periods. In
wintertime the children go to the local school at the place where
they have
gathered and can also attend make-up classes there. During their travelling
time, the teaching staff provide them with
textbooks and appropriate homework
and are ready to answer any questions about the work or to maintain regular
contacts with the
travellers.
5. Foreign-language-speaking or multilingual children[531]
795. On average some 20 per cent of schoolchildren speak a foreign
language and do not therefore have their lessons in their mother
tongue. The
Federal Commission on Foreigners and the CDIP held a national conference in
June 1998 concerning the extra courses on
countryoforigin language and culture
taught in Swiss
schools.[532]
796. That meeting confirmed the fact that for multilingual children
their experience of their first language as the language of the
family is of
great importance in their quest for identity between the two cultures and for a
possible return to their country of
origin. A good knowledge of their first
language has a positive influence on their acquisition of a Swiss national
language as their
second language.
797. Nearly all the cantons,
embassies, consulates or national groups offer courses on their language and
culture of origin to the
children of their nationals. Often the cantons or
communes make school premises available to them free of charge. In certain
schools
the first language of foreign-language-speaking children is taught as
part of the school
programme.[533]
798. Extracurricular activities are equally important for the
development of young foreignlanguage-speaking children. Social gatherings
of
young people play an important role in this regard by providing a social
infrastructure and places where youngsters of the same
age and culture can get
together. In connection with the assistance given to foreign children and young
people, it is important
that staff of the children’s original cultures be
recruited to act, among other things, as intermediaries to ensure integration
and understanding between the different cultures. Acquiring a knowledge of many
cultures - both in school and out - strengthens
tolerance and an understanding
of other ways of life. Intercultural understanding is also enhanced by public
discussion of the circumstances
of foreign families and, especially, the
future prospects of young foreigners.
799. The prevention of racism
and intercultural education play a very important role here. Reference is made
to the observations
relating to article 2 of the Convention.
IX. CONCLUSION
800. Preparation of this report has afforded an
opportunity to conduct a comprehensive review of the social and legal situation
of
children in Switzerland and to describe the achievements of policy concerning
them against the background formed by the Convention.
801. This review
has drawn attention to the areas in which the protection of the child needs to
be strengthened. While the situation
of children in Switzerland is generally
very good, it is nonetheless true that implementation of the Convention in some
sectors,
such as provision of day care and prevention of problems relating to
drugs, sexual violence and suicide, needs to be improved.
802. As a
framework for action, this report has given impetus to national and cantonal
policies on children and young people. It
is the intention of the Government to
encourage these initiatives, in particular in the context of preparations for
the World Summit
for Children.
803. Progress in these areas will thus give
practical expression to the continued commitment by Switzerland to respect and
ensure
respect for the rights enshrined in the Covenant.
Notes
List of annexes[*]
A. Elements of a Swiss policy on children and young
people,
Federal Department of Home Affairs, Bern, 3 July
2000
B. Legal texts (available on Internet: www.admin.ch/ch/f/rs/rs.html)
1. Federal
Constitution of the Swiss Confederation of 18 April 1999 (FC) (RS 101)
of 29 September 1952 (RS 141.0)
3. Asylum Act (Lasi) of 26 June 1998 (RS 142.31), and Ordinances 1 and 2
of
11 August 1999 (RS 142.311 and RS 142.312)
4. Federal Act concerning the Permanent and Temporary Residence of
Foreigners (LSEE)
of 26 March 1931 (RS 142.20)
5. Federal Act concerning Equality between Women and Men (Equality Act,
LEg) of
24 March 1995 (RS 151)
6. Swiss Civil Code (CC) of 10 December 1907
(RS 210)
7. Ordinance on Civil Status (OEC) of 1 June 1953 (RS
211.112.1)
8. Ordinance on Intermediary Activity with a view to Adoption
of 28 March 1973
(RS 211.221.36)
9. Ordinance regulating the Placement of Children of 19 October 1977 (RS
211.222.338)
10. Federal Act concerning Data Protection (LPD) of 19 June
1992 (RS 235.1)
11. Federal Act concerning Private International Law
(LDIP) of 18 December 1987
(RS 291)
12. Swiss Criminal Code (CP) of 21 December 1937 (RS
311.0)
13. Message concerning the amendment of the Swiss Criminal Code
(general provisions,
entry into force and enforcement of the Criminal Code) and the Military Criminal Code, and also a federal act governing the criminal status of minors, of 21 September 1998 (FF 1999, 1787 et seq.)
14. Federal Act concerning Assistance to Victims of Offences (LAVI) of 4 October 1991
(RS 312.5)
15. Ordinance on Computerized Criminal Records of 1
December 1999 (RS 331)
16. Federal Act concerning Vocational Training
(LFPr) of 19 April 1978 (RS 412.10)
17. Ordinance on the Recognition of
Maturité Certificates (ORM) of 15 February 1995
(RS 413.11)
18. Federal Act concerning the Encouragement of Extra-curricular Youth
Activities
(Youth Activities Act, LAJ) of 6 October 1989 (RS 446.1) and Ordinance (RS 446.11)
19. Federal Act concerning the Army and Military Administration (LAAM)
of
3 February 1995 (RS 510.10), and Ordinance on the Recruitment of Conscripts (OREC) of 17 August 1994 (RS 511.11)
20. Federal Act concerning Alcohol (Lalc) of 21 June 1932 (RS
680)
21. Federal Act concerning Radio and Television (LRTV) of 21 June
1991 (RS 784.40), and
Ordinance (RS 784.401)
22. Federal Act
concerning Narcotic Drugs and Psychotropic Substances (Narcotic Drugs
Act,
LStup) of 3 October 1951 (RS 812.121)
23. Federal Act concerning Work in
Industry, Crafts and Commerce (Work Act) of
13 March 1964
(RS 822.11)
24. Ordinance limiting the Number of Foreigners (OLE) of 6
October 1986 (RS 823.21)
25. Federal Act concerning Old-Age and Survivors
Insurance (LAVS) of
20 December 1946 (RS
831.10)
26. Federal Act concerning Sickness Insurance (LAMal) of 18 March
1994 (RS 832.10)
27. Federal Act concerning Disability Insurance (LAI) of
19 June 1959 (RS 831.20)
C. Statistics
1. Resident population under the age of 18, by
nationality, by sex and by place of residence
2. Resident population
under the age of 18, by main language, religious affiliation and place
of residence
3. Resident population under the age of 18 by type of household and place
of residence
4. Population by type of household and place of residence
5. Swiss
statistics published by the tutorship authorities for 1997 concerning old and
new measures for the protection of children
D. List of principal abbreviations
ATF Arrêt du Tribunal
Fédéral (Decision of the Federal Court)
CC Swiss Civil
Code of 10 December 1907
CDIP Conference of Cantonal Directors of
Education
CFR Federal Commission against Racism
CP Swiss Criminal
Code of 21 December 1937
CRA Asylum Appeals Commission
DFI Federal
Department of Home Affairs
ECHR European Convention on Human
Rights
FC Federal Constitution of the Swiss Confederation of 18 April
1999
FF Feuille fédérale
LAI Federal Act
concerning Disability Insurance of 19 June 1959
LAJ Federal Act
concerning the Encouragement of Extra-curricular Youth Activities
of 6 October 1989
LAMal Federal Act concerning
Sickness Insurance of 18 March 1994
Lasi Federal Act concerning Asylum of
26 June 1998
LAVI Federal Act concerning Assistance to Victims of
Offences of 4 October 1991
LAVS Federal Act concerning Old-Age and
Survivors Insurance of 20 December 1946
LDIP Federal Act concerning
International Private Law of 18 December 1987
LEg Federal Act concerning
Equality between Women and Men (Equality Act)
of 24 March 1995
LFPr Federal Act concerning Vocational Training of 19
April 1978
LN Federal Act concerning the Acquisition and Loss of
Nationality (Nationality Act)
of 29 September 1952
LPD Federal Act concerning Data Protection of 19
June 1992
LRTV Federal Act concerning Radio and Television of 21 June
1991
LSEE Federal Act concerning the Permanent and Temporary Residence of
Foreigners
of 26 March 1931
LStup Federal Act concerning Narcotic Drugs and
Psychotropic Substances
of 3 October 1951
LT Federal Act concerning Work in Industry, Crafts and Commerce (Work
Act)
of 13 March 1964
NGO Non-governmental organization
ODR Federal Office for
Refugees
OEC Ordinance on Civil Status of 1 June 1953
OFSP Federal
Office of Public Health
OLE Ordinance Limiting the Number of Foreigners
of 6 October 1986
ORM Ordinance on the Recognition of
Maturité Certificates of 15 February
1995
RMNA Unaccompanied Juvenile Asylum-Seeker
RO Recueil
officiel des lois fédérales (Official compendium of federal
statutes)
RS Recueil systématique du droit
fédéral (Systematic compendium of federal law)
-----
[1] RS 0.107.
[2] The statistical material is provided by the Federal Office for Statistics (OFS).
[3] See statistical table No. 1 annexed.
[4] See Statistical table No. 2 annexed (with detailed data on other languages and religions).
[5] Switzerland uses both the term “human rights” and “rights of the individual”, the words “human” or “individual” designating any human being, regardless of sex. This also applies to other terms such as “citizens”, “refugees”, etc.
[6] See Federal Council report of 29 November 1993 on Switzerland’s foreign policy in the 1990s (FF 1994 I 150, ch. 412 (p. 176)).
[7] FF 1994 V 76 et seq.
[8] See also the Federal Council’s position of 13 March 2000 on the Berberat motion, No. 99.3627, of 22 December 1999.
[9] See commentaries relating to articles 5, 7, 10, 37 and 40 of the Convention.
[10] For further details of the new criminal law on minors, see the commentary relating to article 40 of the Convention below.
[11] Message concerning the amendment of the Swiss Criminal Code and the Military Criminal Code, and also a federal act governing the criminal status of minors of 21 September 1998 (FF 1999 1787 et seq.).
[12] In cooperation with the DFI, the Swiss Committee for UNICEF organized, on 5 February 1999, a symposium on the subject of mediation work for children.
[13] See
HRI/CORE/1/Add.29/Rev.1, para. 79. See also ATF 112 Ib 184, 120 Ia
1
and 124 IV 23.
[14] On the initiative of Kinderlobby Schweiz, 20 November has been celebrated as Children’s Day in Switzerland since 1993, commemorating 20 November 1959 (when the United Nations General Assembly adopted a declaration of intent embodying 10 important rights of the child) and 20 November 1989 (date of adoption of the Convention by the General Assembly).
[15] Article 2 of
the Ordinance of 3 June 1996 on extraparliamentary commissions,
executive bodies and representatives of the Confederation
(RS 172.31).
16 Journal suisse des
enseignantes et enseignants (SLZ), 1999, book 1, pp. 2733.
[17] Notably the cantons
of Obwalden, Geneva, Zürich, Fribourg and Ticino. By way of example,
mention may be made of the following:
Geneva has prepared didactic material
geared to the primary level, and several chapters of the higherlevel civic
education textbook
“Education citoyenne” are devoted to the
Convention. In addition, the text of the Convention is distributed to all
higherlevel
pupils. Fribourg also presents the Convention in its civic
education textbook. Ticino educates its schoolchildren by means of brochures
and an itinerant exhibition.
18 Notably the cantons of
Zug, Thurgau, Schaffhausen, Appenzell-Ausserrhoden, St. Gallen, BaselLand,
Uri, BaselStadt, Valais and Jura.
19 St. Gallen,
Graübunden, Zürich, Ticino, Jura and Solothurn have expressly taken it
as a subject in their training programmes.
Several cantons report specific
initiatives by associations, schools or institutions on the subject of the
Convention. In Ticino,
the themes of the Convention have been included in the
parent training and parents’ advice service programme. In Solothurn,
all
the authorities and institutions working in the sphere of child protection have
had their attention drawn to the specific requirements
of the
Convention.
20 Internet:
www.younet.ch.
21 On the model for
Switzerland’s initial report relating to the implementation of the
International Convention on the Elimination
of All Forms of Racial
Discrimination of 1965.
[22] Joint
United Nations Programme on HIV/AIDS.
23
United Nations population fund.
24 ATF 114 Ia
350.
25 RS 822.11.
[26] See. the commentary relating to article 32 of the Convention.
[27] LTr, art. 29 (1).
[28] LTr, art. 29
(3).
29 FF 1996 III, 197.
[30] LPMA, art. 27 (2).
[31] RS
680.
[32] See commentary
relating to article 33 of the Convention.
[33] See commentary relating to article 28 of the Convention.
[34] RS 311.0.
[35] FF 1999 1787.
[36] See commentary relating to article 40 of the Convention.
[37] J.P. Müller, “Grundrechte in der Schweiz; Im Rahmen der Bundesverfassung von 1999, der UNO-Pakte und der EMRK”, third edition, 1999, p. 396.
[38] J.P. Müller, op. cit., p. 396.
[39] See among others ATF 124 I 289 E. 3b, p. 292.
[40] ATF 121 II 198 E. 4a, pp. 204.
[41] ATF 122 I 343 E. 4, pp. 349 et seq.
[42] ATF 123 IV 202.
[43] RS 312.5.
[44] RS 151. Entered into force on 1 July 1996.
[45] Various aspects of the integration of foreign children in the Swiss school system are discussed under article 28 of the Convention.
[46] Other examples of recent publications are “Diskriminierungsverbot und Familiennachzug, 1998; Antisemitismus in der Schweiz, 1998; und Getrennte Klassen? 1999”.
[47] Adopted at the summit meeting of the Heads of State and Government at Vienna in 1993.
[48] Of 6 June 1991.
[49] Cf. Federal Office of Justice, Report of an interdepartmental group on questions under criminal law of the right to data and copyright protection raised by the Internet, Bern, May 1996.
[50] For example the notice of 14 February 2000 of the Federal Police and the recommendations of DFAE.
[51] See the commentaries relating to articles 9, 12 and 18 of the Convention.
[52] Cf. Swiss statistics on tutorship for 1997 concerning old and new measures for the protection of children (Statistical table No. 5 annexed).
[53] ATF 117 II 353.
[54] See commentaries
relating to article 37 of the Convention.
55 A project
based on a parliamentary initiative by Haering Binder concerning authorized
deadlines is at present being debated in Parliament.
This project proposes that
termination of pregnancy during the first 14 weeks after the beginning of the
last period should not
be punished.
56 RS
312.5.
57 ATF 121 I 367.
58
See commentaries relating to articles 26 and 27.
59
Cf. the Federal Act concerning Assistance to Swiss Nationals Abroad (RS 852.1)
and an implementing order (RS 852.1) establishing
the principle of and
procedures for assisting such persons when in need.
[60] RS 142.311 and
142.312.
[61] RS
142.20.
[62] RS
142.281.
[63] See
commentary relating to article 28 of the
Convention.
[64] See
commentaries relating to article 3 of the Convention concerning the various
measures that can be taken by the authorities.
[65] See commentary
relating to article 32 of the
Convention.
[66] See
commentary relating to articles 19 and 34 of the
Convention.
[67] CC, art.
48 and OEC, art. 74
(1).
[68] Articles 59 (1)
and 74 (2) of the Ordinance of 1 June 1953 on Civil Status (OEC),
RS 211.112.1.
[69] RS
211.112.1.
[70] OEC,
art 80.
[71] OEC,
art 83 (1) a
contrario.
[72] CC,
art. 301 (2).
[73] As for example in Bern, Lucerne and Fribourg.
[74] Jura for example.
[75] For example in the cantons of Bern, Basel-Stadt, Geneva, Fribourg and Lucerne.
[76] ATF 120 Ia 369.
[77] The cantons of
Appenzell-Ausserrhoden and Uri, for example.
78 The
canton of Schwyz, for example, fixes the age limit at 24 months for girls and 30
months for boys.
79 Zug and Graubünden, for
example.
[80]
Basel-Stadt.
81 Such as dolls in
Appenzell-Ausserrhoden, for example.
82 CC, art. 133
(2).
[83] CC, art. 144 (1).
[84] CC, art. 134
(1).
85 CC, art. 146 (2).
86
CC, art. 146 (3).
[87] CC, art. 147 (2).
[88] CC, art. 147 (3)
[89] In the cantons of St. Gallen, Basel-Land and Schwyz, for example. In the canton of BaselStadt children of under 14 years of age are heard if necessary, while it is mandatory to hear those of 14 years and over.
[90] In the canton of Bern, for example, this is done every six months.
[91] CC, art. 256 (1) ch. 2; CC, art. 259 (2), ch. 2; and CC, art. 260a (1).
[92] CC, art. 279 (1).
[93] CC, art. 30
(1).
[94] CC, art. 392
(2).
[95] CC, art. 265 (2). For example, Basel-Land fixes the age limit at about 5 or 6 years, Schwyz at about 10 years, whereas the cantons of Ticino and Vaud require that the child to be adopted should provide written confirmation of the request.
[96] See commentary relating to article 19 of the Convention.
[97] OEC, art. 59.
[98] OEC, art. 61.
[99] OEC, art. 59 (2).
[100] CC, art. 270, and OEC, arts. 67 and 69.
[101] CC, art. 69 (2 bis).
[102] CC, art. 261 (1).
[103] CC, art. 309 (1). See statistical table No. 5, annexed.
[104] FF 1998 4992.
[105] CC, art. 297 (1).
[106] CC, art. 298 (1). The situation of children whose parents are divorced is considered in the commentary relating to article 18 of the Convention.
[107] See, in this connection, the position taken by the Federal Council on 13 March 2000 with regard to the Berberat parliamentary motion, N 99.3627, of 22 December 1999.
[108] OEC, art. 27.
[109] OEC, art. 67.
[110] OEC, art. 114.
[111] OEC, art. 18.
[112] Except in cases of malicious complaint.
[113] ATF 96 I 586, 592.
[114] ATF 108 Ia 277.
[115] See commentary relating to article 12 of the Convention.
[116] See Federal Council message of 20 November 1996 on the reform of the Federal Constitution, FF 1997 I 1s., art. 14, p. 160.
[117] See Müller, in Commentary on the Federal Constitution, freedom of expression, No. 48 et seq.
[118] These restrictions are codified in a general provision of the Federal Constitution at the end of the list of fundamental rights (art. 36).
[119] See Convention, art. 15.
[120] The following are prohibited: calumny (art. 303); violation of trade, private, company, professional or military secrets (arts. 162, 179, 179 quater, 320, 321 and 329); improper use of a telecommunications system (art. 179 septies); public incitement to crime or violence (art. 259); racial, ethnic or religious discrimination (art. 261 bis); disturbing the peace of the dead (art. 262); violation of Swiss emblems (art. 270); depiction of violence (art. 135); violation of freedom of belief and worship (art. 261); provoking and inciting the breach of military duties (art. 276); production of subversive foreign propaganda (art. 275 bis); publicly insulting a foreign State or inter-State organization (arts. 296 and 297). See also the provisions on the protection of a person’s honour (art. 173 et seq.) and certain sexual offences (art. 187 et seq.).
[121] ATF of 24 May 1978, ZBI 1978, p. 510.
[122] CP, art. 261.
[123] RS 446.1. See also the Ordinance concerning the Encouragement of Extra-curricular Youth Activities of 10 December 1990 (RS 446.11).
[124] [No text.]
[125] RS 784.401.
[126] Entered into force for Switzerland on 1 May 1993. RS 0.784.405. The 1998 amendments to the Convention enter into force in Switzerland on 1 October 2000.
[127] This provision also applies to teleshopping. See Council of Europe Opinion No. 8 (1997) on advertising aimed at children and advertising for alcoholic drinks, which comments on the provision in article 11 (3) of the Convention. See also, for the restrictions on alcohol and tobacco advertising, the commentary below relating to article 33 of the Convention.
[128] See the various penalties provided for in article 197 of the Criminal Code.
[129] ATF 104 Ia 84.
[130] Direct horizontal effect, ATF 4 434ss.
[131] Pursuant to article 62 of the Constitution, cantons are responsible for providing primary education in State schools.
[132] ATF 116 Ia 252, 260, preambular paragraph 6.
[133] See Borghi, in Commentary on the Federal Constitution, article 27, No. 68 et seq.
[134] ATF 123 I 296.
[135] ATF 116 Ia 252.
[136] See commentary relating to article 30 of the Convention.
[137] ATF 114 Ia 134.
[138] In Geneva, for example.
[139] St. Gallen, Schwyz and Bern, for example.
[140] ATF 120 Ib 4.
[141] ATF 120 Ia 376.
[142] CC, art. 19 (2).
[143] RS 235.1.
[144] FF 1997 I 701. Switzerland ratified this instrument on 2 October 1997; it entered into force for Switzerland on 1 February 1998.
[145] Of 1 December 1999. RS 331.
[146] RS 211.222.338, Ordinance of 19 October 1977.
[147] RS 0.105.
[148] RS 0.106.
[149] ATF 108 Ib 408.
[150] CP, art. 111 et seq.
[151] CP, art. 122 et seq.
[152] CP, art. 127 et seq.
[153] CP, art. 180 et seq.
[154] Information on family guidance services and institutions, education of parents, etc. can be found in the commentary relating to article 18 of the Convention.
[155] CC, art. 303.
[156] CC, art. 302 (3).
[157] See the recent position of the Federal Council of 13 March 2000 on the Berberat motion, No. 99.3627, of 22 December 1999.
[158] General definition of the family proposed by a group of federal experts in 1982 in their report on family policy in Switzerland (final report submitted to the Chief, Federal Department of Home Affairs, by the “family report” Working Group), p. 7.
[159] See detailed statistical tables Nos. 3 and 4 annexed (Population under 18 years of age by type of household and region of domicile).
[160] CC, art. 301 (1).
[161] See commentary relating to article 27 of the Convention.
[162] CC, art. 297 (1).
[163] CC, art. 298 (a), (2).
[164] RS 857.5.
[165] Such as Geneva, Bern, Aargau, Zürich and Basel-Stadt.
[166] In the canton of Zürich, for example, the 1981 law on assistance to young people assigned to the secretariat for youth the task of counselling young children. Its work is to give assistance in individual cases, take preventive measures and foster independent aid and private initiative.
[167] Thus the St. Johann parent-child contact point in Basel is an institution of the Basler Frauenverein founded 20 years ago.
[168] For example the cantons of Basel-Land and Aargau.
[169] By way of example, in Basel there are at present nine centres and services of this type supported by the canton. In addition to counselling services for mothers and fathers, Basel has a contact centre for parents of infants, which offers both medical and psychosocial help. When the problems are more serious, parents are directed to the Basel family educational counselling service. Mention should be made also of the therapeutic teaching service in Basel-Stadt. It should be noted that, in Basel, parent training forms part of adult training. It is a means of accompanying and supporting parents in raising their children and thus contributes to the healthy growth and development of children and parents in the family circle. It is aimed at prevention of dependency and violence and at the promotion of general health.
[170] See commentary relating to article 27 of the Convention.
[171] RS 832.10.
[172] RS 851.1.
[173] See commentary relating to article 22 of the Convention.
[174] See commentary relating to article 28 of the Convention.
[175] CC, art. 307.
[176] CC, arts. 310 and 311.
[177] See statistical table No. 5 annexed.
[178] See statistical table No. 5 annexed.
[179] CC, art. 314, ch. 1.
[180] CC, art. 297 (2). For cases involving divorce, see commentary relating to article 18 of the Convention.
[181] CC, arts. 176 and 156.
[182] CC, art. 314, first sentence.
[183] CC, art. 310 (2).
[184] CC, art. 133 (2). See commentary relating to article 12 of the Convention.
[185] CC, art. 146 (1).
[186] CC, art. 146 (2).
[187] CC, art. 146 (3).
[188] CC, art. 147 (2).
[189] CC, art. 147
(3).
[190] CC,
art. 272.
[191] CC, art. 273 (2).
[192] CC, art. 275a (1).
[193] CC, art. 275a (3).
[194] FF 1999 1787.
[195] See information bulletin of the Central Organization for Family Questions, March 1998.
[196] Commission on Human Rights, forty-fifth session, 2 March 1989 (E/CN.4/1989/48, para. 203).
[197] ATF 124 II 361, third preambular paragraph.
[198] Concerning withdrawal of the reservation, see section 10 of the text under article 10.
[199] Switzerland is bound by article 12 of the International Covenant on Civil and Political Rights.
[200] Regulation of 1 March 1949 governing the Federal Act concerning the Permanent and Temporary Residence of Foreigners (LSEE/RS 142.201), article 2 (7).
[201] Federal Act concerning the Acquisition and Loss of Nationality, of 29 September 1952 (RS 141.0), article 1.
[202] See Federal Act concerning the Permanent and Temporary Residence of Foreigners, of 26 March 1931 (LSEE, RS 142.20), articles 7 and 17, (2) and the Ordinance Limiting the Number of Foreigners of 6 October 1986 (OLE/RS 823.21), article 38.
[203] The age limit is set at 20 years for children who are nationals of Spain, Italy and Portugal, the main manpower-exporting countries.
[204] ATF 118 Ib 153, preambular paragraph 1 (b).
[205] The one-year waiting period was completely eliminated in 1993.
[206] ATF 118 Ib 153. In that particular case family reunification was refused because the child had lived apart from the parent requesting it and wanted to come to Switzerland shortly before turning 18 basically for economic reasons. See also ATF 125 II 585.
[207] Unpublished ATF of 23 February 1996 in the case C.-P.-V, 2A.354/1995. See also ATF 125 II 585.
[208] ATF 118 Ib 153.
[209] LSEE, art. 5.
[210] LSEE, art. 6.
[211] LSEE, art. 17 (2).
[212] OLE, art. 38.
[213] OLE, art. 13 (f).
[214] OLE, art. 36.
[215] The child of a Spanish, Italian or Portuguese national, admitted for family reunification between the ages of 18 and 20, can obtain a permanent residence permit after a regular, uninterrupted stay of five years.
[216] ATF 115 Ib 97, third preambular paragraph.
[217] ATF 119 Ib 81.
[218] ATF 115 Ib 97, third preambular paragraph.
[219] ATF 122 II 1, second preambular paragraph; 120 Ib 1, preambular paragraph 3 (b).
[220] ATF 109 Ib 183.
[221] The Federal Court stated that article 8 of the European Convention applied in the case of a father who, as a result of divorce, had lost his right to reside in Switzerland, but whose son had Swiss nationality; the father could invoke an intact family relationship with his child, even though he had neither parental authority nor custody (ATF 120 Ib 1, preambular paragraph 1 (d).
[222] ATF 119 Ib 81, preambular paragraph 4 (a); 118 Ib 153, preambular paragraph 2 (d).
[223] ATF 122 II 289, preambular paragraph 3 (b).
[224] ATF 115 Ib 97; 118 Ib 153; 120 Ib 22.
[225] In the context of
measures under the law relating to aliens, the Federal Court has ruled that
family life merits protection in such
cases only when there is a relationship of
dependence between the family members. Such a situation may in particular arise
from
a need for assistance or care, for example in the case of physical or
mental disability or severe illness, regardless of the age
of the person
concerned. (ATF 120 Ib 257, preambular paragraph 1 (e), 261; 115 Ib 1; and
various unpublished decisions cited in:
Martina Caroni, Privat- und
Familienleben zwischen Menschenrecht und Migration, Diss. Bern, Berlin, 1999,
p.185).
[226] ATF 119
Ib 91.
[227] Decision Gül v. Switzerland, 19 February 1996, vol. 1996-I, No. 3.
[228] OLE, art. 38.
[229] OLE, art. 39.
[230] According to article 13 of the 1964 Italian-Swiss emigration agreement, an Italian worker with a temporary residence permit has the right, on certain conditions, to bring his spouse and minor children into Switzerland (RS 0.142.114.548).
[231] OLE, arts. 38 and 39.
[232] ATF 118 Ib 153 and 125 II 585.
[233] LSEE, art. 17, para. 2; OLE, arts. 38 and 39.
[234] ATF 122 II 1; 120 Ib 1 and 125 II 633.
[235] ATF 115 Ib 1.
[236] ATF 109 Ib 183.
[237] ATF 120 Ib 257, preambular paragraph 1 (e); 115 Ib 1.
[238] ATF 122 II 385, preambular paragraph 1(c).
[239] ATF 122 II 289, preambular paragraph 3 (b).
[240] ATF 119 Ib 81, preambular paragraph 4 (a); 118 Ib 153, preambular paragraph 2 (d).
[241] ATF 122 II 385, preambular paragraph 4.
[242] LSEE, art. 4.
[243] ATF 122 II 1.
[244] ATF 119 Ib 91. The European Court ruled that there had been no violation of article 8 of the European Convention, in view of the fact that the foreigner wanting to bring members of his family (two children) into Switzerland on grounds of family reunification, held only a retractable temporary residence permit, which did not give him the right to family reunification under Swiss law, and that it was possible for the persons living in Switzerland to return to Turkey and pursue their family life there.
[245] ATF 119 Ib 91 and
125 II 585.
[246] ATF
122 II 289, third preambular paragraph; ATF 115 Ib
1.
247 ATF 120 Ib 1. In this case a temporary
residence permit was issued to enable a Tunisian national to live with his
daughter, his
natural child of Swiss nationality, whom he saw every week and to
whom he paid a regular allowance.
[248] OLE, art. 36.
[249] OLE, art. 13 (f).
[250] RO 1999, 2262.
[251] Lasi, art. 27, para. 3.
[252] Asylum Appeals Commission decision of 20 February 1996 (JICRA 1996/14).
[253] Lasi, art. 44 (1).
[254] Lasi, art. 51 (3).
[255] Asylum Appeals Commission decision of 6 November 1995 (JICRA 1995/24).
[256] Ordinance on Temporary Admission of Foreigners of 25 November 1987 (RS 142.281), article 7.
[257] See sect. 3, supra.
[258] OLE, art. 38 (2).
[259] Regarding the reservation, see also the position taken by the Federal Council on 13 March 2000 on the Berberat motion, No. 99.3627, of 22 December 1999.
[260] The idea of following up return decisions was supported by several delegations, including the Swiss delegation, and approved at the third meeting of the Special Commission to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction in March 1997.
[261] RS 0.211.230.01.
[262] RS 0.211.230.02. These instruments complete, from a specific angle, the Hague Convention concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Infants of 5 October 1961 (RS 0.211.231.01), ratified earlier by Switzerland.
[263] Accession to the Convention is effective only in relations between the acceding State and Contracting States which have officially accepted that State’s accession (art. 38).
[264] See comments relating to articles 18 and 27 of the Convention.
[265] CC, art. 308 (2), see statistical table No. 5 annexed.
[266] CC, art. 280 (1).
[267] CC, art. 285 (1).
[268] CC, art. 285 (2).
[269] CC, art. 289 (1).
[270] CC, art. 290.
[271] CC, arts. 291 and 292.
[272] CC, art. 293 (2).
[273] RS 0.211.221.431.
[274] RS 0.211.221.432.
[275] RS
0.211.213.01
.
[276]
RS 0.211.213.02.
[277] RS
0.274.15.
278 CC, art. 310 (1).
[279] CC, art. 310 (1).
[280] CC, art. 301 (2).
[281] See commentary relating to article 21.
[282] Of 19 October 1977; RS 211.222.338.
[283] OPE, art. 4.
[284] OPE, art. 5.
[285] OPE, arts. 10 and 11.
[286] OPE, art. 13.
[287] OPE, art. 15.
[288] OPE, art. 19 (1).
[289] OPE, art. 20.
[290] ATF 121 III 307.
[291] CC, art. 314a (1).
[292] CC, art. 314a (2) and 397d.
[293] CC, art. 264.
[294] OPE, art. 5.
[295] CC, art. 265 (2).
[296] CC, art. 265 (3).
[297] CC, art. 265a.
[298] CC, art. 265b (1) and (2).
[299] CC, art. 265c.
[300] CC, art. 268a (3).
[301] CC, art. 265 (1).
[302] CC, art. 264a (1).
[303] CC, art. 264a
(2).
304 CC, art. 264a
(3).
305 CC, art. 268.
[306] CC, art.
268a.
307 CC, art. 269c; Ordinance on Intermediary
Activity with a view to Adoption, RS 211.221.36.
308
Federal Council circular of 21 December 1988 to the supervisory authorities
concerning the placement of children and intermediary
activity for eventual
adoption. FF 1989 I 8, in ch. 114.1.
309 LDIP, art.
77 (2).
[310] Entered
into effect 1 January 1989.
[311] See LDIP, arts.
75 (1) and 77; CC, arts. 264-269.
312 In this
connection, see A. Bucher, Droit international privé suisse, t. II,
Personnes, famille, successions, p. 251, Nos.
755 and 756.
[313] As amended on 21 December 1988 (RS 211.222.338).
[314] Federal Act of 18 December 1987 on International Private Law (LDIP), RS 291, art. 78.
[315] See OPE, art. 6; C. Hegnauer, Droit suisse de la filiation et de la famille, French adaptation. by B. Schneider, Berne 1990, 3rd ed., p. 80, No. 11.07.
[316] OPE, art. 6 (2).
[317] OPE, art. 6 (4).
[318] OPE, arts. 6 and 6a.
[319] OPE, art. 8b.
[320] LDIP, art. 78 (1).
[321] See commentary
relating to article 23 (b).
322 RS 831.20.
[323] RS 832.10.
[324] Ordinance
Limiting the Number of Foreigners of 6 October 1986 (OLE), RS 823.21,
article 35.
325 An authorization granted under
the terms of OLE, article 35.
[326] RS 142.20.
[327] Ordinance on Intermediary Activity with a view to Adoption of 28 March 1973, RS 211.221.36, article 13 (2).
[328] RS 0.211.221.310.
[329] RS 0.211.221.315.
[330] The Federal
Council, by decision of 19 May 1999, has transmitted notification of the
ratification of the Convention to Parliament
(FF 1999
5129).
[331] CC, art.
310 (1).
[332] OPE, arts. 10 and
19 (1). For more details, see the commentary relating to article 20 of the
Convention below.
333 CC, art. 397a (3).
[334] CC, art. 397d.
[335] CC, art. 314a (2).
[336] See below.
[337] CP, art. 111 et seq. (homicide); art. 122 et seq. (especially art. 123 (2): simple bodily injuries against a child, of whom the perpetrator of the offence had custody or for whom he or she had a duty of care).
[338] RS 812.121.
[339] See commentary relating to article 34 of the Convention.
[340] CP, art. 187.
[341] Version of 1 October 1992.
[342] CP, art. 358
bis and 358 ter; see FF 1985 II 1021.
343
CP, art. 358 bis.
344 CP, arts. 320-321
bis.
345 FF 1985 II 1021, 1077S.
[346] CC, art. 307
(1).
347 CC, art. 307
(2).
348 See statistical table No. 5
annexed.
349 CC, art. 420.
[350] St. Gallen,
Bellinzona, Lausanne and Bern.
[351] An interesting
project was launched in 1997 by the Swiss Association for the Protection of
Children, intended for sports club trainers
dealing with children. There is
also a project for the prevention of sexual abuse against children and young
people in youth and
sports associations (CSAJ and
CEVI).
352 See commentary relating to articles 34 and
35.
[353] The parliamentary moves concerned are the Vermot motion 97.3610 “Maltreated children and public relations”, of 17 December 1997, and postulate 96.3180 of 24 April 1996 by the National Council’s Legal Affairs Commission, calling for the implementation of an information campaign against daily violence in the immediate social environment.
[354] Funded chiefly by the Central Organization for Family Questions, an ongoing training course in several modules is provided in German-speaking Switzerland for specialists dealing with child maltreatment and sexual abuse (such as lawyers, police officers, doctors and nurses, tutorship authorities, social workers, psychologists and teachers).
[355] In particular by the Swiss Federation for Parents’ Schools.
[356] The cantons of Vaud and Ticino, and the towns of Lucerne and Lausanne.
[357] These are multidisciplinary hospital bodies in charge of detecting and dealing with cases of maltreatment and measures for protecting children (e.g. cantons of Vaud and Geneva).
[358] Canton of Zürich.
[359] Cantons of Fribourg, Vaud, Jura and Graubünden.
[360] For instance, the film “Dis NON” (Say NO).
[361] Act of 4 October 1991, effective 1 January 1993. RS 312.5.
[362] Of 18 November 1992. RS 312.51.
[363] See in particular parliamentary initiative No. 94.441: Sexual exploitation of children. Better protection (Goll).
[364] RS 832.10.
[365] RS
0.312.5.
366 Article 3 of the Federal Act concerning
Assistance to Victims of Offences of 4 October 1991 (LAVI, RS 312.5).
[367] Daniel S.
Halpérin, Paul Bouvier, Hélène Rey Wicki, A contre-coeur,
à contre-corps. Regards pluriels
sur les abus sexuels d’enfants.
Geneva, 1997.
[368]
Josef Martin Niederberger, Sexueller Missbrauch von Mädchen in der Schweiz
- Verbreitung, Täterstrategie, Folgen, Köniz
1998.
[369] See commentary
relating to Convention, article 2.
370 See FC, art. 35
(2).
371 Horizontal effect, see FC, art. 35 (3).
372 The time limit for the consultation procedure
vis-à-vis the cantons, the federal courts, concerned federal commissions,
political
parties and interested organizations expired on 31 August
2000.
373 See commentary relating to Convention,
article 28, below.
374 Federal Act concerning
Disability Insurance (LAI), of 19 June 1959 (RS
831.20).
375 Geneva, Schwyz, Bern, Aargau and Valais
which, in 1991, set up a specialized office for the integration of disabled
persons.
376 Zug has, moreover, formulated a policy
on disabled persons, while Schaffhausen has produced a design for special
schools.
377 See commentaries relating to
Convention, articles 6 and 27.
[378] RS 832.10.
[379] LAMal, art. 19.
[380] Physical activity and sport, whose importance for the health and development of children and young people is becoming increasingly clear, both within and outside gymnastics classes, are thus included in a project. In addition, with the support of this Foundation, the Swiss Association for Physical Education in Schools is currently preparing a project aimed at developing and promoting health in schools, which is based on physical activity.
[381] See in this
connection ATF 118 Ia 427.
382 The programmes which
schools have undertaken very widely: school policy encouraging health
promotion, school environment, intercultural
tolerance, development in teams,
pupil participation, prevention of violence, specific in-school training,
organizations of school
breaks, arrangement of recreation sites, healthy diet,
spatial arrangement. WHO’s Ottawa Charter for Health Promotion on 21
November 1996 constitutes the conceptual framework for these efforts.
383 Source: 1997 statistics on members of the Swiss
Medical Association (FMH).
384 Schweizerischer Verband
Kind und Spital.
[385]
See in this connection “Mortality and infant mortality in Switzerland
1986-1992”, OFS, Bern, 1998.
[386] “Des données pour agir” (Data for action), report on women’s health in Switzerland, FNRS, Bern, 1996.
[387] In the canton of
Geneva, a member of the youth health service visits all fourth and sixth-year
primary classes (three hours a year
for each class), second-year junior
secondary classes (four hours a year) and second-year senior secondary classes
(two hours a year).
This service comprises 20 women and 4 men who have been
trained in medicine, care for the sick, psychology and education. In the
canton
of Neuchâtel, the school doctor or some other specialist deals with sex
education questions in fifth, seventh and ninth-year
classes. The canton of
Vaud has given the Pro Familia association responsibility for sex education in
all schools in the canton.
In Valais, the seven family planning services deal
with the subjects of health education and sex education for first-year secondary
classes.
388 These services may also function at the
supra-cantonal level, for example the joint services for Lucerne, Obwalden and
Nidwalden.
These services are also decentralized in certain cantons; Ticino has
4 pregnancy advisory services on, Zürich 10, Solothhurn
4, St. Gallen 2,
Valais 7, etc.
389 In Basel-Stadt and in Geneva,
simple gynaecological consultations are available to young women free of charge
or at reduced prices.
[390] “Des données pour agir”, report on womens’ health in Switzerland, FNRS, Bern, 1996, pp. 34 et seq.
[391] Young people “close to risk” may be defined as young people with risk behaviour, young people in an environment with a high prevalence of HIV and who expose themselves to risks, young people who lead a marginal, unstructured life, and young people who are socially disadvantaged.
[392] For example, Zug, Zürich, Valais and Vaud.
[393] AIDS & KIND,
Schweiz. Stiftung für Direkthilfe an betroffene Kinder,
Seefeldstrasse
219, 8008 Zürich.
[394] Experience shows
that better results are achieved through activities undertaken by local
actors.
395 The “Agenda 21” adopted at the
Rio Summit contains a chapter on the protection and promotion of health. The
United
Nations gave WHO responsibility for the attainment of these
objectives. The States members of WHO’s European region were invited
to
prepare their own national plans of action by 1997.
[396] See commentary relating to Convention, article 24, above.
[397] See commentary relating to Convention, article 23, above.
[398] FF 1999 3220
et seq. See in this connection “Der Neue Finanzausgleich zwischen
Bund und Kantonen. Schlussbericht der vom Eidg. Finanzdepartement
und der
Konferenz der Kantonsregierungen gemeinsam getragenen
Projektorganisation”, Bern/Solothurn,
31 March 1999.
399 RS 211.222.338.
[400] CC, art. 302 (1).
[401] CC, art. 277, and ATF 117 II 372.
[402] See commentary relating to Convention, article 6.
[403] See also commentary relating to Convention, article 26.
[404] FC, art. 62 (2).
[405] The possibility for children of any denomination to attend public school is covered by the general guarantee of freedom of belief and religion under article 15 of the Constitution.
[406] ATF 3 706; JAAC 1948-50 (19/20), No. 67; ATF 107 1a 261 et seq.; JAAC 1983 (47), No. 32.
[407] FC, arts. 62-63.
[408] Contracts Code, art. 344 et seq.
[409] RS 416.0.
[410] In particular, the Federal Sports College at Macolin. RS 415.0 and RS 415.1.
[411] RS 411.9.
[412] The canton of Ticino has not signed for two reasons: the school year is less than 38 weeks long and the age for starting compulsory education is under six.
[413] Grob, Alexander (ed.), Kinder und Jugendliche heute: belastet - überbelastet? Beschreibung des Alltags von Schülerinnen und Schülern in der Schweiz und in Norwegen, Coire/Zürich 1997.
[414] FC, art. 63 (1).
[415] RS
412.10.
[416] On the subject of women and vocational training, see articles in Frauenfragen 2/1998; Report concerning postulate presented by Ruth Grossenbacher, “Formation et perfectionnement professionnels des femmes”, Federal Office for Vocational Training and Technology (OFFT) (ed.), Bern 1998.
[417] RS 412.10.
[418] As of the last census, in 1990, the official languages were distributed as follows in the resident population as a whole: German, 63.6 per cent; French, 19.2 per cent; Italian, 7.6 per cent; and Romansh, 0.6 per cent. There are four traditionally recognized linguistic regions. Each canton determines its own official language or languages. Three cantons are bilingual and Graubünden is trilingual. In Graubünden, the communes have full autonomy to determine their official languages.
[419] ATF 100 Ia 465.
[420] See commentary relating to Convention, articles 18, 22 and 30.
[421] Recommendations
adopted by the CDIP on 24 October 1991.
422 Response
by the Federal Council, dated 31 May 1999, to a parliamentary question from
National Councillor Cécile Bühlmann
(98.3656): separate classes for
Swiss and foreign school students.
423 FC, art.
8.
424 Federal Commission against Racism, “Des
classes séparées?”, August
1999.
425 This is the case in Schaffhausen,
AppenzellInnerrhoden, St. Gallen, Glarus, Bern, Jura and
BaselStadt.
426 See commentary relating to Convention,
article 23.
427 See, for example, Gérard
Bless, “Special Education in Switzerland”, in Cecil R. Reynolds
and Elaine Fletcher-Jantzen
(eds.), Encyclopaedia of Special Education,
second edition, New York 1999.
[428] The canton of Uri was the first canton in central Switzerland to enshrine in law the principle of support for gifted children. The new education act of the canton of Lucerne also states that gifted children have the same right to support as weaker students. Other cantons make provision for express streams or at the very least have special guidelines for motivating gifted children within the normal school framework.
[429] Survey carried
out for the forty-second session of the International Conference on Education,
on the eradication or drastic reduction
of illiteracy, reply by Switzerland,
secretariat of the Swiss Conference of Cantonal Directors of Education (CDIP),
Bern.
[430] Literacy,
Economy and Society, Results of the First International Adult Literacy Survey,
OECD, 1995.
[431]
“Recommandations concernant l’encouragement de
l’échange en Suisse et à l’étranger
dans le
domaine de l’éducation et de la formation (élèves,
apprenti(e)s et enseignant(e)s)”,
18
February 1993.
432 See, for example, the
Compulsory Education Act of the canton of Berne, article 2,
19 March 1992.
[433] RS 413.11.
[434] As in AppenzellInnerrhoden, BaselStadt and Obwalden, for example.
[435] RS 446.1.
[436] The most important results of this study are reported in Hüttenmoser, Marco; DegenZimmermann, Dorothee, Lebensräume für Kinder. Empirische Untersuchungen zur Bedeutung des Wohnumfeldes für den Alltag und die Entwicklung der Kinder. Bericht Nr. 70, NFP Stadt und Verkehr. Edition Soziothek. Köniz 1995. The results of a control survey carried out in a rural area are reported in Hüttenmoser, Marco, Kein schöner Land. In “und Kinder”, No. 54, pp. 21-50.
[437] Regula Begert and Matthias Steinmann, “Kinder und Medien in der Schweiz - eine Studie des SRG Forschungsdienstes”, Bern 1997.
[438] Seventy-eight per cent of children said they preferred to play outdoors.
[439] Established in December 1982.
[440] RS 142.30.
[441] RS 142.301.
[442] RS 291.
[443] RS 0.211.231.01.
[444] RO 1999, 2262.
[445] RS 142.311.
[446] RS 822.11.
[447] RO 1999 2302.
[448] In September 1999, the ODR drew up a new directive concerning the handling of RMNA requests for asylum (Asylum Directive 23.2, of 20 September 1999). This Directive, which entered into force on 1 October 1999, is intended to inform the federal and cantonal authorities about certain procedural aspects concerning RMNAs as well as their specific functions in this connection.
[449] RS
142.20.
450 RS 0.518.12; 0.518.23; 0.518.42;
0.518.21.
451 RS 0.518.521;
0.518.522.
452 Adopted at Rome in June 1998.
[453] RS 0.518.522.
[454] RS 510.10.
[455] RS 511.11.
[456] Young persons in educational work establishments, which receive delinquents from 17 to 25 years of age, are in daily contact with young adults - a “procedure” that may be regarded as being of benefit to the child.
[457] FF 1999 1787 et seq.
[458] See commentary relating to the Convention, article 1.
[459] As is the case at the present time, it will be achieved essentially through measures set out in the Civil Code for the protection of the child. Reference will therefore also be made to protection measures.
[460] Criminal judgements of minors in 1997, Actualités OFS, Neuchâtel 1999.
[461] RS 741.10.
[462] RS 812.121.
[463] See also ATF 121
I 208.
464 See also the case law of the European Court
of Human Rights.
[465] ATF 107 Ia 256.
[466] ATF 107 Ia 256; 116 Ia 147.
[467] ATF 119 Ia 508.
[468] FF 1997 I pp. 1
et seq., p. 189.
469 FF 199 2083 and the
Federal Council’s reply to the Berberat motion.
[470] FF 1999 2219.
[471] FF 1999 2083 et seq.
[472] See also in this connection the position adopted by the Federal Council on 13 March 2000 concerning the Berberat motion, No. 99.3637, of 22 December 1999.
[473] ATF 121 I 208,
preambular paragraph 4 (b).
474 See the Netherlands,
judgement of 24 August 1993, Series A No. 267, para.
38.
475 RS 173. 110.
476 See
FF 1999 3667 and the stand taken by the Federal Council on 13 March 2000
concerning the Berberat motion, No. 99.3627, of 22
December
1999.
477 Of 13 March 1964, RS 822.11.
[478] Of 8 October 1971, RS 822.21.
[479] Of 20 March 1981, RS 832.20.
[480] Of 23 September 1953, RS 747.30 and RS 747.301.
[481] RS 822.31.
[482] Of 19 April 1978, RS 412.10.
[483] RS 915.1.
[484] Of 19 March 1976, RS 819.1.
[485] RS 823.21.
[486] RS 210.
[487] RS 220.
[488] RS 311.0.
[489] FF 1999 567.
[490] FF 2000 292.
[491] RS 0.103.1.
[492] See observations
below on limited possibilities of supervision due to privileges and
immunities.
493 RS 0.191.01.
[494] RS 0.101.02.
[495] “Alcohol, tobacco and illegal drugs in Switzerland (1994-1996)”, ISPA with the support of the OFSP, Bern, 1997.
[496] RS 812.121.
[497] See commentary relating to Convention, article 24.
[498] For example, Zug, Thurgau, Vaud, Neuchâtel and Fribourg.
[499] RS 0.812.121.0.
[500] RS 0.812.121.01.
[501] RS 0.812.121.02.
[502] See the Federal Act concerning Action to Combat Money Laundering in the Financial Sector of 10 October 1997, CP, article 260, relating to criminal organizations and CP, article 305 bis, relating to money laundering.
[503] Message concerning federal laws on the surveillance of postal correspondence and telecommunications, and on secret investigation, FF 1998 IV 3689.
[504] “Alcohol, tobacco and illegal drugs in Switzerland (1994-1996)”, ISPA with the support of OFSP, Bern, 1997.
[505] See B.J. Jacquat and Y. François, “Konsum psychoaktiver Substanzen bie Schülern in der Schweiz”, SFA, 1999.
[506] An amendment of
the Federal Act concerning Alcohol (Lalc) of 21 June 1932 entered into force on
1 July 1999.
507 Federal Act concerning Radio and
Television (LRTV), article 18, of 21 June 1991 (RS 784 40) and Lalc,
article 42 (b), of 21 June
1932 (RS
680).
[508] RS
817.02.
[509] See Lalc,
articles 39 et seq.
510 Some cantons have set
age limits only in the legislation on hotels and bars, while others have also
introduced regulations on this
subject in relation to retail trade.
[511] Federal Act concerning Radio and Television (LRTV), article 18, of 21 June 1991 (RS 784.40).
[512] See commentary relating to Convention, article 19.
[513] Council of Europe, Committee of Ministers, Recommendation No. R (89) 9.
[514] Council of Europe, Committee of Ministers, Recommendation No. R (95) 13.
[515] See below, for the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, commentary relating to Convention, article 35.
[516] See commentary relating to Convention, article 33.
[517] See commentary relating to Convention, article 27.
[518] See commentary to Convention, articles 19, 26 and 27.
[519] See the United
Nations protocols of 12 November 1947, with regard to international conventions
ratified by Switzerland on:
Suppression of the white slave traffic (18 May 1904; without obligation to enact criminal provisions; RS 0.311.31);
Suppression of the white slave traffic (4 May 1910; RS 0.311.32);
Suppression of the traffic in women and children (30 September 1921; an additional League of Nations convention which expands the suppression of the traffic in children of both sexes and sets the age limit at 21 years; RS 0.311.33);
Suppression of the traffic in women of full age (11 October 1933; RS 0.311.34).
The United Nations Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others
(21 March 1950),
which replaces the above-mentioned conventions, has not been
ratified.
The Federal Act of 30 September 1925 on the Suppression of the
Traffic in Women and Children was enacted with a view to ratifying
the
conventions of 1910 and 1921 (see CP, art. 398 (2) (m)).
[520] See also statistical table 2 in the annex (with detailed figures on other languages and religions).
[521] See statistical table 1 in the annex.
[522] The adoption, on 10 March 1996, of former article 116 of the Constitution allowed Romansh to become a national and official language of Switzerland - alongside German, French and Italian - in the relations of the administration and the judicial authorities with Romansh citizens. Thus, the Constitution and a special selection of laws and international treaties are now published in Romansh. A first decree in Romansh was issued by the Federal Court in June 1996.
[523] FC, art. 70.
[524] Ibid.
[525] FF 1997 II 301-334.
[526] RS 441.3. FF 1995 II 1185-1204.
[527] G. Malinverni, “La liberté de la langue”, in Commentaire de la Constitution fédérale de la Suisse, I, Basel, p. 9.
[528] ATF 122 I 236.
[529] See W.Leimgruber, Th. Meier, R. Sablonier, “Das Hilfswerk für die Kinder der Landstrasse”, a historical study based on the files of the Pro Juventute Foundation in the Federal Archives, Bern, 1998. On the travellers minority, see also article 30.
[530] W. Leimgruber, Th. Meier, R. Sablonier, op. cit.
[531] See commentary relating to Convention, articles 18 and 28.
[532] It was attended by the main groups concerned: representatives of the diplomatic community, of schools, of the scientific and economic communities as well as of immigrant associations and foreign parents. Its work confirmed the importance of such courses as much for the society and economy of the host country as for the unity of the migrant families and the development of the children.
[533] Geneva (classes
in 9 languages), Lucerne, Schwyz, Basel-Stadt and Zürich incorporate such
teaching either wholly or partially
into the compulsory schooling of foreign
children. Graubünden had a pilot project from 1996 to 2000 at Samedan
whereby all
foreign children, from kindergarten to fourth grade, received
first-language support at a rate of one lesson a week.
[*] Available from the Committee
secretariat.
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