Committee on Enforced Disappearances Asks Switzerland about Legal Definitions, Adoptions from Sri Lanka and the National Human Rights Institution
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Switzerland on measures taken to implement the International Convention for the Protection of all Persons from Enforced Disappearance.
Committee Experts expressed appreciation for Switzerland’s engagement in favour of the Convention and steps taken to implement and promote it, notably its provision of assistance to Mexico. Turning to the definition of enforced disappearances, the Committee had difficulty understanding the discrepancies between the definition set forth in the Convention and those used in Swiss legal texts. Experts notably sought clarification with regards to the expression “for a prolonged period of time”. Recalling that Switzerland had said it was aiming to have the national human rights institution up and running this year, they asked for information on the timeline changes.
Experts pointed out that the State party’s statement that there were “no unofficial sites of deprivation of liberty" was redundant: if such sites existed, they would be unofficial, as their existence would be secret. To address this issue, authorities conducting searches must have access to any place of detention and any other place where there were reasonable grounds to believe that the missing person was present. Was this the case in Switzerland? On the right to truth, the Committee Experts said Switzerland had the technical, diplomatic and financial means to uphold this principle in its management of the matter of adoptions from Sri Lanka.
Corinne Cicéron Buhler, Ambassador and Director of the Directorate of Public International Law at the Federal Department of Foreign Affairs of Switzerland, said that, currently, no case of enforced disappearance within the meaning of the Convention had been reported at the federal or cantonal level. A decentralised search network between the Confederation and the cantons had been set up specifically to ensure the search for persons potentially victims of enforced disappearances. Some organizations may access establishments of deprivation of liberty spontaneously and without notice under federal law. Relatives of victims were themselves considered as victims of enforced disappearance. The services provided for by Swiss law included, in particular, advice and support in medical, legal and psychological matters, as well as the payment of compensation or reparations.
The delegation said the bill establishing a national human rights institution was before the Parliament, and the goal was for it to be operational in 2022-2023. It would be in line with the Paris Principles. The Government had sought to ensure consistency among the different definitions, and an explanation had been outlined in the Federal gazette to guide interpretation of the law. Delegates agreed that detention or deprivation of liberty could take place anywhere, including hotel rooms for instance. Such places could be visited if there were grounds to believe they could be used as unofficial sites of deprivation of liberty, they assured.
Concerning the expression “for a prolonged period of time”, the delegation said it referred to a time period set out in legal rules. If the detention from the outset was illegal, the time count started from the very moment of apprehension. On the issue of children adopted from Sri Lanka, delegates explained that a report had been drawn up, following which a number of measures had been implemented, as part of a long process of addressing the issues identified, which was not yet completed. The Government was reforming the inter-country system of adoption and reviewing conditions for annulling adoptions and accessing victim support services. A group of experts had been given a broad mandate to review the law on adoption.
In concluding remarks, Ms. Cicéron Buhler, thanking all those who had made this dialogue possible, said it had been an in-depth discussion. Switzerland had ratified the Convention in 2016 and the dialogue had raised the awareness of the authorities involved. It was steadfastly committed to combatting enforced disappearances at the domestic and international levels. Even if Switzerland had no experience of enforced disappearances, it was not resting on its laurels, she assured.
Matar Diop, Committee Vice-Chairperson, thanked the State party for holding the dialogue online despite the constraints this created. Everyone had a role to play in implementing the Convention. The Committee was counting on Switzerland’s commitment and it could count on the Committee’s support.
The delegation of Switzerland included representatives from the Federal Department of Foreign Affairs, the Latin Conference of Heads of Departments of Justice and Police, the Latin Conference of Heads of Departments competent in Asylum and Migrants, the Latin Conference of Directors of Military Affairs and Civil Protection, the Federal Department of Justice and Police, the Military Court of Cassation, the Public Ministry of the Confederation and the Permanent Mission of Switzerland to the United Nations Office at Geneva.
All documents related to the twentieth session of the Committee can be found here. Meeting summaries of its public meetings can be found here. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.
The Committee will next meet in public at 4 p.m. on Monday, 19 April, to consider a report containing additional information submitted by Colombia under article 29 (4) of the Convention (CED/C/COL/AI/1).
Report
The Committee has before it the initial report of Switzerland (CED/C/CHE/1).
Presentation of the Report
CORINNE CICÉRON BUHLER, Ambassador and Director of the Directorate of Public International Law at the Federal Department of Foreign Affairs of Switzerland, pointed out that she was accompanied by a delegation from several federal government departments, criminal prosecution authorities as well as the cantons. Recalling that Switzerland’s commitment to protecting human rights was deeply rooted in its history, tradition, legal order and political system, she said Switzerland had decided to submit to both the individual communication procedure and the communication procedure from another State party. Switzerland was actively committed to collaborating with the United Nations on the protection of human rights during the COVID-19 pandemic, in particular through its responses addressed to the holders of Special Procedure mandates, she added.
Ms. Cicéron Buhler said that, currently, no case of enforced disappearance within the meaning of the Convention had been reported at the federal or cantonal level. There were four fundamental pillars to the implementation of the Convention in Switzerland. The first pillar was related to legal measures taken explicitly in domestic law in order to implement the Convention. Switzerland was a monist State and two new pieces of legislation had entered into force at the same time as the Convention: the federal law of 18 December 2015 on the Convention and the Federal Council ordinance relating thereto. The crime of enforced disappearance had also been added to the Swiss penal code as well as to the military penal code and military criminal procedure.
The second pillar concerned the decentralised search network between the Confederation and the cantons, which had been set up specifically to ensure the search for persons potentially victims of enforced disappearances. The network was made up of a federal coordination service and a coordination service per canton. Relevant information and request forms were available on the website of the Federal Office of Police. To date, seven requests concerning a possible enforced disappearance had been submitted by relatives via the network. However, none of these requests met the conditions for launching a search within the network. Citizens easily confused possible enforced disappearances with cases of "disappearance of persons" without State intervention.
Turning to the third pillar, access to establishments of deprivation of liberty, Ms. Cicéron Buhler said some organizations may access such places spontaneously and without notice under federal law. These were the National Commission for the Prevention of Torture, the European Committee for the Prevention of Torture and the Sub-Committee for the Prevention of Torture. Written or oral contacts between a prisoner and these institutions could in no case be subject to control. As for the services and persons designated within the framework of the network, they had unlimited access to places of detention and to any place where there were reasons to suppose that there was a missing person. At the same time, some cantons had extended the right to inspect places of detention without notice, in particular by granting it to certain cantonal supervisory commissions or authorities.
Finally, the fourth pillar was that of the protection of rights of victims in Switzerland. Relatives of victims were themselves considered as victims of enforced disappearance. The services provided for by Swiss law included, in particular, advice and support in medical, legal and psychological matters, as well as the payment of compensation or reparations.
Questions by the Committee Experts
MONCEF BAATI, Committee Co-Rapporteur for Switzerland, welcoming the numerous delegation members from Switzerland, noted with appreciation the involvement of civil society in the drafting of the report and the State party’s efforts to disseminate the Convention. All stakeholders needed to combat the crime of enforced disappearances, he said.
The Swiss Government had informed the Committee that a new national human rights institution was to become operational in 2021. Could the delegation provide an update on developments?
Had the Swiss authorities considered the pandemic as a force majeure in managing places of deprivation of liberty? The Co-Rapporteur asked for information on the way in which the proportionality of limitations to fundamental rights was assessed. He also asked if a one-year sentence was really a proportionate sentence for a crime as appalling as enforced disappearance.
He inquired about the double definition of enforced disappearance, notably to the reference to the “intention to remove an individual from the protection of the law”. Could the delegation elaborate on its understanding of the wording and its compliance with article 2 of the Convention?
The Committee would welcome additional information on the State party’s understanding of State responsibility with regards to enforced disappearance, as well as on training programmes it had rolled on this matter. How was the punishable nature of an act determined under the military code?
OLIVIER DE FROUVILLE, Committee Co-Rapporteur for Switzerland, expressed appreciation for Switzerland’s engagement in favour of the Convention and steps taken to implement and promote it, notably its provision of assistance to Mexico.
He asked if the new national human rights institution would be competent to receive individual complaints. Turning to the definition of enforced disappearances, the Committee had difficulty understanding the discrepancies between the definition set forth in the Convention and those used in Swiss legal texts. Where did they come from? What purpose did they serve?
The Co-Rapporteur notably sought clarification with regards to the expression “for a prolonged period of time”. Could the delegation reassure the Committee that explanations provided in paragraph 30 of the report must be considered as an integral, official part of the legal definition of the crime of enforced disappearances?
Noting that no order or instruction from other public authorities could be invoked to justify a crime of enforced disappearance under Swiss law, Mr. de Frouville said the only thing that came close to this rule for civilians was the principle of liability by omission. Was such a form of responsibility by omission sufficient to fill the absence of responsibility of hierarchical superiors for civilian superiors?
According to information provided by the State party, it seemed that Swiss law provided for the command responsibility of military superiors, including when the crime of enforced disappearance did not amount to a crime against humanity. On the other hand, there was no command responsibility foreseen for non-military superiors when the disappearance did not amount to a crime against humanity. He requested the delegation to comment on this matter.
Replies by the Delegation
The delegation said the bill establishing a national human rights institution was before the Parliament, and the goal was for it to be operational in 2022-2023. It would be in line with the Paris Principles. It would be independent, pluralistic and would receive a subsidy from the Federal Government. While it would have a broad mandate, including awareness-raising, it would not undertake administrative duties such as mediation nor would it process individual cases or have a monitoring mandate.
Any restrictions on fundamental rights must be grounded in law, as per the Swiss Constitution, which also outlined additional criteria, the compliance with which could be verified at any time by a judge.
Turning to the definition of enforced disappearances, a distinction should be drawn between the administrative and criminal definitions. The definition included in the Convention had been crafted to reach international agreement, and diplomats had used constructive ambiguity. There was a principle in criminal law that prevented such ambiguity: nulle crimen sin lege, in other words one cannot be punished for doing something that is not prohibited by law. This principle was enshrined in the International Convention on Civil and Political Rights and the European Convention on Human Rights, delegates stressed. The Government had sought to ensure consistency among the different definitions, and an explanation had been outlined in the Federal gazette to guide interpretation of the law, delegates assured.
Concerning the expression “for a prolonged period of time”, it referred to a time period set out in legal rules. If the detention from the outset was illegal, the time count started from the very moment of apprehension.
Responding to the question about sentencing, delegates said the Swiss system was characterised by a very broad range of possible sentences; Swiss legal texts did not outline detailed and tight sentences as was the case in France for instance. In determining sentences, courts considered the seriousness of the offences, the motives and aims of the perpetrators, and other criteria and aggravating circumstances, such as murder. A person found guilty of enforced disappearances and a related murder faced a minimum sentence of 10 years, for instance.
On command responsibility, steps had been taken to cover all cases involving non-military superiors, delegates assured. The military received training on human rights, including on enforced disappearances; all military personnel were expected to have knowledge of criminal acts.
Follow-up Questions by the Committee Experts
OLIVIER DE FROUVILLE, Committee Co-Rapporteur for Switzerland, asked if another institution would carry out the function of monitoring the human rights situation and receiving individual complaints, given that the new national human rights institution would not.
On the definition of enforced disappearances, the inclusion of an intentional element made proving the offence and the prosecution more difficult, notably when there were several individuals involved.
Why did the State party choose to subject certain acts of enforced disappearances to military jurisdiction? The Committee had a General Comment that specifically requested that State parties not do so.
MONCEF BAATI, Committee Co-Rapporteur for Switzerland, recalling that Switzerland had said it was aiming to have the national human rights institution up and running this year, asked for information on the timeline changes.
MOHAMMED AYAT, Committee Chairperson, said the constructive ambiguity in the Convention had been removed by the interpretation of the Committee. The expression “with the intention of” was not in keeping with article 2 of the Convention, he emphasised. This expression made the job of prosecutors harder, which went against the protection of victims.
Follow-up Replies by the Delegation
The delegation of Switzerland said the monitoring and individual complaints reception and processing functions were discharged by other bodies both at the cantonal and federal levels. There was also the European Court of Human Rights and the treaty bodies. This was why Switzerland had not deemed it necessary to entrust the national human rights institution with that role.
Addressing questions and comments on the definition of enforced disappearances, delegates said that Switzerland had favoured consistency between the definition of enforced disappearances as a crime against humanity and enforced disappearances as a regular crime. The Swiss legislation was aligned with the Rome Statute. This was not, however, set in stone. It would always be possible to make changes if the intentional element of the crime of enforced disappearance proved too difficult to prove in court.
Questions by the Committee Experts
OLIVIER DE FROUVILLE, Committee Co-Rapporteur for Switzerland, while underlining that Switzerland’s search network was an innovative measure, noted that there was no centralised registrar nor any centralised search mechanism. He stressed the need to ensure that anyone who may be involved in a reported disappearance did not participate in the related search and was not in a position to interfere with the procedure. In that regard, could the delegation explain when special military prosecutors could be appointed? The Co-Rapporteur asked the delegation to comment on questions raised in several reports about the lack of impartiality or independence of investigations on the police.
The idea of the network was a priori good and could serve as a potential model for other countries with a federal structure. However, the six-day standard seemed too long: in other countries, missing persons were often tortured, and sometimes summarily executed. Would it not be preferable to set the standard at 24 hours, even if it required providing for extensions?
Mr. de Frouville pointed out that the State party’s statement that there were “no unofficial sites of deprivation of liberty" was redundant: if such sites existed, they would be unofficial, as their existence would be secret. To address this issue, authorities conducting searches must have access to any place of detention and any other place where there were reasonable grounds to believe that the missing person was present. Was this the case in Switzerland?
MONCEF BAATI, Committee Co-Rapporteur for Switzerland, welcomed Switzerland's initiative to set up a network involving cantons in searches related to potential cases of enforced disappearance. This measure was all the more important in the absence of a national incarceration register.
There had been several corroborating testimonies and concerns voiced by the Committee against Torture, the Council of Europe Commissioner for Human Rights and Amnesty International about non-refoulement; decisions to return to the border taken without legal basis; and decisions going against the best interests of the child. Could the delegation comment on these allegations which were related to one of the most important provisions of the Convention?
Regarding the suspensive effect of appeals, who had the authority to classify a case as particularly important and what were the criteria on which this decision was based? The Co-Rapporteur wondered if it would not be simpler to respond positively to calls made by Amnesty International, among others, to give appeals a suspensive effect. Turning to diplomatic assurances, he noted that most of the countries with which Switzerland had concluded a mutual legal assistance agreement in criminal matters or a bilateral extradition treaty had a history of enforced disappearance. What was the logic behind this approach?
Replies by the Delegation
Responding to questions about special military prosecutors, the delegation said only where Swiss military personnel were concerned did the case fall within the purview of military jurisdiction.
Regarding the impartiality or independence of investigations on the police, generally the public office of the canton took great honour in upholding these principles by following up on any alleged offence by members of the police force.
The Government had found that closed areas were the most relevant to be considered by the search network. Delegates agreed that detention or deprivation of liberty could take place anywhere, including hotel rooms for instance. Such places could still be visited if there were grounds to believe they could be used as unofficial sites of deprivation of liberty, they assured. Unlimited access extended to all areas where authorities thought a disappeared person may be.
To strengthen the impartiality or independence of the search mechanism, victims and family members had access to the file, and they could participate in hearings and play a role in the investigation process and the determination of the facts.
The principle of non-refoulement could be invoked at any point during extradition proceedings, notably if there was a risk of enforced disappearances. This risk would be considered at any stage, using all the sources available, including reports by non-governmental organizations.
Diplomatic assurances must be provided by the relevant authorities of the concerned State, such as the Ministry of Justice, and be accepted as presented by Switzerland. So far, there had only been one case where the assurances had not been abided by. They concerned procedural guarantees, not the integrity of the person, and had led to Switzerland suspending its extradition cooperation with the concerned State.
Since 2019, asylum-seekers had free access to legal support. Negative decisions could be appealed before federal administrative courts, the decisions of which had a suspensive effect. Diplomatic assurances were not used for asylum claims, as Switzerland temporarily hosted individuals whose asylum claim had been rejected but who could not be sent back.
Follow-up Questions by the Committee Experts
MONCEF BAATI, Committee Co-Rapporteur for Switzerland, requested information about the dry run carried out to test the search network; the application of the Dublin agreement and asylum procedures; and the deadline for searches.
OLIVIER DE FROUVILLE, Committee Co-Rapporteur for Switzerland, sought clarification regarding military proceedings and the appointment of special military prosecutors; the ability of the search network to initiate searches in unofficial places of deprivation of liberty; and asylum procedures concerning unaccompanied minors.
Another Expert asked about command responsibility and the liability of supervisors.
Follow-up Replies by the Delegation
The delegation explained that the search network’s focal point would not conduct all visits themselves, but rather contact police stations, clinics and hospitals.
Under the Dublin agreement, there were criteria used to establish the State responsible for processing the asylum request, delegates recalled. Switzerland was not a member of the European Union, but nevertheless took part in the Dublin system.
The categorisation of countries on which the diplomatic guarantees system was based was regularly re-assessed. Switzerland’s human rights analysis in that context considered the risk of enforced disappearances.
A special military prosecutor was named when there was a complaint about non-proper behaviour of Swiss military personnel or where there were justified concerns about the proceedings.
On command responsibility and the liability of supervisors, delegates explained that, while Switzerland had a special regime for crimes against humanity, there was also the legal concepts of “co-author”, “accomplice”, liability by omission or passive behaviour that violated a duty to act, which could be applied to try supervisors.
While appeals before administrative courts had a suspensive effect, it was not automatically the case for proceedings related to the Dublin agreement, unless a specific request in that regard was granted.
CORINNE CICÉRON BUHLER, Ambassador and Director of the Directorate of Public International Law at the Federal Department of Foreign Affairs of Switzerland , said the Experts’ comments on search deadlines and a 24-hour standard had been noted and would be responded to in writing.
Questions by Committee Experts
MONCEF BAATI, Committee Co-Rapporteur for Switzerland, stressing the importance for people deprived of liberty to inform family members or other people of their situation, asked for details about the 10-day deadline pertaining to provisional arrests and access to an attorney for people deprived of liberty, including on the conditions under which people could be deprived of such access. He also requested information about temporary detention, and who could impose it.
Noting that Switzerland’s definition of a victim was in line with the Convention, the Co-Rapporteur inquired about the process through which victims could seek redress or moral reparations. The way in which the declaration of absence was treated by the State party did not seem fully aligned with the Convention, which notably raised questions related to the best interest of the child.
On the right to truth, Switzerland had the technical, diplomatic and financial means to uphold this principle in its management of the matter ofadoptions from Sri Lanka. Could the delegation comment on the principle of confidentiality as implemented in hospitals?
OLIVIER DE FROUVILLE, Committee Co-Rapporteur for Switzerland, inquired about the State party’s intentions regarding the links between the national preventive mechanism on torture and the national human rights institution.
On the right to remedy, he stressed that it could not be restricted under any circumstances. Could remedies be suspended or postponed? How could remedies be provided quickly by administrative authorities?
Turning to territorial jurisdiction, the Co-Rapporteur sought clarification on the applicability of Swiss laws pertaining to enforced disappearances to persons who had been victims of this crime prior to fleeing to Switzerland.
Turning to the declaration of absence, he said the “risk of death” requirement was problematic: a person could be subjected to enforced disappearance for years without their life being in danger. Had the State party considered implementing a declaration of absence system that was better aligned with the Convention?
The Federal Council had acknowledged shortcomings in its management of the issues of adoptions from Sri Lanka. What were the measures contemplated to ensure that adopted children could find the truth about their origins? What avenues of cooperation with Sri Lanka were being considered?
Replies by the Delegation
Measures were being considered to increase the financial autonomy of the national preventive mechanism on torture. On its independence, delegates recalled that the act establishing it required an independent organizational structure and explained that its links with a federal department allowed it to benefit from additional resources. Experts had found that these links did not affect the mechanism’s independence.
A few hours after an arrest had been carried out, access to an attorney was provided. The jurisprudence of the European Court of Human Rights had established that an arrest could not last for more than a few hours. No one in Switzerland could spend 10 days in detention without access to a lawyer. When the provisional arrest went beyond 10 days, access to a lawyer was not only a right but an obligation.
On the issue of children adopted from Sri Lanka, delegates explained that a report had been drawn, following which a number of measures had been implemented, as part of a long process of addressing the issues identified, which was not yet completed. The Government was reforming the inter-country system of adoption and reviewing conditions for annulling adoptions and accessing victim support services. A group of experts had been given a broad mandate to review the law on adoption.
Turning to the right to truth, delegates said the right of adopted persons to find out their origins was an absolute right. Each canton had established a centre to assist adopted persons seeking their origins, and a protocol had been established with Sri Lanka on the search of parents.
As for redress and moral reparations, victims and their families must lodge a request with cantonal authorities. The relevant federal laws required various levels of proof: for instance, for emergency support, the burden of proof was greater than for long-term assistance. The principle of territoriality was applied for practical reasons as it was more difficult to gather proof related to events that took place abroad.
A victim who had suffered a violation abroad and had no link to Switzerland at the time could not seek protection under the Victims Assistance Act, a central component of which rested on the principle of territoriality. However, they could seek support through the asylum system.
Providing additional information on adoptions, delegates said the use of baby boxes to abandon infants anonymously ran counter to the right of the child to know their origin and violated the mother’s obligation to declare a birth. There were no signs indicating that the use of baby boxes was increasing in Switzerland.
The Government sought to remain in close contact with adopted persons to understand their needs and cater to them. Since last summer, a working group on search of origins had been in place to deal with adoptions from Sri Lanka and other countries.
The declaration of absence, which had been part of the civil code for many years, could facilitate access to various rights, services and procedures, such as divorce, when there was no proof of death. There were no plans to reform the declaration of absence.
The national preventive mechanism on torture could make unannounced visits to places of detention, and also had access to medical files of detainees. Some cantonal authorities also enjoyed an unfettered access to places of deprivation of liberty.
Concluding Remarks
CORINNE CICÉRON BUHLER, Ambassador and Director of the Directorate of Public International Law at the Federal Department of Foreign Affairs of Switzerland , thanking all those who had made this dialogue possible, said it had been an in-depth discussion. Switzerland had ratified the Convention in 2016 and the dialogue had raised the awareness of the authorities involved. It was steadfastly committed to combatting enforced disappearances at the domestic and international levels. Even if Switzerland had no experience of enforced disappearances, it was not resting on its laurels, she assured.
MATAR DIOP, Committee Vice-Chairperson, thanked the State party for holding the dialogue online despite the constraints this created. Everyone had a role to play in implementing the Convention. The Committee was counting on Switzerland’s commitment and it could count on the Committee’s support.
CED21.002E