SWITZERLAND

CERD A/53/18 (1998)

52. The Committee considered the initial report of Switzerland (CERD/C/270/Add.1) at its 1248th and 1249th meetings, on 3 and 4 March 1998. At its 1268th meeting, on 17 March 1998, it adopted the following concluding observations.

Introduction

53. The Committee welcomes the initial report submitted by Switzerland and the comprehensive introductory presentation made by the delegation, as well as the opportunity thus offered to begin its dialogue with the State party. It expresses to the State party satisfaction regarding the quality of the report, although it regrets that the report was not submitted by the due date.

Positive aspects

54. It is noted with appreciation that the State party has established a Federal Commission against Racism to promote better understanding between persons of different races, colours, and ethnic or religious origins and to combat all forms of direct or indirect racial discrimination. The Committee welcomes the initiatives taken by this Commission in the sphere of education and information.

55. The adoption of article 261 bis of the Swiss Criminal Code, which is intended to give effect to articles 4 and 5 (f) of the Convention, is welcomed.

Principal subjects of concern

56. While the Committee takes note of the draft reforms of the Federal Constitution, it expresses its concern about the lack of comprehensive legislation to combat discrimination based on race, colour, descent, or national or ethnic origin. Such legislation should include measures to combat racial discrimination in labour relations and housing and, more generally, racial discrimination by any person, group or organization as required by article 2, paragraph 1 (d), of the Convention.

57. While noting that the current immigration policy of Switzerland may be subject to revision, the Committee expresses its disquiet at the current so-called three-circle-model immigration policy, which classifies foreigners on the basis of their national origin. The Committee considers the conception and effect of this policy to be stigmatizing and discriminatory, and therefore contrary to the principles and provisions of the Convention. Other areas of special concern are the extensive system of police control of foreigners as well as the naturalization policies and procedures, which are deemed too protracted and selective. Concern is also expressed about serious incidents of police brutality in dealings with persons of foreign ethnic or national origin.

58. The restrictions on freedom of movement imposed on the Jenisch population and on the Sinti and Roma minorities, as well as tendencies to discredit them, are matters of concern.

59. Incidents of xenophobia, anti-Semitism, racial discrimination and racial violence occurring in the State party as well as the dissemination of racist and xenophobic ideas also occasion concern. Moreover, article 4 (b) of the Convention is not fully implemented, notably as regards participation in illegal and prohibited organizations.

Suggestions and recommendations

60. The Committee recommends that the envisaged constitutional reform in the State party more fully reflect the provisions of the Convention. Such reform should entail a clear repudiation of racial discrimination.

61. The State party should give serious consideration to the enactment of a comprehensive law banning discrimination based on race, colour, descent, or national or ethnic origin. Other preventive measures, such as information campaigns, educational programmes and more intensive training programmes for law enforcement officials, in accordance with article 7 of the Convention and general recommendation XIII (42) of 16 March 1993 of the Committee, will strengthen the implementation of the Convention.

62. The Committee urges the State party to review those elements of its current immigration policy that classify foreigners on the basis of their national origin, and recommends that it reconsider the reservation made to article 2, paragraph 1 (a), of the Convention.

63. In the light of article 3 of the Convention and general recommendation XIX, (47) of 17 August 1995, the Committee encourages the State party to monitor all tensions which may give rise to racial segregation and to work for the eradication of any negative consequences that ensue.

64. The Committee recommends that the State party take the necessary steps to implement article 4 (b) of the Convention. The Committee further recommends that the State party include in its next report information on complaints of discrimination under article 4 of the Convention and on actions taken by prosecution authorities and by the competent courts, as well as, where appropriate, on reparation granted to victims.

65. The Committee encourages the State party to contribute to the United Nations Trust Fund for the Programme of Action for the Third Decade to Combat Racism and Racial Discrimination. Furthermore, the Committee expresses the hope that the Federal Commission against Racism will receive adequate resources to enable it to carry out its tasks effectively and that other organizations and institutions dealing with race relations also receive the necessary support.

66. It is noted that the State party has not yet made the declaration provided for in article 14 of the Convention; some members of the Committee request that the possibility of such a declaration be considered.

67. The Committee suggests to the State party that the report and these concluding observations be widely distributed to the public in the various official languages of Switzerland. The Committee recommends that the State party's second periodic report, due on 29 December 1997, which may be of an updating character, address all the points raised in the present concluding observations.

CERD A/57/18 (2002)

242. The Committee considered the second and third periodic reports of Switzerland (CERD/C/351/Add.2), which were due on 29 December 1997 and 29 December 1999 respectively, as well as a supplementary report at its 1495th and 1496th meetings (CERD/C/SR.1495 and 1496), held on 4 and 5 March 2002. At its 1520th meeting (CERD/C/SR.1520), held on 21 March 2002, it adopted the following concluding observations.

A. Introduction

243. The Committee welcomes the detailed report submitted by the State party, the contents of which fully correspond to the Committee's revised reporting guidelines (CERD/C/70/Rev.5). The Committee appreciates the detailed answers to concerns expressed and recommendations made in its previous concluding observations, as well as the additional substantial oral information provided by the delegation in response to the questions asked. The Committee expresses its appreciation for the frank and constructive dialogue with the representatives of the State party.

B. Positive aspects

244. The Committee welcomes the progress made by the State party since the consideration of its initial report (CERD/C/270/Add.1) in significantly advancing the implementation of the provisions of the Convention. In this context, it welcomes the fact that the New Federal Constitution, which entered into force in January 2000, incorporates the principle that all human beings are equal before the law (art. 8).

245. The Committee notes with satisfaction that a number of recent reforms of cantonal constitutions have included provisions prohibiting discrimination.

246. The Committee also notes that the Convention forms an integral part of the Swiss legal system, that some of its provisions may be directly invoked before the courts and that the Federal Court has referred to the provisions of the Convention on several occasions.

247. The Committee welcomes the information provided by the State party on the number of cases dealt with by the courts under article 261 bis of the Penal Code, which penalizes public incitement to racial hatred and discrimination and the spreading of racist ideas.

248. The Committee expresses satisfaction at the establishment of a fund of 15 million Swiss francs aimed at financing projects to combat racism, which include the creation of a nationwide network of advisory centres for victims of racial discrimination. It further welcomes the creation of a Service to Combat Racism aimed, inter alia, at coordinating measures to combat racism, anti-Semitism, xenophobia and extremism within the federal administration and the cantons.

C. Concerns and recommendations

249. The Committee wishes to emphasize that despite the federal structure of the State party, which may render more difficult the full application of the State party's obligations under the Convention in all parts of its territory, the Federal Government has the responsibility of ensuring the implementation of the Convention on its entire territory and must ensure that cantonal authorities are aware of the rights set out in the Convention and take the necessary measures in order to respect them.

250. The persistence of hostile attitudes towards black people, Muslims and asylum-seekers in Switzerland is of utmost concern to the Committee. The Committee recommends that the State party continue its efforts to prevent and combat such attitudes, including through information campaigns and education of the general public. Further, in the light of its general recommendation XIX, the Committee encourages the State party to continue monitoring all tendencies which may give rise to racial or ethnic segregation and endeavour to combat the negative consequences of such tendencies.

251. The Committee is concerned at expressions of xenophobic and racist attitudes in naturalization procedures, particularly those subject to popular vote. It is also concerned that according to legislation still in force decisions taken in accordance with such procedures are not subject to legal review. The Committee is of the view that the right to appeal against decisions, in particular arbitrary or discriminatory ones, in matters relating to naturalization has to be made an integral part of the policy on naturalization, currently in the process of being amended. Further, the State party should endeavour to avoid statelessness, particularly of children, on its territory, bearing in mind article 38 (3) of the new Federal Constitution, which stipulates that the Confederation "shall facilitate the naturalization of stateless children".

252. While welcoming the position of the Federal Council according to which segregated schooling would be contrary to the Federal Constitution, the Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination, the Committee expresses concern about recent moves towards the establishment of separate classes for foreign pupils in some cantons. It is the view of the Committee that segregated schooling may only in exceptional circumstances be considered as being in conformity with article 2 in conjunction with article 5 (e) (v) of the Convention.

253. Allegations of police abuse and excessive use of force against persons of foreign origin during arrest or in the course of deportations are also of concern. The Committee notes that many cantons do not have independent mechanisms for investigation of complaints regarding violence and abuse by the police, and that sanctions against responsible officers have been rare. The State party should ensure that independent bodies with authority to investigate complaints against police officers are established in all cantons. Efforts should also be made to recruit members of minority groups into the police and to provide sensitization and training of police officers on issues of racial discrimination.

254. While commending the important work undertaken by the Federal Commission against Racism, the Committee notes that the Commission has limited powers of action. The State party is invited to strengthen the powers and means of the Federal Commission against Racism. The present exercise to consider setting up a national human rights institution should take note of the criteria for setting up such institutions established by the General Assembly in its resolution 48/134 (the Paris Principles).

255. Noting that the former "three-circle" immigration policy of Switzerland which classified foreigners according to categories of national origin and capacity for integration was abandoned and replaced by a binary admissions system and in view of the dialogue held with the Swiss delegation in this respect, the Committee invites the State party to consider if the reservation to article 2 (1) (a) of the Convention is still necessary or may be withdrawn.

256. The Committee is also concerned about the situation of Travellers, including Roma and Jenish, in Switzerland and hopes that efforts will continue to be made to improve their living and working conditions.

257. The Committee requests information about the legislation in force prohibiting racial discrimination within the private sector in fields such as employment, housing, education, health and access to public places.

258. The Committee takes note of the proceedings under way at the level of the executive organs with a view to formulating the optional declaration provided for in article 14 of the Convention and encourages the State party to complete these proceedings.

259. The Committee recommends that the State party take into account the relevant parts of the Durban Declaration and Programme of Action when implementing the Convention in the domestic legal order, in particular in respect of articles 2 to 7 of the Convention, and that it include in its next periodic report information on action plans or other measures they have taken to implement the Durban Declaration and Programme of Action at national level.

260. The Committee recommends that the State party submit its fourth periodic report jointly with its fifth periodic report, due on 29 December 2003, that it be an updating one and that it addresses all points raised in the present observations.