3. Mr. SØRENSEN said that he wished to amend one of his earlier statements. He had urged Portugal to make a further contribution to the Voluntary Fund for Victims of Torture, unaware that the list of contributions on which he had based his information stopped at September 1997. Since that date the Government of Portugal had contributed a further US$ 10,000 to the fund, which he formally acknowledged.
4. Mr. ROMEDIO (Portugal) assured the Committee that he would communicate all its comments to the competent authorities in his country.
5. The CHAIRMAN thanked the members of the delegation of Portugal for their frank cooperation.
6. The delegation of Portugal withdrew.
Third periodic report of Switzerland (CAT/C/34/Add.6) (continued)
7. At the invitation of the Chairman, Mr. Müller, Mr. Schürmann, Mr. Voeffray, Mr. Walpen, Mrs. von Barnetow Meyer and Mr. Arnold (Switzerland) resumed their places at the Committee table.
8. The CHAIRMAN invited the delegation of Switzerland to reply to the Committee members' questions.
9. Mr. MÜLLER (Switzerland) reiterated that torture was not practised in Switzerland and that the allegations that had been made referred only to minor infractions. In reply to the questions put concerning specific measures taken to punish torture, he recalled that, as indicated in the report, the Swiss Penal Code contained a special section covering everything that might constitute an act of torture. Furthermore, as indicated in the initial report, the Federal Tribunal had clearly stated that torture would never be acceptable in Switzerland and that the prohibition on torture was an integral element of the country's legal system. While the idea that special legislation should be passed making the public aware that the State would never condone torture was quite acceptable, technically speaking every possible aspect of torture was already covered by the Penal Code.
10. A member had said that one of the characteristics of torture was that it was committed by officials or representatives of the State and had asked whether the Swiss legal system took account of that fact. It could be replied that if an official or a police officer committed an act of torture he was guilty not only of assault and battery or murder, for example, but also of abuse of authority in addition to the offence committed. The Penal Code stated in a special provision that, in cases of accumulation, the judge should sentence the offender for the most serious offence and increase the length of the sentence according to the circumstances (with the provisio that the increase must not exceed half the maximum sentence for the offence in question). Moreover, acts of complicity and attempts to commit torture were also covered by the general provisions of the Penal Code. With regard to possible action against police officers and officials, broadly speaking it was of two kinds, judicial and administrative. An administrative inquiry was usually directed by an official, but might be entrusted to an independent person. At the same time, judicial proceedings were instituted, giving rise to a court ruling on the punishable nature of the alleged act. That might be followed by a Federal Tribunal judgement either on judicial review or on public law appeal. Once those remedies had been exhausted, there remained the possibility of appeal to the bodies established by the European Convention on Human Rights.
11. Notification of relatives was almost always guaranteed in practice. The most recent legislation in the cantons had made express provision for the right to notify relatives. In the canton of Bern, counsel did not have the right to attend the initial hearings, but must be notified immediately of a client's arrest.
12. With regard to medical attention, while the Federal Tribunal did not guarantee an absolutely free choice of doctor, everyone had the right to medical treatment if necessary and the Tribunal had also ruled that, in certain circumstances, it might be admissible to authorize a detainee to consult the doctor of his or her choice.
13. In reply to the Chairman's questions, he said that "assault" ("voies de fait") was defined in the Penal Code as physical force, even causing no pain, in excess of what was considered tolerable according to normal practice and social usage, but resulting neither in physical injury nor in damage to health. It was immaterial in what way the victim felt assaulted. With regard to the notion of "illegal constraint", he said that a constraint was illegal if either the means used were illegal, or the purpose was illegal, or if the purpose and the means as such were legal but the combination of the two might be considered illegal. The question was covered by article 180 of the Penal Code.
14. Mr. SCHÜRMANN (Switzerland), referring to the statement in paragraph 13 of the report to the effect that one petition had been settled amicably without being brought before the Court, said that that was not quite correct, since the matter had in fact been raised before the European Court of Human Rights. Since the parties had come to an amicable settlement, however (on the plaintiff's initiative), the Court had not had to give a ruling. The case had concerned the arrest of a drug trafficker in which the European Commission of Human Rights had established that article 3 of the European Convention on Human Rights had been violated. Under the terms of the amicable settlement, the Swiss Government had paid compensation to the plaintiff and the Court had been able to strike the case off its list. As to the case that had been pending before the Commission, proceedings had now been concluded. The case had concerned a Palestinian who had been arrested by the Geneva police and who had alleged that he had been ill-treated. In the view of the Commission, the complainant's allegations had lacked credibility and an in-depth internal inquiry had not dispelled its doubts. There was, therefore, no proof of treatment contrary to article 3 of the European Convention on Human Rights. Since then, in two other matters of a similar nature, the Commission had declared the plaintiffs' allegations inadmissible.
15. Mr. MÜLLER (Switzerland) said that the Federal Commission on Appeals in Asylum Matters was currently composed of five chambers and 22 judges elected by the Federal Council from among independent lawyers or jurists with a thorough knowledge of federal legislation on asylum. Racial discrimination was punishable under article 261 bis of the Penal Code by a maximum of three years' imprisonment or a fine. There were regrettably no statistics at the federal level on penal measures taken against police officers found guilty of ill-treating detainees. Inquiries had been made, however, into the situation in some of the cantons mentioned in paragraph 79 of the report. In Geneva canton, for example, five cases had ended in a conviction and a fine together with disciplinary action (consisting in four cases of a warning and in one case of a weeks' suspension without pay). In Fribourg canton, two cases had been dismissed as the allegations had been judged groundless.
16. Referring to Mrs. Iliopoulos-Strangas's observation that the legislation on asylum did not explicitly mention torture among the criteria for granting asylum, he acknowledged that torture was not mentioned in the Asylum Act, but neither was it mentioned in the 1951 Convention relating to the Status of Refugees. In Switzerland the notion of persecution on such grounds as race, religion, nationality or political opinion had in practice and in law, always been deemed to include the idea of torture. Torture was considered a form of persecution and therefore constituted grounds for granting asylum. Any asylum application alleging the risk of torture was given special consideration by the Swiss authorities. On the strength of its long legal tradition in the area, Switzerland therefore believed itself to comply with international legislation on torture and other cruel, inhuman or degrading treatment or punishment.
17. Noting that one member of the Committee had expressed concern over injections administered to detainees, he emphasized that first of all, there were no military or police physicians in Switzerland: all doctors called on to treat detainees were independent; and the Code of Criminal Procedure ruled out any possibility of injections forming part of the police arsenal. If an injection was administered, it was for purely medical reasons and a doctor might very well be faced with a situation where an injection seemed indicated or even necessary.
18. It was true that the wording of article 3 of the European Convention on Human Rights and that of article 3 of the Convention on torture were not identical, but the case law of the Strasbourg bodies regarding article 3 of the European Convention had de facto instituted the principle of no forcible return (non-refoulement) and there was no basic difference between the two instruments. There had in fact been many cases where the European Commission of Human Rights had found that article 3 of the European Convention had been violated because there had been a risk of torture.
19. The question had been raised of why allegations of ill-treatment were not always investigated automatically. Torture as defined by the Convention could take the form of various offences that were covered by the Swiss Penal Code. Most degrading and inhuman treatment consisted of acts that were automatically prosecuted by the public prosecutor's office; it was only in cases of assault, which was a minor offence, that no action was taken unless a complaint was made.
20. A question had been asked concerning how Switzerland disseminated Human Rights Committee recommendations to the competent authorities. The procedure, by now well established, was as follows: a Swiss delegation that had met with a human rights treaty body presented a detailed report to the Federal Council, which in turn informed the cantonal governments of the Committee's concerns and recommendations and asked them to apprise the responsible departments. The Federal Council might also make inquiries about what action had been taken on the treaty body's recommendations. With regard to the dissemination of Amnesty International reports, which did not have official standing, the Federal Council usually took note of them and, if they were found to contain allegations requiring some intervention or reporting on the Council's part, it obtained information from the bodies concerned within the cantons.
21. Regarding the duration of police custody, the maximum of 96 hours permitted by the European Commission of Human Rights no longer applied in Switzerland: the Code of Criminal Procedure now explicitly provided that police custody was normally for 24 hours. As to incommunication, if that term meant that nobody knew where the detainee was, it was a practice unknown in Switzerland, though if there was a risk of collusion the court could order the application of a stricter regime which, while not depriving the detainee of all rights, would limit his or her contact with the outside world for a certain period.
22. Five persons in Switzerland at the time had been designated in applications for arrest submitted by the international tribunals appointed to try persons for serious violations of humanitarian law committed in former Yugoslavia and in Rwanda. In the case of one Rwandan an extradition order had been issued: the military appeals court having decided in favour of extradition and the decision having been confirmed by the Federal Tribunal, the person had been transferred in order to be brought before the Arusha tribunal. Extradition proceedings instituted against another Rwandan were in progress. Two nationals of the former Yugoslavia had been released for lack of sufficient evidence and a third for health reasons.
23. Not only did Switzerland contribute to the United Nations Voluntary Fund for Victims of Torture, but it also subsidized several non-governmental organizations working in the same field. The Swiss delegation would of course communicate to the competent authorities a recommendation that a further contribution should be made. The question of compensating victims of acts of torture did not arise in Switzerland, where such practices did not prevail. The possibility of compensation certainly existed for cases of ill-treatment, though he could not give any specific examples. The legislation on aid to victims provided for compensation of up to 1,100 Swiss francs for ill-treatment, and an unlimited amount for mental suffering. In several rulings on the implementation of the legislation on aid to victims, the Federal Tribunal had found in favour of the injured parties, judging it, for example, contrary to the aims of the legislation to suspend compensation proceedings and require victims first to bring a civil action themselves.
24. A question had been asked about persons from Kosovo who had reportedly been ill-treated in Ticino canton. He presumed it referred to the two people who had lodged a complaint for ill-treatment and in whose case the Federal Tribunal had ruled in 1997 that there was insufficient evidence to establish that police officers were guilty of inhuman or degrading treatment.
25. The statistics on ill-treatment on file at the Federal Statistical Office covered all ill-treatment, whether by private individuals or by government representatives, so it was not possible to provide the Committee with more specific information on the matter. However, throughout Switzerland the rules of criminal procedure expressly prohibited utilization of evidence obtained by means of torture or ill-treatment.
26. Mr. WALPEN (Switzerland) referred to an observation made by a member of the Committee at the preceding meeting to the effect that, since Switzerland was made up of 26 cantons, the basic problem was to get accepted at the cantonal level the major decisions taken at the federal level. As he himself worked in the field, being the Chief of Police of Geneva, his participation in the Committee's deliberations was evidence that the system worked satisfactorily.
27. With regard to training, Mr. Sørenson's description of the Danish system at the preceding meeting had been very instructive and the Swiss authorities would certainly draw inspiration from it. Training of rank-and-file police in human rights and in measures to combat torture was a relatively new development. Until recently, the police had been given very detailed instruction in law and those courses had been thought to deal satisfactorily with international humanitarian law, human rights and the problem of torture. But since Switzerland had signed a number of international conventions, the issue had come into sharper focus and the police authorities had decided to devote a separate training component to such questions. The Swiss Chiefs of Police Conference had decided to introduce such training for all Swiss police officers. The Swiss Police Institute now held a great many courses at the federal level on, for example, relations between the police and minorities or foreigners, reception of victims, human rights and humanitarian law. Apart from that, each canton organized ad hoc courses in particular areas: he himself, for example, instructed Geneva police officers in police ethics, humanitarian law and the international human rights protection mechanisms. Geneva also regularly called on external collaborators, such as specialists from the Office of the High Commissioner for Refugees (UNHCR), to speak on specific problems. Moreover, medical studies in Geneva included a compulsory course in humanitarian law culminating in an examination. There were no forensic physicians attached to the police force; all of them were members of the University Institute of Forensic Medicine, a completely independent body. The Institute organized training courses for professionals who had to deal with violence, on subjects such as violence towards women or children or violence by agents of the State. Admittedly perfection was never achieved in the area of the prevention of torture; there would never be a faultless match between legal mechanisms and practice and even though Switzerland possessed a wide range of mechanisms abuses could not be completely ruled out. Indeed, the allegations made by non-governmental organizations and private individuals, for example, made one wonder at times whether the legislation was adequate. One case in particular was currently on everybody's mind, although, as it was sub judice, he could say no more about it than that, in his personal opinion, it had made all police officers deeply aware of the issue, and had highlighted the gap that could exist between legal norms and hard reality and the difficulty facing an ordinary police officer in a complex situation involving someone from another country with a different life experience. In such situations the system could break down, and it was for precisely that reason that it had been made obligatory for every police report to include a section entitled "Use of force": any police officer who was obliged to restrain someone - with handcuffs for example - must so indicate in that section, stating why and to what degree force had been used. The report was then submitted to an external, impartial person from the justice administration, who examined all such reports and, in case of doubt, could request additional information. All reports indicating the existence of a complaint or grievance were sent to the Attorney-General, who in Geneva was elected by the people and was not accountable in any way to the executive branch or the legislature. The Attorney-General was the head of the magistrature and the authority responsible for supervising the police. Any individual could, under a special procedure, lodge a complaint and the Attorney-General would give a ruling, thereby providing a channel that straddled the judiciary and the administration. A judicial channel also existed, for the Attorney-General of Geneva had the power to discontinue proceedings, a judicial decision explicitly provided for in criminal procedure, and taken when the situation was not sufficiently clarified for the case to be brought to trial: it meant that the case was left in abeyance and accordingly, if new facts came to light, would be reopened by the judge. The commissioner for ethics referred to previously already existed de facto if not de jure: a far-reaching reform of the Geneva police force was under way and the new regulations would explicitly establish such an institution, which would greatly benefit not only the victims of ill-treatment but also any police officers who might be wrongly accused.
28. In Geneva, penalties could be judicial in nature, since if a complaint was made the examining magistrate began the entire investigation again. A statement made to the police had no procedural validity; the examining magistrate started the whole proceedings again by first asking the person concerned if he or she would confirm the confession made to the police. If the confession was retracted, it was not taken into account. Apart from criminal penalties, there was also a whole range of administrative sanctions. By way of illustration, he cited the case of a policeman who had hit someone without justification and been sentenced to a week's suspension without pay, a punishment with serious financial consequences.
29. Mr. PIKIS asked whether persons accused of an offence had the right to remain silent and whether they were informed of that right, which, under the European Convention on Human Rights, was inseparable from the presumption of innocence. He also wondered whether the fact that most of those who complained of ill-treatment at the time of their arrest or while in detention were foreigners was a cause for concern to the Swiss authorities, and whether the latter considered it merely a coincidence or a phenomenon whose roots were deeper than that.
30. Mr. SØRENSEN asked whether the staff of the various bodies of the Federal Bureau for Refugees received any training in the international rules prohibiting torture.
31. Mr. WALPEN (Switzerland) acknowledged that many of the complaints of ill-treatment were indeed made by foreigners. The cantons commonly named in the various reports on the subject were Geneva, Zurich and Ticino, i.e., border cantons with a very high concentration of foreigners. More than 39 per cent of the population of Geneva, for example, consisted of foreigners. Of the persons arrested, around 60 per cent were foreigners, and many of those were transients. Statistically, therefore, it was understandable that so many complaints came from foreigners. Notwithstanding, some Swiss citizens also complained about police conduct.
32. Mr. MÜLLER (Switzerland) said that the right to remain silent was guaranteed by the legislation. In his oral presentation, he had referred to the Bern Code of Criminal Procedure, which did not differ greatly from the corresponding Geneva Code, and which explicitly recognized detainees' right not to make any statement. But even though the right of those arrested to remain silent was not always respected in practice, things were moving in the right direction: the Commission dealing with the harmonization of criminal procedure in Switzerland would soon be presenting the Government with recommendations aimed at ensuring that the right to remain silent was respected.
33. With regard to instruction on international regulations against torture for the staff of bodies dealing with refugees, he said that the Federal Bureau for Refugees organized regular courses to teach the principles contained in the international human rights instruments, including the Convention against torture. The courses usually lasted between half a day and one and a half days, depending on the category of staff.
34. Mrs. ILIOPOULOS-STRANGAS noted that the delegation of Switzerland had said that the State party was aware of a number of gaps in its current legislation and that there were plans to introduce amendments in order to take better account of the cases of persons who, while not meeting the requisite conditions for the granting of refugee status, were at risk of torture if they were sent back to their countries. She asked whether efforts were being made to find legal or political formulas allowing such persons to enjoy the protection provided by article 3.
35. Mr. VOEFFRAY (Switzerland) said that in considering asylum applications, the authorities checked whether applicants had been personally subjected to threats of torture in their countries. If there was no indication that that was so, the case was reviewed later under the deportation procedure, which was different from the procedure followed in dealing with an application for asylum. If it was found that flagrant and systematic human rights violations took place in countries to which applicants were to be returned, they would not be deported even if they had been unable to prove that they were personally in danger.
36. The CHAIRMAN thanked the delegation of Switzerland for the extremely clear answers it had given to the various questions asked and invited it to join the Committee once more when the public part of the meeting resumed, in order to hear the conclusions and recommendations the Committee had adopted for the attention of the Swiss authorities.
37. The delegation of Switzerland withdrew.
38. At the invitation of the Chairman, the members of the delegation of Switzerland resumed their places at the Committee table.
Conclusions and recommendations of the Committee
39. The CHAIRMAN read out the following conclusions and recommendations of the Committee, in French:
"B. Positive aspects
"D. Subjects of concern
40. Mr. MÜLLER (Switzerland) thanked the Committee for its comments and recommendations and undertook to communicate them to the federal and cantonal authorities.
41. The CHAIRMAN thanked the Swiss delegation for its clear and detailed responses to the Committee's questions and for the spirit in which it had been possible to conduct the dialogue.
42. The delegation of Switzerland withdrew.