1. Views of the State under review concerning recommendations
and/or conclusions, as well as its voluntary commitments
730. The representative of Switzerland began by thanking delegations for the interest they had expressed in Switzerland’s review and for the quality of the dialogue that had taken place on 8 May 2008. At that time 31 recommendations had been addressed to Switzerland. Switzerland had already taken a position on eight of the recommendations, and that position was reflected in the report of the Working Group (A/HRC/8/41), which stated that six recommendations had been accepted and two rejected. The remaining 23 recommendations had been discussed subsequently by the various departments of the Federal Administration: 14 recommendations had been accepted, 6 had been rejected and 3 had been changed to voluntary undertakings. While most of the recommendations addressed to Switzerland had thus been accepted, recommendations 4, 7, 11, 15, 18 and 20 had been rejected for the following reasons.
731. Recommendation 4, “Adopt legislative or other measures so that human rights are taken into account upstream by the judiciary, in particular during the elaboration of popular initiatives to ensure their compliance with international obligations”, would entail a substantial modification of existing procedures by giving the Federal Tribunal competence in the areas of monitoring constitutional conformity and international law that it did not currently have. There was thus no reason at present for additional measures to achieve the objective of the recommendation. The Swiss Government and Parliament made a preliminary check to ensure that popular initiatives were consistent with Switzerland’s obligations under international law. Popular initiatives that were contrary to a peremptory norm of international law were declared to be totally or partially null and void by Parliament. Furthermore, when an initiative was accepted, its implementation had to be consistent with Switzerland’s international commitments.
732. Recommendation 7, “Adopt a specific law prohibiting incitement to racial and religious hatred, in accordance with article 20, paragraph 2, of the International Covenant on Civil and Political Rights”, was already covered by article 261 bis of the Criminal Code (article 171 (c) of the Military Criminal Code) on racial discrimination, which had entered into force on 1 January 1995. That provision punished anyone who publicly incited hatred or discrimination against people because of their race, ethnicity or religion, violated human dignity, refused to provide a public service or propagated a racist ideology. Since the entry into force of article 261 bis, approximately 450 cases had resulted in judgements or decisions in various courts. The recommendation was thus covered by that provision of the Swiss Criminal Code, and Switzerland did not feel it was necessary to adopt any additional legislation in that area.
733. Recommendation 11, “Recruit minorities in the police and establish a body tasked to carry out inquiries into cases of police brutality”, could not be accepted owing to Switzerland’s federal nature: police forces were a matter for the cantons, and even local communities, to decide, and it was the cantons and communities who determined recruitment policy. All Swiss citizens, provided they met the criteria for eligibility, could apply for the entrance examinations
regardless of their place of origin or establishment. Moreover, some cantons allowed only those foreign nationals who had residence permits to join their forces. Legal remedies were available to victims of police brutality.
734. Switzerland rejected recommendation 15, “Withdraw reservation to article 4 of the International Covenant on the Elimination of All Forms of Radical Discrimination”. Although it continued to maintain its reservation to article 4 of that Convention, Switzerland had adopted article 261 bis of the Criminal Code (article 171 (c) of the Military Criminal Code) on racial discrimination. Switzerland reserved the right to take the legislative measures necessary for the implementation of article 4, taking due account of freedom of opinion and freedom of association, which were provided for, inter alia, in the Universal Declaration of Human Rights.
735. The overall thrust of recommendation 18, “That federal legislation be strived for to provide protection against all forms of discrimination, including on grounds of sexual orientation and gender identity”, did not pose any major problems for Switzerland, which made combating any kind of discrimination a priority. However, the fact that sexual orientation was the only type of discrimination mentioned in the recommendation was an obstacle to its acceptance. Switzerland thus rejected the recommendation for the same reasons adduced for its rejection of recommendation 20.
736. Recommendation 20, which Switzerland also rejected, called on the country to “take additional steps to ensure that same-sex couples are not discriminated”. The Federal Act on registered partnerships, which had entered into force on 1 January 2007, had introduced partnership registration, whereby same-sex couples could have their relationship recognized in law. Registered partners enjoyed the same status as married couples. However, registered partners were not allowed to adopt children or to use medically assisted means of reproduction.
737. The representative of Switzerland then discussed the recommendations that had not been accepted but which it had chosen to change into voluntary undertakings.
738. Recommendation 1, “Establish a national institution on human rights in accordance with the Paris Principles”, had become the following voluntary undertaking: “Switzerland shall consider the possibility of establishing a national human rights institution in accordance with the Paris Principles”. That language reflected more accurately the current state of the debate in Switzerland. In January 2007, the Federal Council had established a joint federal/cantonal working group, which would soon transmit its report to the Government. The federal authorities did not wish to adversely affect the final decision by accepting or rejecting recommendation 1.
739. Recommendation 3, “Accede to the first Optional Protocol to the International Covenant on Civil and Political Rights”, had been changed to the following voluntary undertaking: “Switzerland is ready to consider becoming a party to the first Optional Protocol to the International Covenant on Civil and Political Rights”. Switzerland recognized the importance of allowing individuals to have access to communication and complaint mechanisms when their fundamental rights were violated. It remained ready to consider becoming a party to the Protocol.
740. Recommendation 21, “Withdraw the reservations to the Convention on the Elimination of All Forms of Discrimination against Women and ratify the Optional Protocol thereto”, was problematic in that it dealt with two different issues. Accordingly, Switzerland wanted to split it into two parts. Swiss regulations governing family names, which were currently under discussion in the Federal Parliament, would most likely not be changed before Switzerland’s next periodic review in 2012. The same was also true for Switzerland’s reservations to article 15, paragraph 2, and article 16, paragraph 1 (h) of the Convention. Those provisions were applied subject to several interim provisions of the matrimonial regime, which were scheduled to expire after the next universal periodic review cycle. Switzerland did, however, agree voluntarily to undertake ratification of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.
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