Update: 09.01.2013

Switzerland ratifies Council of Europe Convention on Action against Trafficking in Human Beings

As the 38th member of the Council of Europe, Switzerland ratified the Convention on Action against Trafficking in Human Beings. The agreement which aims at strengthening the position of the victims of human trafficking in Europe will enter into force in Switzerland on 1 April 2013.

The basis for the ratification was established by the adoption of the new witness protection law which entered into force on 1 January 2013 and provides the legal framework and structures for the implementation of witness protection programmes to the benefit of threatened witnesses. With these new legal regulations concerning extra-procedural protection of witnesses, Switzerland fulfils all requirements to join the Council of Europe Convention on Action against Trafficking in Human Beings.

In October 2012, the Swiss Federal Department of Justice and Police presented a national strategy paper consisting of 23 measures in the fields of sensitising, prosecution, victim protection and prevention of the trafficking of human beings.

The Convention in the Swiss Parliament

Switzerland, having been involved in the drafting of the Convention, had already signed it on 8 September 2008. Parliament approved ratification of this instrument on 23 December 2011 with 156 votes in favour and 32 votes against it and 7 abstentions in the National Council. The Council of States (Ständerat) unanimously voted in favour of ratification. The National Council had debated the proposal to ratify the Convention on 15 December 2011. The Council of States had already done so on 7 June 2011. Opposition to ratifying the Convention came mostly from national councillors of the SVP. Among other points, they raised general objections against the ratification of a new convention and expressed discontent with the fact that witnesses might obtain right of residence in Switzerland as measure to protect them against persecution.

Witness protection programmes for Switzerland

According to government and parliament, Switzerland largely fulfils the requirements of the Convention. Only the protection of witnesses needed improvement, which is why Switzerland created a legal basis for extra-procedural witness protection programmes and the creation of a national witness protection unit. These regulations are in force since 1 January 2013. The new law is meant to provide better protection from reprisals for witnesses who collaborate with the investigative authority. Especially witnesses making statements in regard to organized crime and terrorism will benefit from the witness protection programme. In order to protect them, these witnesses may be given a new identity and the right of residence in Switzerland.

Up until the new law came into force, witness protection was dealt with differently by every canton. A common procedure was to distort the voices of witnesses during trial. But after the trial finished, these witnesses were often not protected anymore, although the perpetrators (respectively the organized criminal groups who stood behind them) knew who made the witness statement. In cases of human trafficking this often resulted in reprisals against the witness or the witness’s family, either by the perpetrator or his/her colleagues. This in turn led to a situation where witnesses refused to testify out of fear of reprisal attacks and thus perpetrators could not be convicted.

Minister of Justice Simonetta Sommaruga reminded the Council of States of a case in Zurich on which a verdict was given at the end of 2010. This case demonstrated the level of violence that perpetrators are willing to exert, even here in Switzerland. This particular verdict along with similar ones showed that human trafficking for sexual exploitation is real in Switzerland. Sommaruga maintained that Switzerland still allocates insufficient resources to fight this type of human rights violation. “We fear that the cases known to us today are only the tip of the iceberg.”

Are the current witness protection measures sufficient?

During the consultation period prior to the passing of the statute, FIZ (a Swiss organization working with victims of trafficking in women and female migrants) criticized that the witness protection measures are only aimed at victims who are willing to testify in court. They exclude those victims who are incapable of testifying due to health or other reasons. But from a human rights perspective, access to the law must be ensured for all victims of trafficking in women. FIZ thus demands right of residence as well as protection and support for all victims of violence and exploitation, regardless of their willingness to testify.

The issue of victim protection was raised during the debates in parliament. Barbara Schmid-Federer (ZH, CVP) explicitly mentioned the reservations of NGOs and relief organizations during the consultation period. She maintained that the victim protection programme does not solve the problem of insufficient protection for those who do not dare to testify in court. She further pointed out that in practice victims of human trafficking who are not willing to testify after a reflection period of 30 days are barred from staying in Switzerland.

The speaker of the Commission, Susanne Leutenegger-Oberholzer (BL/SP), picked up this remark of her colleague and said that the current rules applying to foreigners are designed to solve this problem. However, she encouraged the National Council to closely monitor cantonal practices as regards cases of hardship. The cantons should follow an approach that is favourable to the victim. Her concerns were rooted in reports by NGOs about large differences in cantonal rules regarding the accordance of right to residence in cases of hardship.

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