SWITZERLAND: National Laws

Summary: General overview of Switzerland's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
Ratified treaties, including the Convention on the Rights of the Child, automatically become part of Swiss law without the need to enact further legislation. The provisions of the Convention are directly applicable before Swiss authorities where the subject and purpose of the treaty is unconditional and sufficiently precise to apply to a particular case and to constitute the basis for a concrete decision.  As such, the CRC can be and has been cited in national courts.

Constitution: The Swiss Federal Constitution contains rights provisions that apply regardless of age, as well as a small number of provisions that directly affect the rights of children:

• Art. 34(1): empowers the Confederation to enact uniform regulations on the employment of children in factories.
• Art. 49: allows the paternal or “tutelary authority” to determine the religious education of children until they have completed their 16th year.
• Art. 53(5): provides that “children born before marriage shall be legitimised by the subsequent marriage of their parents”.
• Art. 64Bis(3): entitles the Confederation to assist institutions for the protection of neglected children.

Legislation: Swiss law does not have a consolidated or comprehensive Children's Act; rather, laws relating to children's rights can be found throughout federal legislation and ordinances and cantonal legislation. Relevant legislation includes, but is by no means limited to:

• The Criminal Code
• The Civil Code
• The Federal Act on the Criminal Status of Minors, 20 June 2003
• The Federal Ordinance regulating the Placement of Children, 19 October 1977
• The Federal Act concerning Assistance to Victims of Offences and the Ordinance on Assistance to Victims of Offences, 18 November 1992
• The Federal Asylum Act and Ordinance 1 on Asylum Procedure, 1 October 1999
• The Federal Act concerning the Permanent and Temporary Residence of Foreigners
• The Ordinance on the Temporary Admission of Foreigners, 25 November 1987
• The Federal Act on Medically Assisted Procreation, 18 December 1998

Legal Research
The Swiss Confederation maintains an official website (http://www.admin.ch/dokumentation/gesetz/index.html?lang=fr) that publishes the text of federal legislation in German, French, Italian, English and Romansch. A selection of legislation is also available in a variety of languages through the World Law Guide (http://www.lexadin.nl/wlg/legis/nofr/eur/lxwezwi.htm) and the International Labour Organisation's NATLEX database (http://www.ilo.org/dyn/natlex/natlex_browse.country?p_lang=en&p_country=CHE). In addition, the GlobaLex initiative at New York University has published a guide to legal research in Switzerland (http://www.nyulawglobal.org/Globalex/Switzerland.htm) that includes links to databases of cantonal legislation. The U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/switzerland.php) and the World Legal Information Institute (http://www.worldlii.org/ch/) have both assembled selections of legal and governmental resources.

Case Law
CRC Jurisprudence
Please contact CRIN if you are aware of any cases in national law that reference the Convention on the Rights of the Child.

Case Law Research
The Federal Tribunal provides access to a range of case law resources in French, German and Italian (http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht.htm).

Compliance with the CRC
In its 2002 Concluding Observations, the Committee on the Rights of the Child welcomed the ongoing process of revising national laws relevant to children, and urged the State to ensure full conformity of these laws with the Convention on the Rights of the Child.

In depth analysis
In the Committee's 2002 Concluding Observations, a number of specific areas of national law were highlighted as inconsistent with the provisions of the Convention. In relation to juvenile justice, the Committee noted the very low age of criminal responsibility (7 years) and the failure to separate children from adults in detention. The minimum age of criminal responsibility has since been raised to 10, although the Committee on the Rights of the Child has indicated that this, too, would be too low.

The Committee also highlighted inadequacies in the law relating to refugees and asylum-seeking children, specifically noting that the right to family reunification was too restricted and that the principle of the best interests of the child is not always applied to minors, particularly unaccompanied minors.

While welcoming the prohibition of corporal punishment in schools, the Committee expressed concern at the legality of such violence in the home, and recommended that the State legislate to explicitly prohibit corporal punishment in the home and other settings. Switzerland has not submitted a report on the CRC since 2002, but corporal punishment remains legal in the home, penal institutions and alternative care settings.

Current legal reform projects
Please contact CRIN if you are aware of any current legal reform projects.