CAT/C/CR/34/CHE
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(c)
The new draft federal code of criminal procedure on the rights of persons detained
in police custody that prohibits incommunicado detention (mise au secret);
(d)
The measures contained in the revised law on asylum as well as those taken by
the Federal Office for Migration to address cases of gender-based persecution;
(e)
The publication of the reports of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment on its third and fourth visits to
Switzerland and the Government’s response thereto, as well as the work being carried out by the
State party’s authorities to implement recommendations contained therein, such as those
concerning removals by air of foreign nationals and integration into the general police training
programme of information concerning the risk of positional asphyxia during these deportations;
(f)
The signature of the Optional Protocol to the Convention in June 2004 and the
measures being undertaken to seek its ratification;
(g)
The ratification of the Rome Statute of the International Criminal Court
on 12 October 2001.
C. Subjects of concern
4.
The Committee expresses concern regarding the following:
(a)
Although torture is prohibited by the Federal Constitution, no specific definition
of torture exists in criminal law covering all the constituent elements of article 1 of the
Convention;
(b)
The draft federal law regulating the use of force by police during deportations and
during the transport of detainees ordered by a federal authority:
(i)
Authorizes the use of electro-shock instruments, including tasers, which
can sometimes be used as instruments of torture;
(ii)
Does not make any provision for independent monitors to be present
during the deportation;
(c)
The Federal Act on Administrative Procedure does not explicitly include
the findings of the Committee in respect of an individual complaint concerning a violation of
article 3 of the Convention as constituting, in itself, grounds for a review of a case. The
Committee notes, however, that the finding will provide the basis for reappraisal when new facts
or evidence are adduced during the proceedings;
(d)
In order for a person to invoke article 3 of the Convention, the Committee
notes that the standards of proof required by the State party exceed the standards required
by the Convention. The Committee wishes to draw the attention of the State party to its
general comment No. 1 (1996) stating that the risk of torture “must be assessed on grounds that
go beyond mere theory or suspicion. However, the risk does not have to meet the test of being
highly probable (para. 6)”;