Council of Europe report on Switzerland and National Minorities

Well, what can I say, confirmation of what I've been writing about concerning the sorry state of human rights in Switzerland. The Council of Europe report on Switzerland in light of the Framework Convention for the Protection of National Minorities (FCNM) confirms many of the problems we've been covering throughout the blog. I review 2...

A little intermezzo from the series on email, electronic communication, and access to justice violation in Switzerland.

Remember Non-Citizens are minorities? It was largely discussed and documented in the linked post, and one should not be discriminated against on the basis of nationality or being a national of a country.

Other then the 2 discussed below, the report highlights also problems in language in the justice system, racism and hate towards minorities.

Human Rights violations can not be examined or remedied

It would seem normal for a civilised western society to have the necessary tools to examine and remedy human rights violations. The lack of a Human Rights Violations investigation authority was discussed in the topic Human Rights Switzerland

While the newly created institution (National Human Rights Institution) will have competences in relation to promotion of human rights, it will not have an explicit human rights protection mandate. In particular, the Advisory Committee regrets that the new institution will not have a competence to receive, investigate and handle individual complaints.

According to the Act, the NHRI does not deal with individual complaints and does not exercise any monitoring or mediation function. The Confederation will provide the NHRI with financial assistance of 1 million Swiss franc (CHF) per year.

The Advisory Committee unanimously criticised, however, that the institution will neither have a complaint-handling function nor sufficient financial resources to conduct its activities. They also raised some concerns as to the compliance of the newly created institution with the Paris Principles, in particular with regard to the pluralism of the staff composition; adequate resources; and adequate access for individuals... it will not have an explicit human rights protection mandate. In particular, the Advisory Committee regrets that the new institution will not have a competence to receive, investigate and handle individual complaints.

The Swiss National Human Rights Institution was allegedly created on May 23rd 2023, but except a press release there is no information about it yet.

Discrimination, particularly in the courts

The principle of non-discrimination, enshrined in Article 8.2 of the Federal Constitution, provides that “No person may be discriminated against, on grounds of, inter alia, origin, race, language, way of life, religious, ideological convictions”. This provision may be directly invoked before the courts. Several sectoral laws also contain anti- discrimination provisions.

I've been directly invoking these discriminations to authorities. The Swiss do not care one bit, all the way to the highest officials, as we've documented on the blog.

There is, however, no comprehensive legislative framework that would clearly define and prohibit discrimination, lists prohibited grounds of discrimination and provide victims with effective civil and administrative remedies. Except for the Federal Act on Gender Equality, no other legislative act provides for a shift in the burden of proof. Furthermore, there is no institution responsible for dealing with multiple/intersectional discrimination at a federal level.

When it comes to discriminating against men (gender equality in Switzerland = discrimination against men, fathers, boys) the Swiss are present. For the rest, no where to be found.

One of the main obstacles for the protection of the rights of national minorities is the absence of comprehensive anti-discrimination legislation. This impedes the right to access to justice since victims of discrimination do not benefit from specific measures to ease the challenges faced in proving discrimination claims, notably the shift in the burden of proof. Furthermore, in the absence of comprehensive legislative and precise procedural rules, any alleged victim of multiple discrimination is obliged to lodge several complaints, with different competent bodies and referring to different substantive legal provisions. Other concrete problems that may hamper access to justice include complexity and length of proceedings, as well as uncertainty as to the outcome of the case. The absence of an automatic locus standi for NGOs in discrimination cases is another problem. Lastly, low awareness of the existing anti- discrimination sectorial legislation and the absence of an equality body at the federal level that could assist victims, remain major challenges in combatting discrimination. Interlocutors of the Advisory Committee concluded that the cumulative effect of all the listed problems constitute the main reason for the significant underreporting of different instances of discrimination.

Furthermore, in the Advisory Committee’s view, the lack of awareness of rights and the absence of an equality body on one hand and uncertainty as to the favourable outcome of the court proceedings and difficulties to provide evidence on the other hand, constitute other reasons for under-reporting cases of discrimination.

It is within the margin of appreciation of the domestic courts to decide on this issue conducting a case-by-case assessment. This also results in the under reporting of discrimination-related cases.

If you do not have a definition of discrimination, there can't be grounds of discrimination, there can't be reporting of discrimination, there can't be laws against discrimination, there can't be remedies against discrimination... There can't be discrimination. Which is exactly the typical Swiss denial of reality and international exhibition of claimed superiority.

What's more, Switzerland impedes the right to access to justice.

Tomorrow it is back to the series on electronic communication and access to justice.

Tags: #Rights #Accesstojustice

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