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Antwortende Abteilung: Federal Department of Foreign Affairs (DFAE) - Human Security Division & Swiss National Contact Point for the OECD Guidelines, State Secretariat for Economic Affairs

Note: Separate responses were submitted by (1) the Federal Department of Foreign Affairs (DFAE) and (2) the Swiss National Contact Point for the OECD Guidelines.  Each entity's response is clearly marked under each question.

Some responses were originally submitted in French.  Unofficial English translation provided by Business & Human Rights Resource Centre. Some responses were originally submitted in English. French translation currently unavailable.

Response to the UN Working Group surveys on implementation of the Guiding Principles

Hat Ihre Regierung Maßnahmen zur Reduzierung negativer Menschenrechtsauswirkungen seitens Unternehmen eingeführt, die Sie als besonders erfolgreich erachten? Bitte geben Sie ein oder mehrere Beispiele.

Federal Department of Foreign Affairs:

  • The Swiss parliament has called for the preparation of a strategy to implement the Guiding Principles on Business and Human Rights. This strategy, which is due to be adopted by the Federal Council in December 2014, was developed jointly with representatives of civil society, companies and academia.
  • Switzerland is currently preparing a new CSR strategy. This strategy should, in particular, make reference to the Guiding Principles.
  • Switzerland also supports various multi-stakeholder initiatives:
    • Switzerland is strongly committed to the Voluntary Principles on Security and Human Rights. These provide concrete instructions for companies in the extractive industries by helping them respect human rights within the framework of ensuring the safety and security of their activities on the ground. Notably, Switzerland held the chairmanship of the steering committee from March 2013 to March 2014.
    • Switzerland is also a signatory to the International Code of Conduct for Private Security Service Providers (ICoC), which applies to private security companies. Its aim is to improve the practices of those companies so that that they respect human rights and international humanitarian law when providing their security services in regions where the rule of law has been weakened.
  • Within the framework of the "background report on commodities" published in March 2013, the Swiss government is currently engaged in a dialogue with companies active in commodity trading and with civil society in order to identify the measures to take to implement the relevant human rights standards for this sector.

OECD NCP:

Yes. For instance the support for the drafting and implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and the launch of the “Better Gold Initiative”.

Welche Abteilung oder Abteilungen haben eine bedeutsame Verantwortung für Wirtschaft und Menschenrechte innerhalb Ihrer Regierung?

Federal Department of Foreign Affairs:

  • Federal Department of Foreign Affairs (DFAE) – Human Security Division
  • State Secretariat for Economic Affairs (SECO)

OECD NCP:

The Federal Department of Economic Affairs, Education and Research (EAER) and the Federal Department of Foreign Affairs FDFA have significant responsibility for business and human rights. Government ensures coherence for instance through inter-governmental working groups.

Hat Ihre Regierung neue Initiativen zu Wirtschaft und Menschenrechte durchgeführt oder bestehende Initiativen seit der Darlegung der UN Leitprinzipien im Juni 2011 intensiviert?

OECD NCP:

Yes

Welche sind die 5 wichtigsten Verstöße gegen Menschenrechte in Firmen, aufgrund derer Ihr Unternehmen Maßnahmen ergriffen hat?

Federal Department of Foreign Affairs:

Types of company impacts prioritised:

  • Operations in conflict zones
  • Abuses linked to security for company operations (e.g. torture & ill-treatment)
  • Other: Protection of human rights in general

Maßnahmen zu Krisengebieten

Federal Department of Foreign Affairs:

For Operations in conflict zones: ICoC (voluntary initiative)

Maßnahmen zu Beziehungen mit Sicherheitsdienstleistern

Federal Department of Foreign Affairs:

For Abuses linked to security for company operations (e.g. torture & ill-treatment): ICoC, VPs (voluntary principles)

Sonstige Maßnahmen

Federal Department of Foreign Affairs:

Protection of human rights in general

OECD NCP:

The Swiss Government is for instance working on a Guidance for trading with commodities, cf. recommendation 11 of the “Background Report: Commodities” of March 27, 2013: “A working group, in cooperation with representatives of the stakeholders involved (specifically, the cantons, as well as companies and NGOs) should prepare proposals for corporate social responsibility standards (including implementation mechanisms) for the commodity merchanting industry. Based on those proposals, consideration should be given to the submission of initiatives and international guidelines – designed, specifically, also to deal with ecological effects – before the appropriate international bodies.”

Hat Ihre Regierung einen nationalen Aktionsplan für Wirtschaft und Menschenrechte erlassen, wie er vom UN Menschenrechtsrat und der UN Arbeitsgruppe für Wirtschaft und Menschenrechte angeregt wurde, oder beabsichtigt Ihre Regierung, einen solchen Aktionsplan zu erlassen?

Federal Department of Foreign Affairs:

Yes, as mentioned in the response to question 1, the National Action Plan is due to be adopted at the end of 2014.

OECD NCP:

Switzerland expects to publish a National Action Plan on business and human rights in 2015. The State Secretariat for Economic Affairs has a corporate social responsibility concept: [link] which is currently being updated.

Hat Ihre Regierung einen nationalen Aktionsplan für Wirtschaft und Menschenrechte erlassen, oder plant sie dessen Erlassung, geben Sie bitte an, ob er sich auf internationale Menschrenrechtsnormen bezieht und ob er in Absprache mit den jeweiligen Beteiligten entwickelt wurde.

Federal Department of Foreign Affairs:

The National Action Plan is based on the UN's Guiding Principles on Business and Human Rights. Representatives of civil society, companies and academia were consulted during its preparation.

OECD NCP:

Yes for both questions.

Zugang zu Rechtsmitteln: Welche Schritte wurden unternommen, um neue Rechtsbehelfe oder verwaltungs-rechtliche Abhilfemaßnahmen zu entwickeln oder um Hindernisse bei bestehenden Abhilfemaßnahmen für Opfer zu reduzieren?

Federal Department of Foreign Affairs & OECD NCP:

Response given to the UN Working Group survey question 29:

Civil proceedings:

The Swiss Civil Procedure Code (CPC) provides in art. 117 ff. that any person (regardless of its domicile or its nationality) is entitled to legal aid if: (a) he or she does not have sufficient financial resources; and (b) his or her case does not seem devoid of any chances of success.

Legal aid comprises: (a) an exemption from the obligation to pay advances and provide security; (b) an exemption from court costs; (c) the appointment by the court of a legal agent under the legal aid system if this is necessary to protect the rights of the party concerned, and in particular if the opposing party is represented by a legal agent; the legal agent under the legal aid system may be appointed prior to the court hearing in order to prepare the proceedings. Legal aid may be granted for all or part of the case. No court costs are charged for proceedings relating to the granting of legal aid, except in cases of bad faith or vexatious conduct.

Switzerland is also party to various international instruments, such as the Convention of 25 October 1980 on International Access to Justice, which provides that nationals of any Contracting State and persons habitually resident in any Contracting State are entitled to legal aid for court proceedings in civil and commercial matters in each Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State. This applies also to legal advice, provided the person seeking advice is present in the State where advice is sought. The Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters allows mutual judicial co-operation in order to to obtain evidence in another State, or to perform some other judicial act abroad.

Criminal proceedings:

Beside several other procedural rights (art. 117 CrimPC), victims have at certain conditions the right to constitute private claimant in a criminal proceeding (art. 118 CrimPC). This status grants legal aid to the victim as private claimant (art. 136 CrimPC). In addition, according to the Federal Law on the assistance to victims of criminal offences, victims can get assistance at counselling services all over the country in medical, psychological, social, financial or legal matters (art. 2ss). Immediate help is free. Assistance on a longer period of time is also free if the victim's personal situation calls for it. Victims can also get compensation from the state for the financial and moral damage they have suffered, if they cannot obtain such compensation of the offender (for instance because the offender is unknown or without financial means). Compensation for material damage is limited to 100'000 francs and takes into account the damage suffered and the financial means of the victim. Victims get no compensation from the state for material damage if their financial means exceed a limit set by law. Compensation for moral tort is granted regardless of financial means: requirements are that the victim has to deal with severe personal suffering (art. 19ss). Finally, victims can obtain assistance according to this law whether the offence has been perpetrated in Switzerland or abroad (art. 3 al. 2 and 17).

Zugang zu Rechtsmitteln: Welche Schritte zur Entwicklung neuer außergerichtlichen Rechtsmittel, zur Verbesserung bestehender Mechanismen und zur Reduzierung der Schranken für Opfer sind vorgenommen worden?

Federal Department of Foreign Affairs:

The Swiss National Contact Point for the OECD Guiding Principles oversees compliance with the Guiding Principles and discusses any related issues with the interested parties, thus contributing to resolution of the problems raised. It offers mediation to the parties concerned.

OECD NCP:

For more information, see: [link]

Zugang zu Rechtsmitteln: Hat Ihre Regierung für Firmen mit Sitz in Ihrem Land oder deren Tochterfirmen Schritte zur Erweiterung der Rechenschaftspflicht für Menschenrechts-auswirkungen im Ausland vorgenommen? Wenn ja, führen Sie dies bitte näher aus.

Federal Department of Foreign Affairs:

In criminal proceedings against business undertakings, jurisdiction lies with the authorities at the place where the company’s registered office is located (Criminal Procedure Code [CrimPC] art. 36, para. 2). Hence, prosecution can be brought in Switzerland only against those companies that are also domiciled in Switzerland – but against them it is nevertheless possible.

Swiss law provides for the criminal liability of legal persons at articles 102 Criminal Code (CrimC). A company has subsidiary criminal liability (para 1) for all crimes and offences when an offence cannot be attributed to a particular individual owing to an organizational failure in the company. In addition, a company carries the primary criminal responsibility for certain serious offences, including bribery of domestic or foreign public officials and money-laundering, regardless of the criminal liability of natural persons, if the company failed to take all reasonable and necessary organizational measures to prevent the offence.

Thus, for example, in November 2011, a company domiciled in Switzerland was fined because persons in positions of responsibility had not taken all necessary and reasonable organisational measures to prevent the payment of bribes to foreign officials abroad.

Civil proceedings:

Regarding tortious acts, Swiss courts at the “domicile” of a company have jurisdiction. The domicile of a company is located where it has its (a) statutory seat, (b) central administration or (c) principal place of business (Lugano Convention [LC] art. 2, para. 1, and 60).

Where the company is not domiciled in Switzerland, Swiss courts have jurisdiction if the tortious act committed abroad caused injury in Switzerland (art. 129 Private International Law Act [PILA]; art. 5 nr. 3 LC).

Other courts in Switzerland may also have jurisdiction, e.g. at the place where a branch office is located in Switzerland, or where the bringing of action in another country is not possible or cannot reasonably be expected and the facts on which the claim is based have a sufficient connection with Switzerland (jurisdiction by necessity; art. 3 PILA).

If Swiss law is applicable, the tortfeasor (i.e. the company, subsidiary or supplier that commits the tort abroad) bears liability. If a group of companies is implied, the parent company may be held liable where no organisational separation has been made between the parent company and the tortfeasing subsidiary (so-called “piercing of the corporate veil”; Civil Code [CC] art. 2).

OECD NCP:

For more information, see: [link]

Welche Faktoren erschweren die Möglichkeit Ihres Unternehmens, Maßnahmen zu Wirtschaft und Menschenrechten zu ergreifen?

Federal Department of Foreign Affairs:

Significant factor:

  • Opposition or lack of consensus within government
  • Challenges of coordinating across government departments

Minor factor:

  • Concern about deterring foreign investment

Not a factor:

  • Lack of resources for enforcement, monitoring and prosecution
  • Opposition by economic interest groups or business associations
  • Other opposition by influential people or groups outside government
  • Political limitations imposed by foreign governments or multilateral institutions
  • Lack of understanding or awareness of business & human rights in government