Switzerland

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Switzerland

National Child Protection Legislation

National Legislation

 Age of Child: 18 years old

Civil Code

Art. 14 – Majority

A person is of age if he or she has reached the age of 18.

 Age of Consent: 16 years old

Criminal Code

Art. 187 (1) - Endangering the development of minors – Sexual acts with children

Any person who engages in a sexual act with a child under 16 years of age, or, incites a child

to commit such an activity, or involves a child in a sexual act, is liable to a custodial sentence

not exceeding five years or to a monetary penalty.

 Age of Marriage: 18 years old

Civil Code

Art. 94 – Capacity to Marry

To be able to marry, the prospective spouses must have reached 18 years of age and have the

capacity of judgement.

 Age of Criminal Responsibility: 10 years old

Federal Law Governing the Criminal Status of Minors

Art. 3 – Personal Conditions

This Act applies to every person who commits an act punishable between 10 and 18 years old.

 Extraterritoriality

Criminal Code

Art. 5 – Offences against minors abroad

1. This Code also applies to any person who is in Switzerland, is not being extradited and has

committed any of the following offences abroad:

a. trafficking in human beings (Art. 182), indecent assault (Art. 189), rape (Art. 190),

sexual acts with a person incapable of proper judgment or resistance (Art. 191) or

encouraging prostitution (Art. 195) if the victim was less than 18 years of age; abis.8

sexual acts with dependent persons (Art. 188) and sexual acts with minors against

payment (Art. 196);

b. sexual acts with children (Art. 187) if the victim was less than 14 years of age;

c. aggravated pornography (Art. 197 para. 3 and 4) if the items or performances depict

sexual acts with minors.

2. Unless the offence involves a gross violation of the principles of the Federal Constitution

and the ECHR10, the person concerned is not liable to further prosecution in Switzerland

for the offence if:

a. he has been acquitted of the offence abroad in a legally binding judgment;

b. the sentence that was imposed abroad has been served, waived, or has prescribed.

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3. If the person concerned has been convicted of the offence abroad and if the sentence

imposed abroad has been partly served, the court shall take the part served into account

in the sentence to be imposed. The court decides whether a measure ordered abroad but

only partly executed there must be continued or taken into account in the sentence

imposed in Switzerland.

Art. 6 – Offences committed abroad prosecuted in terms of an international obligation

Any person who commits a felony or misdemeanour abroad that Switzerland is obliged to

prosecute in terms of an international convention is subject to this Code provided:

a) the act is also liable to prosecution at the place of commission or no criminal law

jurisdiction applies at the place of commission; and

b) the person concerned remains in Switzerland and is not extradited to the foreign

country.

The court determines the sentence so that overall the person concerned is not treated more

severely than would have been the case under the law at the place of commission.

Unless the offence involves a gross violation of the principles of the Federal Constitution and

of the ECHR, the person concerned is not liable to further prosecution in Switzerland if:

a) he has been acquitted of the offence abroad in a legally binding judgment;

b) the sentence that was imposed abroad has been executed, waived, or has prescribed.

If the person concerned has been convicted of the offence abroad and if the sentence imposed

abroad has been partly served, the court shall take the part served into account in the

sentence to be imposed. The court decides whether a measure ordered abroad but only partly

executed there must be continued or taken into account in the sentence imposed in

Switzerland.

Art. 7 – Other offences committed abroad

Any person who commits a felony or misdemeanour abroad where the requirements of Articles

4, 5 or 6 are not fulfilled is subject to this Code if:

a) the offence is also liable to prosecution at the place of commission or the place of

commission is not subject to criminal law jurisdiction;

b) the person concerned is in Switzerland or is extradited to Switzerland due to the

offence; and

c) under Swiss law extradition is permitted for the offence, but the person concerned is

not being extradited.

If the person concerned is not Swiss and if the felony or misdemeanour was not committed

against a Swiss person, paragraph 1 is applicable only if:

a) the request for extradition was refused for a reason unrelated to the nature of the

offence; or

b) the offender has committed a particularly serious felony that is proscribed by the

international community.

The court shall determine the sentence so that overall the person concerned is not treated

more severely than would have been the case under the law at the place of commission.

Unless the offence involves a gross violation of the principles of the Federal Constitution and

the ECHR, the person concerned is not liable to further prosecution in Switzerland for the

offence if:

a) he has been acquitted of the offence abroad in a legally binding judgment;

b) the sentence that was imposed abroad has been served, waived, or has prescribed.

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If the person concerned has been convicted of the offence abroad and if the sentence imposed

abroad has been partly served, the court shall take the part served into account in the

sentence to be imposed. The court decides whether a measure ordered abroad but only partly

executed there must be continued or taken into account in the sentence imposed in

Switzerland.

Art. 66a – Expulsion – Mandatory expulsion

1. The court shall expel foreign nationals from Switzerland for a period of 5–15 years if they are

convicted of any of the following offences, irrespective of the sentence imposed:

b. serious assault (Art. 122), female genital mutilation (Art. 124 para. 1), abandonment (Art.

127), endangering life (Art. 129), attack (Art. 134);

…

g. forced marriage, forced registered partnership (Art. 181a), trafficking in human beings (Art.

182), false imprisonment and abduction (Art. 183), aggravated false imprisonment and

abduction (Art. 184), hostage taking (Art. 185);

h. sexual acts with children (Art. 187 para. 1), indecent assault (Art. 189), rape (Art. 190),

sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging

prostitution (Art. 195), pornography (Art. 197 para. 4 second sentence);

…

2. The court may by way of exception refrain from ordering expulsion if it would cause serious

personal hardship to the foreign national concerned and the public interest in expulsion does

not outweigh the private interest of the foreign national in remaining in Switzerland. In such

cases, account must be taken of the special position of foreign nationals who were born or

have grown up in Switzerland.

3. The court may also refrain from ordering expulsion if the offence was committed in justifiable

self-defence (Art. 16 para. 1) or in a justifiable situation of necessity (Art. 18 para. 1).

 Dual Criminality

Federal Act on International Mutual Assistance in Criminal Matters

Art. 1 - Subject matter

1. Unless other federal acts or international agreements provide otherwise, this Act shall

govern all procedures of international cooperation in criminal matters, and in particular:

a) the extradition of persons who are the subject of criminal prosecution or have been

convicted (Part Two);

b) assistance aimed at supporting criminal proceedings abroad (Part Three);

c) the transfer of proceedings and punishment of offences (Part Four);

d) the execution of foreign criminal judgments (Part Five).

This Act applies only to criminal matters in which recourse to the courts is permitted under

the law of the requesting State.

This Act confers no right to international cooperation in criminal matters.

Art. 6 – Concurrence of inadmissibility and admissibility of cooperation

1. If the act of which the defendant is accused constitutes an offence under two or more

provisions of Swiss criminal law, the request may be granted only in respect of those

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offences for which there are no reasons for inadmissibility and if there is a guarantee that

the requesting State will respect the conditions imposed.

2. Cooperation shall not be permitted if the proceedings concern an act that constitutes an

offence under two or more provisions of Swiss or foreign criminal law and if, with regard to

one of these offences, which covers the act in all its aspects, a request may not be granted.

 Mandatory reporting requirements

Civil Code

Art. 443 – Notification rights and obligations

1. Any person may notify the adult protection authority if a person appears to be in need of

assistance. The provisions on professional confidentiality are reserved.

2. Any person who while acting in an official capacity learns that a person needs assistance

is required to notify the adult protection authority. The cantons may provide for further

notification obligations.

Federal Act on Assistance to Victims of Crime

Art. 11 – Confidentiality

1. People working for a counseling center must be silent about their perceptions of

authorities and private persons. The obligation of confidentiality also applies after

termination of this cooperation. The duties to report according the Criminal Procedure

Code remain reserved.

2. Confidentiality is waived if the person advised agrees.

3. If the physical, mental or sexual integrity of a minor victim or other minor person is seriously

endangered, the counseling center may inform the Guardianship Authority or file a

complaint with the law enforcement agency.

4. Those who violate the obligation of confidentiality will be punished with imprisonment of

up to three years or a fine.

Criminal Procedure Code

Art. 302 – Duty to report

1. The criminal justice authorities are obliged to report to the competent authority all offences

that have come to light or that have been reported to them in the course of their official

activities, unless they themselves are responsible for prosecuting the offence.

2. The Confederation and the cantons shall regulate the duty to report of members of other

authorities.

3. The duty to report ceases to apply for persons who have the right to remain silent or to

refuse to testify in accordance with Articles 113 paragraph 1, 168, 169 and 180 paragraph

There is no federal law mandating reporting of child sexual abuse. However, the legislation

below allows certain professionals to report in breach of professional confidentiality in some

situations.

Criminal Code

Art. 321 – Breach of professional confidentiality

1. Any person who in his capacity as a member of the clergy, lawyer, defence lawyer, notary,

patent attorney, auditor subject to a duty of confidentiality under the Code of Obligations

doctor, dentist, chiropractor, pharmacist, midwife, psychologist or as an auxiliary to any of

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the foregoing persons discloses confidential information that has been confided to him in

his professional capacity or which has come to his knowledge in the practice of his

profession is liable on complaint to a custodial sentence not exceeding three years or to a

monetary penalty.

A student who discloses confidential information that has come to his knowledge in the

course of his studies is also liable to the foregoing penalties.

A breach of professional confidentiality remains an offence following the termination of

professional employment or of the studies.

2. The person disclosing the information is not liable to any penalty if he does so with the

consent of the person to whom the information pertains or on the basis of written

authorisation issued in response to his application by a superior authority or supervisory

authority.

3. The federal and cantonal provisions on the duty to testify and on the obligation to provide

information to an authority are reserved.

Art. 362 – Notification in relation to pornography

If an investigating authority establishes that pornographic articles (Art. 197 para. 4) have been

produced in or imported from a foreign state, it shall immediately notify the Federal Central

Office for Combating Pornography.

Title Five: Notification of Offences against Minors

Art. 364 – Right to report

Where an offence has been committed against a minor, persons bound by official and

professional secrecy (Art. 320 and 321) are entitled to report the matter to the child protection

authority where this is in the interests of the minor.

On 1 January 2019, new federal legislation will come into effect that will require all

professionals with regular contact with children to report suspicions of child abuse to the Child

and Adult Protection Authority (KESB). The law will apply to doctors, psychologists, lawyers,

teachers, coaches, and others who are in regular contact with children.

 Registry of Criminal Convictions

Criminal Code

Title Six: Register of Criminal Convictions

Art. 365 – Purpose

1. The Federal Office of Justice, with the support of the other federal authorities and the

cantons (Art. 367 para. 1), maintains a computerised register of criminal convictions and

applications for extracts from the register of convictions in connection with ongoing

criminal proceedings, which contains sensitive personal data and personality profiles. The

data on convictions and on applications for extracts from the register of convictions in

Law change: more people obliged to report child abuse, Jun. 27, 2018, SWISSINFO.CH , at https://www.swissinfo.ch/eng/child-

protection_law-change--more-people-obliged-to-report-child-abuse/44221612 (last visited Jul. 17, 2018). See also, The Federal

Council, Press Release: More child protection thanks to extended reporting rights and reporting obligations, Apr. 5, 2015, at

https://www.bj.admin.ch/bj/de/home/aktuell/news/2015/ref_2015-04-15.html (last visited Jul. 17, 2018).

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connection with ongoing criminal proceedings are processed separately in the

computerised register.

2. The register serves to support the federal and cantonal authorities in the fulfilment of the

following tasks:

a. the conduct of criminal proceedings;

b. international mutual assistance and extradition proceedings;

c. the execution of sentences and measures;

d. civilian and military security checks; the imposition and revocation of measures

banning entry on foreign nationals under the Federal Act of 26 March 1931 on the

Residence and Permanent Settlement of Foreign Nationals as well as the other forms

of expulsion;

f. the assessment of eligibility for asylum under the Asylum Act of 26 June 1998;

g. naturalisation procedures;

…

Art. 366 – Content

1. The register lists persons who have been convicted on the territory of the Confederation,

together with Swiss nationals who have been convicted abroad.

2. The register also includes:

a. convictions for felonies and misdemeanours in cases where a sentence or measure

has been imposed;

b. convictions for contraventions specified by ordinance of the Federal Council of this

Code or any other Federal Act;

c. notifications received from abroad of convictions there that must be recorded in

accordance with this Code;

d. information on the circumstances leading to the amendment of existing entries.

3. Convictions of juveniles are included only if the following sentences were imposed:

a. a custody order (Art. 25 JCLA456); or

b. accommodation in a secure institution (Art. 15 para. 2 JCLA); or

c. out-patient treatment (Art. 14 JCLA); or

d. an activity prohibition order or a contact prohibition and exclusion order (Art. 16a JCLA).

3bis. Convictions of juveniles for contraventions must be included if the penalty involves an

activity prohibition order or a contact prohibition and exclusion order (Art. 16a JCLA).

4. The register also lists persons in respect of whom proceedings for felonies and

misdemeanours are pending in Switzerland.

 Obligations of Educational Institutions

Child and Youth Promotion Act

Art. 1 - Subject

This law regulates:

a. the support of private sponsors, who are dedicated to the extra-curricular work with

children and adolescents;

b. the support of the cantons and municipalities for temporary projects in the field of

extracurricular work;

c. cooperation between the Confederation and the cantons in the area of child and Youth

Policy; and, the promotion of information and experience exchange and competence

development in the field of child and youth policy.

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Criminal Code

Art. 219 – Neglect of duties of care, supervision or education

1. Any person who violates or neglects his or her duties of supervision and education towards

a minor and thus endangers the minor's physical or mental development, is liable to a

custodial sentence not exceeding three years or to a monetary penalty.

2. If the person concerned acts through negligence, a fine may be imposed instead of a

custodial sentence or a monetary penalty.

 Prohibition to hold certain positions

Criminal Code

Art. 67 – Prohibition from carrying on an activity, contact prohibition and exclusion order

1. If a person has committed a felony or misdemeanour in the course of carrying on a

professional activity or an organised non-professional activity, and has as a result received

a custodial sentence in excess of six months, and if there is a risk that he will abuse his

activity in order to commit a further felony or misdemeanour, the court may prohibit him

totally or partially from carrying on this activity or comparable activities for a period of six

months to five years.

2. If a person has committed a felony or misdemeanour against a minor or another especially

vulnerable person and if there is a risk that in the course of carrying on a professional

activity or an organised nonprofessional activity that involves regular contact with any

minors or with other especially vulnerable persons he will commit further offences of this

nature, the court may prohibit him from carrying on the activity concerned for one to ten

years.

3. If a person is sentenced to a custodial sentence of more than six months or a measure in

accordance with Articles 59–61 or 64 for any of the following offences, the court shall

prohibit him from carrying on any professional activity or organised non-professional

activity that involves regular contact with any minors for ten years:

a. trafficking in human beings (Art. 182), indecent assault (Art. 189), rape (Art. 190),

sexual acts with persons incapable of judgement or resistance (Art. 191), sexual acts

with persons in institutional care, prisoners and persons on remand (Art. 192),

exploitation of a person in a position of need or dependency (Art. 193) or encouraging

prostitution (Art. 195), provided the offence is committed against a minor;

b. sexual acts with children (Art. 187) or sexual acts with dependent persons (Art. 188);

c. aggravated pornography (Art. 197 No 377), provided the content of the items or

performances involved sexual acts with children.

4. If a person is sentenced to a custodial sentence of over six months or a measure in

accordance with Articles 59–61 or 64 for committing any of the following offences against

an especially vulnerable adult person, the court shall prohibit him from carrying on any

professional activity or organised non-professional activity that involves regular contact

with especially vulnerable adult persons for ten years: trafficking in human beings (Art.

182), indecent assault (Art. 189), rape (Art. 190), sexual acts with persons incapable of

judgement or resistance (Art. 191), sexual acts with persons in institutional care, prisoners

and persons on remand (Art. 192), exploitation of a person in a position of need or

dependency (Art. 193) or encouraging prostitution (Art. 195).

5. If the offender receives a sentence or is made subject to a measure for two or more

offences in the same proceedings, the court shall specify what portion of the sentence or

which measure applies to an offence that entails an activity prohibition order. This portion

of the sentence, the measure and the offence are decisive in determining whether an

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activity prohibition order under paragraph 1, 2, 3 or 4 is imposed. The sentence portions

for two or more relevant offences are added together. More than one activity prohibition

order may be imposed.

6. The court may impose lifelong prohibition orders under paragraphs 2, 3 and 4 if it is

probable that a term of ten years is insufficient to guarantee that the offender will no longer

represent a risk. On application from the executive authority, it may extend limited

prohibition orders under paragraphs 2, 3 and 4 by a maximum of five years in each case

if this is necessary to prevent the offender from committing further felonies and

misdemeanours of the type that gave rise to the prohibition order.

7. The court may order probation assistance for the duration of the prohibition orders. It shall

order probation assistance in every case in which a prohibition order has been imposed

for an offence under paragraph 3 or 4.

Art. 67a – Content and scope

1. Professional activities within the meaning of Article 67 are activities in exercise of a

principal or secondary profession or trade or of a commercial enterprise. Organised non-

professional activities are activities that are not or not primarily carried on for pecuniary

gain and which are carried on in the context of an association or other organisation.

2. The prohibition from carrying on an activity under Article 67 includes activities that the

offender carries on a self-employed basis, as a governing officer of a legal entity or

commercial enterprise, or as the agent or representative of another person or which he

arranges to be carried on by a person dependent on his instructions.

3. If there is a risk that the offender will also misuse his activity in order to commit offences

if he is subject to the orders and control of a superior or supervisor, he shall be totally

prohibited from carrying on the activity.

4. Prohibition orders under Article 67 paragraphs 3 and 4 always apply to the entire activity.

Art. 67b – Contact prohibition and exclusion order