Editorial by Clara Balestra, Sarah Oberson Foundation

On March 7th, 2010, the Swiss populace is to pronounce itself on the “Initiative for the establishment of an advocate in charge of animal protection”. If the answer is a YES, cantons will be pledged to set up a position of advocate to fend for abused animals, within criminal procedures. The advocate will be independent both from investigation authorities, and from the animal’s owner. It will defend only the interests of the animal itself (25.09.2009 Federal decree).

The Swiss Animal Protection organisation (SPA) has launched the initiative to fight the impunity of such abuse on animals. It claims that “criminal prosecution authorities are showing flawed commitment to start criminal procedures, and lack of care in elaborating evidence, since they can base themselves only on the convict’s statement. This situation is owed to the fact that in the majority of cantons, wronged animals have no advocate, while the animal’s owner is allowed to enjoy all the rights conferred by his/her statute of party to the trial (here convict).” (1)

When maltreated, children experience a similar legal situation. Statistics show that violence happens predominantly in the family circle, which makes it difficult to detect (2). Numerous situations falling under automatic prosecution (3), accordingly remain unknown. Children themselves are entitled to lodge a complaint only through their legal representative – most of the time parents, i.e. the probable perpetrator of these acts – or if their discerning capabilities are assessed sufficient. This indeed excludes a high number of children (Criminal Code (CC) art. 30).

So, if the initiative referendum is accepted, animals
in Switzerland would enjoy better legal defense than
children, in case of abuse ? Quite a paradox indeed !

International human rights bodies, including the Committee on the Rights of the child, are have been requesting for years that Switzerland “establish a federal independent human rights institution in accordance with the Paris Principles (…) to monitor and evaluate progress in the implementation of the Convention. It should be accessible to children, empowered to receive and investigate complaints of violations of child rights in a child-sensitive manner, and address them effectively.“ (Concluding Observations, 2002, 16) 

As for the Swiss Government, in response to international and Parliament pressure (in the form of former motions 01.461 and 02.3394) it expressed in July 2009 its view that it was premature to establish such an institution, and launched "a five-year pilot project aimed at providing cantons, municipalities and the private sector with extra support and services in the field of human rights.” – . One of the numerous gaps of this pilor project (See the 08.07.2009 editorial on the Foundation Sarah Oberson blog), is the absence of the issue of receiving or addressing complaints from children.

The functioning of democracy accounts for this paradoxical situation : the groups enjoy the best advocacy of their rights are the ones with most influence on decision-makers. So, we face a strange case where animal rights advocates seem to be stronger (better organized? better funded? better represented?) than child advocates? Furthermore, the view of animals as full-fledged beings seems to be acquired, in a time when children, still, are often considered exclusively as part of the family, and accordingly an intimate concern.

Is it not a duty of the Federal Governement's
to re-balance priorities, keeping politics at bay?

(1) p. 3890, point 2.3 http://www.admin.ch/ch/f/ff/2008/3883.pdf
(2) Statistics : “Victims (of manslaughter or attempt of  manslaughter) under 18, are being assaulted in a majority of cases in the domestic circle (73%).”
(3) Body damage (CC, art.123) area automatically prosecuted if perpetrated on a child “one had a duty to take care of”. Assault  (CC, art. 126) is automatically prosecuted “if the perpetrator has acted repeatedly (…) against (…) a child he/she had a duty to take care of.”
Body damage due to neglect are punished following a complaint (CP art. 125), other deeds of neglect (CP, art. 125, 127, 129 et 117) are automatically prosecuted.
Any offense against the sexual integrity  (CC, Section 5) of a minor is automatically prosecuted.
Psychological abuse is not dealt with explicitly in the Criminal code.
Furthermore, handing harmful substance over to children is being automatically prosecuted.
Last, manslaughter (CC, art. 111-113), infanticide (CC, art.116), and serious body damage (CC, art 122) are being automatically prosecuted.

Link : www.sarahoberson.org

Any comment you would have would be welcome webmaster@childsrights.org.