A Swiss Analysis

Report by Emanuela Ceva (University of Geneva)

Ethical Aspect
The initial reference to general principles Preliminaries is in line with (what I take to be) the general perceptions of what matters from an ethical point of view in this context (especially as refers to transparency and accountability).

The Swiss attach a considerable importance to the assumption of individual responsibilities (less ex ante coercive norms to restrict behavior, more ex post accountability for any behavior). Perhaps the absence of such a reference to individual responsibility might be perceived as disorienting when it comes to discerning what it right or wrong.

Contextual Aspect
The specificity of the Rules for disclosure in particular situations could be improved. For example, it is not clear what means of communication will be used to inform the concerned party that an investigation is under way. Given the Swiss heavy reliance on snail mail, a written communication sent by post would be perceived as more official than one sent by email.

The reference to public disclosures might also be perceived as an attack on individual privacy. For example, Switzerland has no law on whistleblowing and all discussions to implement such an instrument have failed. Part of the fear, as I understand it, is that we should be wary of sanctioning collective stigma on individual behavior, which public disclosures risk conveying.

Legal/Contractual Aspect
The current privacy law may be quite restrictive of the kind of information that could be released and how. I am not a legal expert, but would advise your legal office to consider the new Federal Act on Data protection (https://www.fedlex.admin.ch/eli/cc/1993/1945_1945_1945/en)

I think that the text, as it stands, is at traits too vague to be effectively action guiding. To provide some concrete examples (e.g. to name some of the relevant harms that any disclosure should avoid) might be helpful to enhance this aspect.

Also, a more direct call to professionals’ individual responsibility (or conscientious behavior) might help to make the document more relevant to the Swiss national context.

General remarks
Possible sources of vagueness:

  • “Disclosing the identity of a complainant, harmed individual, or witness to the respondent minimally requires the consent of the complainant or witness.”
    How will the consent be sought/expressed? Why “minimally”? What would be “maximally” required otherwise? Such possibly vague expressions might increase uncertainty and, therefore, generate anxiety in the concerned parties.

  • “Different enforcement policies can limit the information shared by those involved in the complaint, e.g. whether a complainant is allowed to share publicly that the complaint has been filed.”
    It is not clear what “publicly” mean exactly. Is there any difference between telling members of one’s family or going to the news media / make a post on a social network?

  • “When an investigation has been underway for six months without resolution, the Complainant should be contacted about the delay. Such contact should be repeated monthly until the case is resolved.”
    Who should make the contact and by what means (see the concerns about means of communication mentioned in country-specific comment