Article 81(3) FNA states that detention conditions must take into account the needs of vulnerable persons, unaccompanied children and families with children, and that detention conditions must be in line with Articles 16(3) and 17 of the Return Directive. Federal law does not provide any more detailed preconditions for detention conditions, as detention is normally (with the rare exception of detention ordered directly at one of the 6 federal initial reception centres) ordered at the cantonal level and lies in these cases fully within the competence of the respective cantons.
Detained asylum seekers have access to health care in practice. As asylum seekers are as a rule detained in detention centres for pre-trial detention and/or criminal detention, the health care provided is generally at an acceptable level.1 In some facilities there is medical personnel present, for example in the prison Bässlergut in Basel.
Differences between the cantons are huge with regard to e.g. the treatment of detainees, the cantonal legal basis for ordering and reviewing detention orders, the use of prisons or special facilities and many more aspects. Unfortunately, it is not possible to provide an overview of the practice in the cantons at this stage.
As some punctual examples, the following remarks made by the National Commission for the Prevention of Torture (NCPT) after its visits to several prisons can be mentioned.
The Commission criticized the administrative detention of foreign nationals in the cantonal prison of Schaffhausen. According to the Commission, the different detention regimes cannot be sufficiently taken into account because of the old, unsuitable infrastructure.
Regarding the cantonal prison Biberbrugg in the canton of Schwyz, the Commission criticised that the shortage of staff on weekends led to limitations to the freedom of movement and visiting hours. According to the Commission, the situation of persons in administrative detention is especially problematic, and their detention regime should be more flexible than the one of persons in criminal detention.
Regarding administrative detention in the prison at the Airport Zurich-Kloten, the Commission noted some improvements in 2016, but criticised the fact that suicidal persons are held in arrest cells, and that there is no suicide prevention concept. It also called for a more suitable detention regime for unaccompanied minors.2 Generally, the Commission denounces the detention regime for persons in administrative detention in the visited centres for being far too strict. Because there is only one specialised institution in Switzerland (“Frambois” in the Canton of Geneva), persons in administrative detention are mostly placed in pre-trial detention facilities, where they are submitted to the same detention regime as other detainees, such as pre-trial detainees. Therefore, the Commission recommends separate wards in which a more flexible detention regime is possible, in accordance with the jurisprudence of the Swiss Federal Court.3 The applicable cantonal laws differ very much.4
In 2015, the UN Committee against Torture stated in its recommendations that Switzerland must continue its efforts to create specialised structures for administrative detention in all cantons, with a regime that is adapted to its purpose.5
- 1. See the reports issued by the Swiss national CAT Committee, the National Commission for the Prevention of Torture (NCPT), issued during the visits to several detention centres since 2010. The reports always also contain a section on access to health care, available at: http://bit.ly/1RpILjn.
- 2. NCPT, Report to the Government of the Canton of Zurich regarding a follow-up visit of 14 April 2016 to the administrative detention section of the airport prison Zurich, 8 November 2016, available in German at: http://bit.ly/2jNv6dQ.
- 3. See the precedent-setting decision by the Swiss Federal Court BGE 122 II 49 Decision of 2 May 1996, also referred to by the report of the NCPT on its activities 2013: NCPT, Tätigkeitsbericht 2013 (Activity Report 2013), available in German at: http://bit.ly/1CooPGI20ff, 20ff.
- 4. In the canton of Jura, administrative detention in the cantonal prison in Porrentruy is limited to one week (Article 16(2) of the cantonal law on the application of in the area of the foreigners law | Loi d’application des mesures de contrainte en matière de droit des étrangers du 20 mai 1998), RSJU 142.41, available at: http://bit.ly/1GvgtOo. In other cantons such strict time limits do not apply. The NCPT has reported on persons put into administrative detention in several cantons (e.g. Glarus, Jura (limited to one week), Schaffhausen, Schwyz, and St. Gallen (on rare occasions). The detention regime in the airport detention centre in Zürich was especially criticised by the NCPT for disproportionate restriction of movement for persons in administrative detention in two reports in 2011 and 2013.
- 5. UN Committee Against Torture, Observations finales concernant le septième rapport périodique de la Suisse, Advanced unedited version, 13 August 2015, available at: http://bit.ly/1LuTgEQ, no. 17.