Author
Detained persons have the right to communicate with their legal representative (Article 81(1) FNIA). However, in cases where the legal representative has resigned the mandate of representation – which occurs when they do not appeal against the Dublin or the asylum decision – they would consequently not be formally informed if one of their former clients has been detained. It would be up to the detained person to contact them, but no representation is ensured given that the mandate has been resigned from and detention falls outside the mandate of the appointed legal representation.
Judicial review of detention takes place automatically except for detention under the Dublin procedure. Usually, detainees are not legally represented during this procedure, but this depends on the cantonal legal bases and practice. Indeed, the right to free legal assistance is regulated by cantonal procedural law. As a minimal constitutional guarantee, the Federal Supreme Court has ruled that free legal representation must be granted upon request in the procedure of prolonging detention after 3 months.[1] Regarding the first review by a judge, free legal representation must only be granted if it is deemed necessary because the case presents particular legal or factual difficulties.[2] The SEM does not have statistics on the number of detained asylum applicants having a legal representation.[3]
Some detention facilities provide access to legal support services. For example, in the prison of Bässlergut a legal advisor from the NGO HEKS/EPER is present every week and accessible for detainees who request a meeting.[4] However, in many other detention facilities access to legal support is very difficult, and the local NGOs providing legal support in asylum cases often do not have the resources to provide free legal assistance to detained persons. Since 2020, the NGO AsyLex provides legal support and representation for persons detained.[5] The lack of systematic access to legal representation for administrative detainees has been recognised as a significant problem by the UN-CAT.[6] A concern shared by AsyLex, which criticises that only few detainees receive free legal representation. Administrative detention can last up to 18 months, and without legal aid, detainees struggle to challenge it effectively. Detention cases under the Dublin procedure may not even see judicial review, and detainees are often uninformed or too intimidated to request one. Legal representation, when available, is often too late due to quick deportation processes or language barriers, undermining the fairness of legal proceedings.[7] While the previous practice of the Federal Supreme Court granted reasonable relief in cases of unlawful or unreasonable administrative detention,[8] AsyLex observed a significant change in the case law by the Federal Supreme Court to a much stricter practice since 2023, deviating to a large extent to previous case law.[9]
Access to legal advice and representation for persons who apply for asylum at the airport and are consequently confined in the transit zone is guaranteed by Article 22 (3bis) AsylA.
On the other hand, access to legal advice and representation for those persons applying for asylum in detention facilities (be they detained under immigration or criminal law) is not explicitly mentioned in the law, which has led to several cases where such legal representation for the asylum procedure was not provided. In November 2019, the FAC clarified that the fact that the person concerned had lodged her asylum application while in detention does not dispense the competent authority of its duty to duly investigate the application in accordance with the law in force, in particular to ensure the right to free legal advice and representation.[10] In September 2022, the SEM informed that all persons applying for asylum from detention or prison would be granted legal representation for their asylum procedure, provided by the legal advice offices in the cantons that are responsible for the extended procedure.
[1] Federal Supreme Court, ATF122 I 49, 27 February 1996, para 2c/cc; ATF 134 I 92, 21 January 2008, para 3.2.3.
[2] Federal Supreme Court, Decision ATF 122 I 275, 13 November 1996, para 3.b. Free legal representation was granted in Decision 2C_906/2008, 28 April 2009.
[3] Information provided by the SEM, May 2023.
[4] The “Kontaktstelle für Zwangsmassnahmenbetroffene” is active since 2008. More information is available here.
[5] The NGO can be contacted through the e-mail address detention@asylex.ch.
[6] UN Committee against Torture CAT, Concluding observations on the eighth periodic report of Switzerland, 11 December 2023, available here.
[7] For further information on this, see the Input from Asylex for the EUAA annual report from November 2023, available in English.
[8] For example: BGE 2C_142/2023, 3 August 2023; BGE 2C_457/2023, 15 September 2023.
[9] BGE 2C_37/2023 Decision from 16 February 2023 | BGE 2C_387/2023, Decision from 7 August 2023 | BGE 2C_793_2022 Decision from 9 October 2023 | BGE 2C_562/2023, Decision from 28 November 2023.
[10] FAC, Decision D-5705/2019, 25 November 2019.