Author
Except from Dublin-related detention, Swiss legislation does not explicitly establish that detention can be ordered only when less coercive measures are not sufficient. However, the examination of alternatives to detention is implied by the principle of proportionality.[1] The FNIA provides for some measures that can be used as alternatives to detention. In particular, Article 64e provides that cantonal authorities can require the foreign national: (a) to report to an authority regularly; (b) to provide appropriate financial security; (c) to hand in travel documents. Those measures can be used with the aim of ensuring the enforcement of removal orders and can function as alternatives to detention. Furthermore, the restriction and exclusion orders (Article 74 FNIA), prohibiting respectively to leave an allocated area or to enter a specific area, were explicitly introduced in the law as alternatives to detention.[2] The implementation of alternatives to detention is not registered as such and there are no statistics available on their use. According to the SEM, there are also no statistics concerning the number of restriction and exclusion orders issued by the cantons.[3]
In 2015, the UN Committee against Torture stated in its recommendations that Switzerland must apply alternative measures to detention.[4] Although some alternative measures exist, they are still too rarely implemented in practice. There are also wide divergences between the practices of different cantons. The National Council Control Committee has stated in a 2018 report that the significant differences among cantons in the rate of detention orders signify that the cantons apply differently the principle of proportionality, raising fundamental questions of equality of treatment.[5]
Regarding Dublin detention cases, the Federal Administrative Court has stated that a restriction order on the territory of the reception centre could be an alternative to detention, subject to an individual examination.[6] The Federal Supreme Court has also highlighted that detention is only admissible as an ultima ratio measure and after a thorough examination of other less coercive measures.[7]
In 2022, the Federal Council has examined and rejected the possibility of introducing electronic surveillance as an alternative to detention. However, it decided to propose the introduction of another alternative consisting in the obligation to stay in a specific accommodation during a few hours every day or night.[8] This proposal was part of an amendment of the FNIA that is currently in the consultation phase.[9]
[1] See for example the Decision of the Federal Supreme Court 2C_1063/2019 of 17 January 2020, para 5.3.
[2] Martin Busiger, Ausländerrechtliche Haft: Die Haft nach Art. 75 ff. AuG, 2015. On the topic of alternatives to detention, see also Die ausländerrechtliche Administrativhaft – Kritik und Alternativen, 7 October 2020 from Asylex on humanrights.ch; available in German (and French, dated 22 July 2021) at: https://bit.ly/3d1c80K.
[3] Information provided by the SEM, 27 April 2021.
[4] UN Committee Against Torture, Observations finales concernant le septième rapport périodique de la Suisse, Advanced unedited version, 13 August 2015, available at: https://bit.ly/3EZN2tB, no. 17.
[5] Détention administrative de requérants d’asile : Rapport de la Commission de gestion du Conseil national du 26 juin 2018, p.7502. See also Christin Achermann, Anne-Laure Bertrand, Jonathan Miaz, Laura Rezzonico, Administrative Detention of Foreign Nationals in Figures, in a nutshell #12, January 2019, available in English at: http://bit.ly/2wDdHik.
[6] Federal Administrative Court, Decisions D-2484/2016, 27 April 2016; D-1626/2016, 22 March 2016.
[7] Federal Supreme Court, Decisions 2C_1052/2016 and 2C_1053/2016, 26 April 2017.
[8] Communication of the Federal Council, 16 December 2022, https://bit.ly/3Vswtif.
[9] The project of amendment can be downloaded on this link: https://tinyurl.com/3kvwkr9u . The Swiss Refugee Council has submitted its position in the framework of this consultation.