Author
Article 81(3) FNIA 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 and with Article 37 of the Convention on the Rights of the Child. Federal law does not provide any more detailed preconditions for detention conditions, as detention is ordered at the cantonal level and lies within the competence of the respective cantons. However the Federal Supreme Court has laid down some requirements for pre-removal detention: contacts with outside as well as with other detainees must be allowed; detainees should have right to unlimited visits without surveillance; detainees’ rights and liberties can be restricted only to ensure the aim of detention and the proper functioning of the facility; and the detention regime must be freer than the regimes in penal forms of incarceration.[1]
Conditions in specialised facilities, prisons and pre-trial facilities
Detained asylum seekers have access to health care in practice. As asylum seekers are usually detained in detention centres for pre-trial detention and/or criminal detention, the health care provided is generally at an acceptable level although it is limited to primary health care.[2] In some facilities there is medical personnel present, for example in the prison Bässlergut in Basel. In a recent report on the provision of medical care in custodial institutions (not focused on immigration detention), the NCPT has highlighted important language barriers, which are often overcome with the help of other detainees or detention staff. This is highly problematic, and the NCPT recommends the resort to interpreters.[3]
Differences between the cantons and between facilities are huge with regard to the conditions of detention, the type of facilities used, as well as the legal bases and practices of ordering and reviewing detention. Unfortunately, it is not possible to provide an overview of the practice in the cantons here.
The NCPT regularly visits carceral facilities used for purposes of criminal justice and/or immigration detention. Its reports are the main source of information on those confinement spaces. The NCPT also makes recommendations to the cantonal authorities and follow-up visits to check if those have been followed, however there is no legal obligation for the Cantons to implement those.
The NCPT affirms that in general, the conditions are too restrictive and resemble too much to those of penal incarceration. Foreigners in administrative detention do not benefit from enough freedom of movement within the facilities.[4] In its various reports, the NCPT recommends the Cantons to provide for more freedom of movement, which should be granted as a matter of principle in all detention facilities; detention cells should be open without time limitation and stay closed only during the night. With this respect, the out-of-cell time differs greatly from one facility to another. As a way of example, detainees in Frambois can freely move within the whole facility (including a fenced courtyard) from 8am to 9pm, while in Granges, they spend 19 to 20 hours in their cell. The NCPT also often recommended to study the possibility of free internet access and/or of using mobile phones.
According to NCPT, occupational programmes should be offered to the detainees, while this possibility is only provided in some of the facilities, for example in Frambois, Bässlergut, and the Zurich airport prison. In Bässlergut, detained persons can work in a workshop for 2,5 hours daily, and are paid 6 CHF per day. Many other facilities do not provide for occupational programs.
Concerning the detention facilities of Frambois, Favra and Realta, NCPT suggests disciplinary measures should be better regulated and controlled. Concerning Favra and Realta, information about rights and obligations should be more accessible for the detainees through flyers in the most used languages. Here are summarised some of the findings of NCPT in the years 2018 and 2019:
Frambois and Favra: NCPT has found that the regime in these facilities has not the same character of criminal detention, but recommends that the concerned persons have access to a medical screening in the first 24 hours. In Favra, which will be closed in the medium term due to its old structure, the need to grant an access to the exterior facilities and to work on a suicide prevention concept exists.
Bässlergut: During a follow-up visit in 2017, the NCPT has seen improvements, but still suggests to take measures in order to protect the health of the detainees, e.g. protection against passive smoke or prevention of suicidal risk through psychiatric care and accommodation in adequate facilities. Although some improvement could be noted, the facility has still a strong criminal detention facility character.
Realta: NCPT has expressed in 2017 its concerns in relation to the cell opening hours (approx. 7 hours), the shortage of natural light in the cells, the inadequacy of the courtyard for long stays in the facility, the impossibility to have visits during weekend, the impossibility to keep one’s own personal clothes and substitution with prison clothes, the shortage of occupation, the absence of a systematic medical screening upon admission.
Granges: In 2018 the NCPT has expressed severe concerns because the national and international standards of detention conditions are not met in this facility. Accommodation of women, especially pregnant women, is not acceptable as there is no department for women and most of the guards are men. In a follow-up visit, the NCPT has noted that despite women and minors had not been detained in the previous months, most of the recommendations had not been followed and strongly criticized the material conditions and the detention regime, recommending to provide for more freedom of movement within the facility.[5]
Regionalgefängnis Bern: In 2019, NCPT has visited the prison and recommended to stop the administrative detention of migrants in that prison, since the material conditions do not allow to provide for a less restrictive detention regime. In its response, authorities of Canton Bern stated that since 2018, a new separated sector in the Regional Prison of Moutier had been arranged for the administrative detention of foreigners, allowing for more freedom of movement (from 9am to 6pm with the exception of the lunchtime; access to the courtyard during 3 hours in the afternoon). It also stated that since September 2019, the Regional Prison of Bern would only be used as entry and transit facility, where stays would be limited to a maximum of four days.[6]
Regionalgefängnis Moutier: The NCPT has visited the facility in June 2019. In administrative detention, the cells are open from 12 to 18 and the courtyard and common spaces are accessible from 14 to 17. Some work occupations are available but these are not sufficient for all people detained. The NCPT judged this regime as too restrictive and recommended limiting the locking of cells to the night time and studying the possibility to allow the use of Internet and mobile phones. It also recommended to ensure access to psychiatric care, develop a concept to deal with suicide attempts, resort to professional interpreters during medical visits and improve detainees’ access to information and house rules.[7]
Prison of Sarnen (OW): The prison is sometimes used for administrative detention, but there is no separation from (only different cells) nor different detention conditions than other detention regimes. After its 2019 visit, the NCPT has recommended not to use this prison for immigration-related administrative detention.
Prison of Aarau: The infrastructure is too similar to that of criminal detention and the NCPT has recommended to lift the obligation to wear prison uniforms.
The NCPT has also highlighted that the conditions of detention of minors in general are not adequate as most of them are detained in penitentiaries or remand prisons, which do not guarantee the minimum standards with regard to children’s rights. Even in facilities specific to immigration detention, the character is too carceral and the regime too strict.[8]
In the framework of the evaluation of the Schengen acquis’ application by Switzerland with respect to the return policy, the Council of the European Union has visited a few detention facilities and published the following recommendations:[9]
Zurich airport prison: Members of a family should not be systematically separated, and families without children should be accommodated separately and in conditions guaranteeing an adequate intimacy (Article 17(2) of the Return Directive); there should be more indoor living space at the disposal of detainees, who should be locked for the shortest appropriate period of time during the day.
Regional Prison of Thun: The detention regime should allow detainees to spend more time outside their cells; there should be sufficient daylight in cells; an adequate outdoor area should be available; less intrusive methods than strip search should be used during the intake procedures; there should be sufficient and well-trained staff equipped to cater for the needs of illegally staying third-country nationals, including families, women and minors, to guarantee both the security of the premises and daily assistance to detainees.
In 2015, the UN Committee against Torture stated in its recommendations that Switzerland should establish and apply alternatives to detention and use detention only as a last resort and for the shortest time possible. The State should pursue its efforts to provide for specialised structures for administrative detention in all cantons, with a regime that is adapted to its purpose.[10]
Conditions in airport transit zones
When asylum applicants are assigned a place of stay in the transit zone, this means that they are placed in a detention centre during the airport procedure. Conditions in such centres are known to be minimal. Asylum seekers may move freely within the centre and they can access an area with bars and restaurants within the transit zone, at least in principle. They are entitled to a daily walk outdoors on a terrace (in Zurich) or a courtyard (in Geneva), both without a green area. For this reason, accommodation at the airport is considered de facto detention for the scope of this report.
The detention centre in the transit zone of Geneva has a capacity of 30 places and is located rather far from the terminals. It is accessible with a shuttle bus only and is composed of a men’s and a women’s dormitories, a communal and a playroom, and an outside walking yard with a fence.[11] There are also a praying room and a cafeteria. In principle, asylum seekers have access to the non-Schengen transit zone at the airport, with shops, restaurants and bars, but they need to take a shuttle bus to reach it, which means that in practice, they stay in the facility.[12] The centre is managed by the private company ORS, while security is ensured by airport staff. The SEM, IOM and the legal representation offered by Caritas have their own offices in the facility as well. There is no school for children, or any occupation program available for asylum seekers.[13] Health staff is not permanently present. A doctor systematically conducts a first short medical screening within a few days from the arrival and can make further visits in case of necessity.
The detention centre in the transit zone of Zurich airport has a capacity of 60 places[14] and is composed of three dormitories: for men, women and a families.[15] Asylum seekers have access to a terrace, a praying room, and an area with shops and restaurants.[16] The terrace is the only place where they can breathe fresh air and is located far from the centre; it is used by airport and air companies’ personnel. The centre is not appropriate for families with children since there is no school, but families are also held there. Furthermore, no occupation programs are offered. A nurse is regularly there and people in airport procedures have access to a doctor in the airport as well.
[1] Federal Supreme Court, ATF 122 II 49, 2 May1996, c. 5; ATF 122 I 222 of 12 July 1996, c. 2; ATF 122 II 299 of 16 August 1996.
[2] 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, and are available at: http://bit.ly/1RpILjn.
[3] NCPT/NKVF, Gesamtbericht über die schweizweite Überprüfung der Gesundheitsversorgung im Freiheitsentzug durch die Nationale Kommission zur Verhütung von Folter (2018 – 2019)”, 28.
[4] NCPT, Rapport d’activités 2017, available in French at: https://bit.ly/3rnlMRL, 6.
[5] Canton du Valais : Conditions de détention jugées inacceptables au centre LMC de Granges, media release available in French (and German and Italian) at: https://bit.ly/3xjLAlG.
[6] Letter of 16 October 2019 available in German at: http://bit.ly/2STqNAD.
[7] Report available in Germanat: https://bit.ly/37c6w3m.
[8] NCPT, “Rapport au DFJP et à la CCDJP relatif au contrôle des renvois en application du droit des étrangers, d’avril 2018 à mars 2019”, 24 May 2019, available in French at : https://bit.ly/3juDe2q, 18.
[9] Council of the European Union, Council Implementing Decision setting out a Recommendation on addressing the deficiencies identified in the 2018 evaluation of Switzerland on the application of the Schengen acquis in the field of return, 14 May 2019, available in English at:http://bit.ly/37YiNTb, paragraphs 16 to 19.
[10] Committee Against Torture, Observations finales concernant le septième rapport périodique de la Suisse, 13 August 2015, available in French at: http://bit.ly/1LuTgEQ, no. 17.
[11] Terre des Hommes, État des lieux sur la détention administrative des mineur.e.s migrant.e.s en Suisse, November 2018, 56.
[12] NCPT, Report on federal asylum centres 2019-2020, 17.
[13] NCPT, Report on federal asylum centres 2019-2020, 35.
[14] AOZ, Asylunterkunft Transitzone Zürich-Flughafen, available in German at: http://bit.ly/38Q3IEF.
[15] Le Temps, Des requérants d’asile bloqués, à Zurich, en zone de transit, available in French at: http://bit.ly/2vVS1h7.
[16] Ibid.