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Conditions in specialised facilities, prisons and pre-trial facilities
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] In October 2022, the Federal Supreme Court has ruled that access to the Internet must be provided to detainees in order for them to be able to keep social contacts outside detention.[2]
Differences between 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 all the cantons here.
As a study[3] of the Swiss Centre of Expertise in Human Rights (SKMR) has highlighted, administrative detention is carried out (with the only exception of Frambois) in buildings of (former) penal institutions. Due to their original or current design, they are therefore characterized by a strong prison-like character.
In some cases, as mentioned above, this is done in facilities specifically for this form of detention, but often – at least to date – in separate departments of a detention facility in which criminal or pre-trial detention is also carried out. In some cases, the separation takes place only at the cell level, and in some cases such separation is even dispensed with completely, at least for short periods. The accommodation is particularly problematic in small institutions, which have only a few places for administrative detention under the FNIA. In some cases, the small number of detained persons leads to a situation similar to isolation, especially for women, which results in a disproportionate restriction of the personal freedom of the person concerned, especially when the principle of separation is observed (reason for admission or type of detention as well as gender).
This study has identified a great need for action in the area of detention conditions. Besides the need for specialised facilities, it highlighted that the detention regime is still too restrictive in many cases, with long periods of confinement, limited access to common areas and to the walking yard, insufficient leisure activities or employment opportunities, too restrictive visiting regulations, and schematic application of security measures that are proper to penal incarceration. Regarding medical care, the SKMR has noted that the special needs of persons in administrative detention are hardly addressed and especially psychological care is often insufficient.[4]
In 2022, the Federal Supreme Court has judged the conditions of detention inadmissible in a number of cases concerning the Regional prison of Bern, the Regional prison of Moutier, the penitentiary of Realta and the prison of St. Gallen.[5] A cantonal court has also considered the detention conditions in the prison of Gmünden (canton Appenzell Ausserrhoden) inadmissible.
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 they have been followed, however there is no legal obligation for the cantons to implement them.
Since several years the NCPT warns that the conditions for the administrative detention of foreign nationals are generally too restrictive and resemble too much those of penal incarceration. Recognising some exceptions, the NCPT notes that the vast majority of the establishments visited do not differentiate the detention regime according to the type of detention due to a lack of adequate premises and/or sufficient staff. Furthermore, foreigners in administrative detention do not benefit from enough freedom of movement within the facilities.[6] In its various reports, the NCPT recommends the cantons provide for more freedom of movement: detention cells should be open without time limitation and stay closed only during the night. With this respect, the time spent out of the cell 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 recommends to study the possibility of free internet access and/or of using mobile phones. As mentioned above, a recent judgment of the Federal Supreme Court has established that detainees have to be granted access to the Internet.
According to NCPT, occupational programmes should be offered to detainees: 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 to the detainees through flyers in the most used languages. Here are summarised some of the findings of NCPT in the years 2018 to 2022:[7]
Frambois and Favra: In 2017 and 2019, NCPT found that the regime in these facilities does not have the same character as criminal detention. In Frambois, detainees can freely move within the facility and outside in the courtyard between 8.15 am and 9 pm and can prepare their own meals in a common kitchen. In Favra, the Commission has judged the time of the daily walk outside (1 hour) too short. This was still not improved in 2020 during a follow-up visit. During the pandemic, Favra was closed and renovated. In December 2020, the NCPT has noted certain improvements like the possibility to receive calls from the exterior, but considers the conditions too restrictive and not adapted to administrative detention, and recommends closing the facility.
Bässlergut: During a follow-up visit in 2017, the NCPT saw 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 expressed in 2017 its concerns in relation to 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 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 noted that although 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.[8]
Regionalgefängnis Bern: In 2019, NCPT visited the prison and recommended to stop the administrative detention of migrants in that prison, as 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 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.[9]
Regionalgefängnis Moutier: The NCPT 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 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.[10]
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 detentions. After its 2019 visit, the NCPT recommended not to use this prison for immigration-related administrative detention.
Prison of Aarau: The prison was visited in 2019. The infrastructure is too similar to that of criminal detention and the NCPT has recommended to lift the obligation to wear prison uniforms.
Penitentiary of Zug: After visiting the facility in 2021, the NCPT recommends to stop using it for the administrative detention of foreign nationals.
Prison of Delémont (JU): After visiting the facility in 2021, the NCPT recommends to stop using it for the administrative detention of foreign nationals. Especially troublesome is the practice described consisting in the placement of people in individual cells without contacts with other detainees. This is meant to respect the separation of the detention regimes, given the few persons in administrative detention, but de facto it amounts to isolation.
The NCPT 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.[11]
Within the framework of the evaluation of the Schengen acquis’ application by Switzerland with respect to the return policy, the Council of Europe anti-torture Committee has visited in 2021 the Centre for administrative detention at Zurich airport, judging the material conditions good, but the detention conditions too strict, with a carceral regime and prevailing security considerations..[12] According to the report, detainees could leave their cell from 8 am to 5 pm four days a week, but only during four hours on weekends and not at all on Wednesdays. Regarding disciplinary measures, the CPT met a detainee in isolation since 20 days, It recommended to limit the maximum duration of isolation to 14 days and to provide for the right to take some fresh air daily while in isolation.[13]
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.[14] In some facilities there is medical personnel present, for example in the prison Bässlergut in Basel. In a report on the provision of medical care in custodial institutions (not focused on immigration detention), the NCPT highlighted important language barriers, which are often overcome with the help of other detainees or detention staff. This is highly problematic, and the NCPT recommended the resort to interpreters.[15] In another more recent report on health care in custodial institutions, the NCPT judged access to mental health care very problematic. In addition, efforts need to be done regarding suicide prevention. And gender specific health care for women when they are detained in gender mixed institutions.[16]
Since June 2022, the FNIA provides for a new possibility of restraining the opportunities for detainees to have contact with specific persons or groups in cases where the person concerned is assumed to pose a specific risk to internal or external security, and even ordering solitary confinement if the restrictions have proven inadequate to counter such security risk.[17]
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 can access an area with bars and restaurants within the transit zone, at least in principle. In Geneva, they have unlimited access to a courtyard, with no green area and airplanes flying in proximity. 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 by shuttle bus only and consists of men’s and a women’s dormitories, a communal area and a playroom, and an outside walking yard with a fence.[18] 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.[19] 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.[20] 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 is currently (February 2023) not in use. It has a capacity of 60 places,[21] and is composed of three dormitories: for men, women and families.[22] Asylum seekers have access to a terrace, a praying room, and an area with shops and restaurants.[23] 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 May 1996, para 5; ATF 122 I 222 of 12 July 1996, para 2; ATF 122 II 299 of 16 August 1996.
[2] Federal Supreme Court, Decision 2C_765/2022 of 13.10.2022, para 5.2.3.
[3] Jörg Künzli, Kelly Bishop, Ausländerrechtliche Administrativhaft in der Schweiz: Menschenrechtliche Standards und ihre Umsetzung in der Schweiz, Swiss Centre of Expertise in Human Rights, Bern, 28 May 2020, 4, available at: https://bit.ly/3HCCjcY.
[4] Jörg Künzli, Kelly Bishop, Ausländerrechtliche Administrativhaft in der Schweiz: Menschenrechtliche Standards und ihre Umsetzung in der Schweiz, Swiss Centre of Expertise in Human Rights, Bern, 28 May 2020, 5, available at: https://bit.ly/3HCCjcY, 5.
[5] Federal Supreme Court, Decision 2C-27/2022, 9 May 2022 on the Regional prison of Bern and Moutier; Decision 2C_765/2022, 13 Ocotober 2022 on the Regional prison of Moutier; Decision 2C-662/2022 on the penitentiary of Realta; Decision 2C_781/2022 on the prison of St. Gallen.
[6] Report of the National Commission for the Prevention of Torture on the forth Universal Periodic Review of Switzerland, 13 July 2022, available at: https://bit.ly/3jdgqI3.
[7] The reports can be found and downloaded here (search per canton or year): https://bit.ly/3Q4s5oE.
[8] Canton du Valais : Conditions de détention jugées inacceptables au centre LMC de Granges, press release available in French (and German and Italian) at: https://bit.ly/3xjLAlG.
[9] Letter of 16 October 2019 available in German at: http://bit.ly/2STqNAD.
[10] Report available in German at: https://bit.ly/37c6w3m.
[11] 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.
[12] Council of the European Union, Rapport au Conseil fédéral suisse relatif à la visite effectuée en Suisse par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) du 22 mars au 1er avril 2021. Available in French at: https://bit.ly/3HjYUtQ, paragraphs 249-251.
[13] Ibid, par. 267-268.
[14] 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: https://bit.ly/3XeyTlD.
[15] NCPT/NKVF, Gesamtbericht über die schweizweite Überprüfung der Gesundheitsversorgung im Freiheitsentzug durch die Nationale Kommission zur Verhütung von Folter (2018 – 2019)”, January 2022, availabe (in German) at: https://bit.ly/3Hlo4Jq, 28.
[16] NCPT, Gesamtbericht über die schweizweite Überprüfung der Gesundheitsversorgung im Freiheitsentzug durch die Nationale Kommission zur Verhütung von Folter (2019 – 2021), January 2022, availabe (in German) at: https://bit.ly/3Hlo4Jq.
[17] Article 81(5) and (6) FNIA.
[18] Terre des Hommes, État des lieux sur la détention administrative des mineur.e.s migrant.e.s en Suisse, November 2018, available at: https://bit.ly/3Hcqlpg, 56.
[19] NCPT, Report on federal asylum centres 2019-2020, 17.
[20] NCPT, Report on federal asylum centres 2019-2020, 35.
[21] AOZ, Asylunterkunft Transitzone Zürich-Flughafen, available in German at: http://bit.ly/38Q3IEF.
[22] Le Temps, Des requérants d’asile bloqués, à Zurich, en zone de transit, available in French at: http://bit.ly/2vVS1h7.
[23] Le Temps, Des requérants d’asile bloqués, à Zurich, en zone de transit, available in French at: http://bit.ly/2vVS1h7.