Judicial review of the detention order

Switzerland

Country Report: Judicial review of the detention order Last updated: 30/11/20

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Review of administrative detention (except Dublin detention, as seen below) is regulated in Article 80 FNIA. Article 80(2) FNIA provides that the legality and appropriateness of detention must be reviewed at the latest within 96 hours by a judicial authority on the basis of an oral hearing. The same occurs with decisions to extend the detention order.

According to Article 80(3) FNIA, the judicial authority may dispense with an oral hearing if deportation is anticipated within 8 days of the detention order and the person concerned has expressed his or her consent in writing. If deportation cannot be carried out by this deadline, an oral hearing must be scheduled at the latest 12 days after the detention order.

According to Article 80(4) FNIA, when reviewing the decision to issue, extend or revoke a detention order, the judicial authority shall also take account of the detainee’s family circumstances and the conditions under which detention is enforced. In no event may a detention order in preparation for departure or detention pending deportation be issued in respect of children or young people who have not yet attained the age of 15.

The detainee may submit a request for release from detention one month after the detention review. The judicial authority must issue a decision on the request on the basis of an oral hearing within 8 working days. A further request for release in the case of detention in preparation of departure (Art. 75 FNIA) may be submitted after one month or in the case of detention pending deportation (Art. 76 FNIA) after 2 months.[1]

The detention order shall be revoked if: the reason for detention ceases to apply or the removal or expulsion order proves to be unenforceable for legal or practical reasons; a request for release from detention is granted; or the detainee becomes subject to a custodial sentence or measure.[2]

Review of Dublin detention is regulated by Article 80a FNIA. It represents an exception since no automatic review is foreseen. In case of detention under a Dublin procedure, the legality and the appropriateness of detention shall be revised by a judicial authority only at the request of the detainee and in a written procedure (both the request and the exam are done in writing). This review may be requested at any time. According to a ruling of the Federal Court of 2 May 2016, the review should in principle be conducted within 96 hours after the request.[3]

Detention under the Dublin procedure can no longer be ordered by SEM, which means that all review procedures are now carried out at the cantonal level (before 1March 2019, the Federal Administrative Court was competent for the judicial review of Dublin detention when ordered by SEM). Again, cantonal practice is very diverse with regard to judicial review. National legislation provides for important safeguards, but compliance with these safeguards is not guaranteed in all cantons. Each canton organises its system of judicial review, and the practice of cantonal Courts is very diverse. It is not possible to provide an overview of all cantonal practices here.

The Swiss Refugee Council has observed that in cases of Dublin detention, the requirements by Swiss law as well as Article 28 of the Dublin III Regulation have not always been met, at least until the Federal Court and Federal Administrative Courts set down some ground rules (see Grounds for Detention: Dublin Procedure). The Swiss Refugee Council also suspects that detainees in the Dublin procedure are insufficiently informed that they must themselves ask in written form for a review of the detention. To help remedy this, the Swiss Refugee Council has drafted a basic form in four languages with which to ask for a review of the Dublin detention order.[4] Another challenge, however, remains the distribution of this leaflet to the relevant persons.

 


[1]           Article 80(5) FNIA.

[2]           Article 80(6) FNIA.

[3]           Federal Court, Decision 2C_207/2016, 2 May 2016.

[4]           The form can be found in English, French and German, available at: http://bit.ly/2T9jhke.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection