Author
Detained persons have the right to communicate with their legal representative (Article 81(1) FNIA). With the new asylum procedure in force since March 2019, asylum seekers are systematically assigned a legal representative. However, in cases where the legal representative has resigned the mandate of representation – which occurs when he/she does not make appeal against the Dublin or the asylum decision – he/she would consequently not be formally informed if one of his/her former clients has been detained. It would be up to the detained person to contact him/her, but no representation is ensured given that the mandate has been resigned 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 Swiss 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 dispose of statistics on the number of detained asylum seekers 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, Asylex provides legal support and representation for persons detained at Zurich airport prison and in some cases also to people detained elsewhere.[5]
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) of the Asylum Act.
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 had not been provided. In November 2019, the Federal Administrative Court 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.[6]
[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, 27 April 2021.
[4] The “Kontaktstelle für Zwangsmassnahmenbetroffene” is active since 2008. More information is available at: https://bit.ly/2Va0CY7.
[5] The NGO can be contacted through the e-mail address detention@asylex.ch.
[6] Federal Administrative Court, Decision D-5705/2019, 25 November 2019.