Legal assistance for review of detention

Switzerland

Country Report: Legal assistance for review of detention Last updated: 30/11/20

Author

Swiss Refugee Council Visit Website

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.

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 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]

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.[3] 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.

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 some cases where such legal representation had not been provided. However recent case law of the Federal Administrative Court has clarified that asylum seekers in that situation have the right to legal protection in the same way as every other asylum seeker (see also section on Legal assistance).[4]


[1] Federal Court, Decision BGE 122 I 49, 27 February 1996, para 2c/cc; Decision 134 I 92, 21 January 2008, para 3.2.3.

[2] Federal Court, Decision BGE 122 I 275, 13 November 1996, para. 3.b. Free legal representation was granted in Decision 2C_906/2008, 28 April 2009.

[3]  The “Kontaktstelle für Zwangsmassnahmenbetroffene” is active since 2008. More information is available at: https://bit.ly/2Va0CY7.

[4]  Decisions of the Federal Administrative Court D-5705/2019 of 25 November 2019, available at: https://bit.ly/39h8oTi; and E-6958/2019 of 8 January 2020, available at: https://bit.ly/2QIcwFE.

 

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