Author
Conditions in specialised facilities, prisons and pre-trial facilities
Article 81(3) FNIA states that detention conditions must consider 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 EU 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 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) 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 characterised 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 akin 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 2023, the Committee for the Prevention of Torture recommended Swiss authorities to ensure the reform of the reportedly prison-like environment of administrative detention facilities, which includes limitations on visitation rights and confiscation of personal belongings.[5] The Committee shared its concern that conditions in such facilities are harsh.[6]
The NCPT regularly visits carceral facilities used for purposes of criminal justice and/or immigration detention.[7] 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.[8] In its various reports, the NCPT recommended more freedom of movement be provided by the cantons: 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. According to NCPT, occupational programmes should be offered to detainees. For detailed information about the conditions in many of the detention centres, see previous updates to this report.[9]
The detention centre in Favra is still operating despite the Cantonal administrative tribunal of Geneva ruling that the conditions of detention violate Article 3 ECHR in a judgement of March 2023[10] and the NCPT having recommended[11] closing the facility.
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.[12]
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.[13]
Detained asylum applicants have access to health care in practice. As asylum applicants 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 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 a 2022 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]
The FNIA provides for an additional 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 applicants 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 applicants 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] There is no school for children, or any occupation program available for asylum applicants.[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 has a capacity of 60 places and is composed of three dormitories: for men, women, and families.[21] Asylum applicants have access to a terrace, a praying room, and an area with shops and restaurants.[22] The terrace is the only place outside 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 October 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 SKMR, Bern, 28 May 2020, 4, available here.
[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 SKMR, Bern, 28 May 2020, 5, available here, p. 5.
[5] UN Committee against Torture CAT, Concluding observations on the eighth periodic report of Switzerland, 11 December 2023, available here.
[6] UN Committee against Torture CAT, Concluding observations on the eighth periodic report of Switzerland, 11 December 2023, available here.
[7] In 2024, the NCPT visited the following facilities: The centre for administrative detention in Zurich, report of 3 September 2024 and statement of the canton Zurich of 25 September 2024 in German; the regional detention centre Moutier (visited on 24 Janaury 2024, report of 2 July 2024), the report on the visit of the detention centre Bässlergut was publised on 2 July 2024, the report of the visit of the detention centre in Frambois of 4 October 2023 was published on 30 July 2024.
[8] Report of the NCPT on the forth Universal Periodic Review of Switzerland, 13 July 2022, available in English.
[9] See previous versions of this report: AIDA, Country Report: Switzerland, available here.
[10] Judgement of the Cantonal administrative tribunal of Geneva, JTAPI/422/2023, 20 April 2023, ch. 27.
[11] NCPT, Report on the forth Universal Periodic Review of Switzerland, 13 July 2022, p. 7, available here.
[12] 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 here, p. 18.
[13] 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 here, paras 249-251.
[14] See the reports issued by the Swiss national CAT Committee, the 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 here.
[15] NCPT/NKVF, Gesamtbericht über die schweizweite Überprüfung der Gesundheitsversorgung im Freiheitsentzug durch die Nationale Kommission zur Verhütung von Folter (2018 – 2019)”, January 2022, available (in German) here, p. 28.
[16] NCPT, Gesamtbericht über die schweizweite Überprüfung der Gesundheitsversorgung im Freiheitsentzug durch die Nationale Kommission zur Verhütung von Folter (2019 – 2021), January 2022, available (in German) here.
[17] Article 81(5) and (6) FNIA.
[18] Terre des Hommes, État des lieux sur la détention administrative des mineures migrantes en Suisse, November 2018, available here, p. 56.
[19] NCPT, Report on federal asylum centres 2019-2020, p. 17.
[20] NCPT, Report on federal asylum centres 2019-2020, p. 35.
[21] Le Temps, Des requérants d’asile bloqués, à Zurich, en zone de transit, available in French here.
[22] Le Temps, Des requérants d’asile bloqués, à Zurich, en zone de transit, available in French here.