Decision on the Qualification of the Detention Court III Bern-Mittelland as the Upper Cantonal Court

Facts

X., originally from Kosovo, born in 1964, had been living in Switzerland since 1985 with a seasonal permit and since 1992 with a residence permit. After his permit was no longer extended and his asylum application was rejected, he and his family members were provisionally admitted on September 13, 2001. On December 11, 2003, the District Court IV Aarwangen-Wangen convicted X. of, among other things, intentional homicide and attempted intentional homicide, and sentenced him to seven years of penitentiary and ten years of expulsion from the country. The High Court of the Canton of Bern confirmed this judgment on November 11, 2004. On September 9, 2003, the Federal Office for Migration revoked the provisional admission. On April 21, 2008, the wife of X. and his children obtained Swiss citizenship. After a request for the issuance of a residence permit to X. in view of his release from criminal custody was not considered, he filed an asylum application on October 9, 2008. On October 12, 2008, X. was conditionally released from criminal custody and taken into preparatory detention on the same day. The Detention Judge 7 at the Detention Court III Bern-Mittelland examined and confirmed the detention on October 15, 2008. On October 27, 2008, the Federal Office for Migration rejected the asylum application. X. appealed against this to the Federal Administrative Court, which is still pending.

On January 8, 2009, the Detention Judge 7 at the Detention Court III Bern-Mittelland rejected an application by the Foreigners' and Citizenship Service of the Cantonal Police of Bern to convert the preparatory detention into deportation detention, but at the same time approved the extension of the preparatory detention until April 11, 2009. X. also appealed against this on January 15, 2009 with a public law appeal to the Federal Supreme Court.

Considerations

The Federal Supreme Court examines its jurisdiction and the admissibility requirements ex officio and with free cognition. According to Art. 86 para. 2 BGG, the cantons shall establish upper courts as the immediate lower instances of the Federal Supreme Court, unless decisions of other judicial authorities are subject to appeal to the Federal Supreme Court under another federal law.

The Detention Court III…