Facts
Parties and procedural history:
The complainant, a foreign national born in Algeria in 1985, unsuccessfully sought asylum in Switzerland on 25 March 2015. On 16 May 2017, the State Secretariat for Migration (SEM) ordered his removal, which he did not comply with. The complainant repeatedly committed criminal offences, including being sentenced on 14 March 2017 by the Zurich District Court to 42 months’ imprisonment for multiple robbery and attempted serious bodily harm, and on 12 October 2021 by the summary penalty order of the Limmattal/Albis Public Prosecutor’s Office to six months’ imprisonment for theft and other offences. The authorities of the Canton of Graubünden repeatedly attempted to deport him to Algeria, which failed due to pandemic measures and his conduct.
On 7 February 2022, the complainant was taken into criminal custody in the Realta/GR prison, with release scheduled for 27 July 2022. After his release from criminal custody, the Office for Migration and Civil Law of the Canton of Graubünden took him into removal detention on 18 July 2022 to enforce the removal order. A deportation flight was planned for 28 July 2022 but failed due to the extended duration of the criminal custody. On 28 July 2022, the Coercive Measures Court of the Canton of Graubünden approved his continued detention until 27 October 2022 and rejected the application for free legal representation. On 17 August 2022, the Cantonal Court of Graubünden upheld this decision and also refused free legal aid and legal representation.
The complainant filed an appeal with the Federal Supreme Court seeking the setting aside of the Cantonal Court of Graubünden’s decision of 17 August 2022 and his immediate release from detention. He argued that his detention conditions did not comply with the legal requirements, that the lower court had not examined his objections and that he had been wrongly denied free legal aid and legal representation. On 26 August 2022, the Presiding Judge of the Division rejected the application for immediate release. The Office for Migration and Civil Law of the Canton of Graubünden and the Cantonal Court of Graubünden requested that the appeal be dismissed.
Considerations
1. Admissibility of the appeal:
The Federal Supreme Court examines the appeal in public-law matters against the cantonal last-instance decision on removal detention. As deprivation of liberty in the context of administrative detention constitutes a serious interference with personal freedom, it is of independent significance. The exclusion ground under Art. 83 lit. c no. 4 FSCA does not preclude the appeal. All procedural requirements are met, so the appeal is admissible (Art. 42, 82 lit. a, 86 para. 1 lit. d, 89 para. 1, 90, 100 para. 1 FSCA).
2. Duty to raise objections and scope of review:
The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA), but reviews only the arguments raised, unless there are obvious legal defects. A qualified duty to substantiate applies to complaints of violations of fundamental rights (Art. 106 para. 2 FSCA). The facts are binding on the findings of the lower court (Art. 105 para. 1 FSCA), unless they are obviously incorrect or incomplete (Art. 105 para. 2 FSCA). Where the appeal does not comply with these requirements, it will not be examined.
3. Detention conditions and legal requirements:
Under Art. 81 para. 2 FNIA, administrative detention must be served in a special detention facility designated for this purpose (removal centre). Detention in an ordinary prison is only permissible in absolute exceptional cases, provided that important reasons exist and separation from other detainees is ensured (BGE 146 II 201 para. 4–7; Judgments 2C_280/2021, 2C_961/2020, 2C_844/2020). The Realta prison is not a special removal facility but primarily serves criminal custody. Although it has a separate section for administrative detention, which comprises only 16 of 120 places and, according to the report of the National…