Refusal of free legal aid in data protection proceedings concerning the ZEMIS date of birth; recusal objection forfeited

Facts

The appellant, an asylum seeker, filed an asylum application in Switzerland on 28 September 2022 and stated that he was born on 15 April 2005. By decision of 13 February 2023, the State Secretariat for Migration (SEM) declined to enter into the application and ordered his removal to Bulgaria. In the Central Migration Information System (ZEMIS), the date of birth was registered as 1 January 2004 with a note of contestation.

The Federal Administrative Court dismissed the appeal against the non-entry decision and the removal order by judgment of 30 March 2023, and held that the change of data in ZEMIS would be assessed in a separate proceeding.

In the data protection proceedings, the investigating judge, by interlocutory decision of 17 April 2023, rejected the application for free legal aid, set an advance on costs of CHF 500.-- with a time limit of 30 days, and threatened non-entry in the event of non-compliance. An application for superprovisional measures to register the date of birth 15 April 2005 was likewise rejected. The reasoning stated that minority had not been made credible in the asylum proceedings and that the appeal appeared hopeless.

By appeal in public law matters of 19 May 2023, the appellant requested the annulment of the interlocutory decision, the granting of free legal aid, waiver of the advance on costs, alternatively remittal, and, as a precautionary measure, a stay of enforcement with respect to the transfer to Bulgaria. The Federal Administrative Court requested dismissal; the SEM waived its response. By presidential order of 15 June 2023, the Federal Supreme Court dismissed the request for interim measures, as the postponement of removal concerned the asylum proceedings and lay outside the subject matter of the dispute.

Key questions: admissibility of an appeal against an interlocutory decision on legal aid; sufficient substantiation of fundamental rights complaints (Art. 29 para. 3 Cst., Art. 6 ECHR, Art. 8 para. 1 Cst.); guarantee of access to the courts (Art. 29a Cst.); bias of the judge.

Considerations

The contested decision relates primarily to the entry of the date of birth in ZEMIS and thus to a data protection or public law matter (Art. 82 let. a and Art. 86 para. 1 let. a FSCA). The exception under Art. 83 let. d FSCA does not apply, as there is no asylum decision. It is an interlocutory decision under Art. 93 para. 1 let. a FSCA, which is only appealable if it may cause an irreparable disadvantage. This is the case with the refusal of free legal aid where the indigent person faces the loss of the proceedings (BGE 142 III 798 E. 2; 129 I 129 E. 1.1). The appeal is admissible in this respect.

Under Art. 42 para. 2 FSCA, the appeal must set out concisely how the law has been violated. Fundamental rights complaints are only examined if qualifiedly substantiated (Art. 106 para. 2 FSCA). The complaint of a violation of Art. 29 para. 3 Cst. is not sufficiently substantiated, as the appellant does not refute the Federal Administrative Court's considerations on hopelessness in the judgment of 30 March 2023. The complaints concerning Art. 6 ECHR, Art. 8 para. 1 Cst. (equality before the law), Art. 3 ECHR and the best interests of the child also do not meet the requirements, as neither a concrete disadvantage nor an unlawful separation of proceedings has been shown.

The complaint of a violation of the guarantee of access to the courts (Art. 29a Cst.) is unfounded. Art. 29a Cst. grants a right to judicial…