Cantonal law on the application of federal norms concerning coercive measures in the field of foreigners' law (Lamc)

[3] This Act governs the application of federal provisions concerning coercive measures under aliens law (hereinafter CM).

[3] Art. amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491; previous amendment: BU 2002, 31.

1 A substitute measure may be ordered if the purpose of pre-trial detention can be achieved by providing bail, depositing documents, regularly appearing, residing in a determined place, or other suitable measures.

**2 The measures referred to in paragraph 1 may be decided individually or cumulatively.**

1 As far as not provided for by law, the Council of State shall establish by Regulation the modalities of execution, particularly in relation to the designation of the administrative authority competent to order and execute the measures.

2 In particular, the Council of State shall designate the administrative authority competent to

a) issue the decision of detention and its extension according to the MC;

b) issue the decision of prohibition from leaving a territory, prohibition from accessing a territory, as well as any other substitute measure suitable to ensure the application of federal law;

c) inform the person designated by the detainee;

d) order and execute a body search;

e) order arrest. [4]

Judge of Coercive Measures [5]

[4] Para. modified by Law of 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

[5] Marginal note modified by Law of 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

[6] 1 The judicial authority provided for by the Code of Criminal Procedure (hereinafter referred to as the Code) is the Judge of Coercive Measures (hereinafter referred to as the Judge).

2 The Judge and their two deputies are appointed by the Council of State for a period of 4 years; the Judge must be chosen from among the judges of the civil jurisdiction; the deputies may be chosen from among lawyers registered in the cantonal register.

Competences of the Judge

[6] Art. amended by the L 2.12.2008; in force since 27.1.2009 - BU 2009, 20; previous amendments: BU 2007, 22; BU 2008, 491.

[7] The judge rules on detention, as well as on imprisonment and its extension. Furthermore, he orders house searches or searches of other premises and release from custody.

[7] Art. amended by Law 2.6.2008; in force since 25.7.2008 – BU 2008, 491.

The personal search of a foreign national may only be carried out by persons of the same sex.

The foreign national has the right to be heard before the administrative authority orders a decision concerning coercive measures in the field of foreign nationals' law.

The foreign person who does not know the Italian language has the right, at every stage of the procedure, to the presence of an interpreter.

Lawyer [9]

[9] Marginal note amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

A foreign national may avail themselves of the assistance of legal counsel at every stage of the procedure.

... [10]

Appointment of interpreter [11]

[10] Article abrogated by Law of 15.3.2011; in force since 1.1.2011 - BU 2011, 264; previous amendment: BU 2002, 220.

[11] Marginal note amended by Law of 3.6.2002; in force since 30.7.2002 - BU 2002, 220.

[12] The provisions of the Code of Criminal Procedure of 5 October 2007 are applicable for the designation of an interpreter.

Adolescents who have reached the age of 15 [13]

[12] Art. amended by Law of 20.4.2010; in force since 1.1.2011 - RO 2010, 260; previous amendment: RO 2002, 220.

[13] Marginal note amended by Law of 2.6.2008; in force since 25.7.2008 - RO 2008, 491.

The adolescent has the right to assistance from social services in accordance with legislation concerning the protection of adolescence.

The duration of imprisonment must be limited to the absolute minimum necessary.

Premises and Regime of Imprisonment [15]

[15] Marginal note amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

1 Imprisonment shall, in principle, be carried out in suitable premises separate from those intended for pre-trial detention or the execution of sentences.

2 The regulations shall provide for the material conditions and modalities of the detention regime, including legal remedies and the appeal authority, in respect of matters not established by law.

The foreign person incarcerated has the right to respect for their dignity, physical and psychological integrity, and religious beliefs.

Information [16]

[16] Marginal note amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

The imprisoned foreign national shall be informed, in a language they understand, of the general and specific provisions concerning their rights and duties, as well as the possibility of notifying a person designated by them residing in Switzerland of their incarceration.

Every foreign detainee is examined by the assigned doctor at the latest within 7 days of their incarceration.

Work [17]

[17] Marginal note amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

To the extent possible, a remunerated and suitable occupation is offered to foreign inmates.

Foreign inmates are entitled to at least 1 hour of outdoor exercise per day.

The imprisoned foreign national may maintain, at their own expense, free correspondence by letter, telephone, or fax.

Visits [18]

[18] Marginal note amended by L 2.6.2008; in force since 25.7.2008 – BU 2008, 491.

Foreign prisoners may freely receive visits from family members, representatives of humanitarian and welfare organizations, or other persons.

The administrative authority may limit, in whole or in part, the rights referred to in Articles 14-21 for reasons of public order or whenever their exercise would burden the efforts of the authorities in the preparations for departure.

The foreign national in prison as well as their personal effects and their cell may be searched.

1 The administrative authority may issue a disciplinary sanction against an incarcerated person who has violated the common rules of detention or of the Institute.

2 The sanction may consist of a warning, the limitation of certain rights pursuant to Articles 14-21, or solitary confinement.

3 The duration of detention in solitary confinement may not exceed five days.

The foreign inmate has the right at all times to file a complaint against the conditions of detention or the restrictive measures to which they are subject.

[20] 1 The person detained must be immediately informed of the right to request judicial review of their status.

2 The request, in writing, must be submitted to the Judge no later than two days after the cessation of the detention.

3 The examination of the lawfulness of the detention takes place according to the written procedure, reserving cases in which the Judge decides otherwise.

[20] Art. introduced by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

The administrative authority immediately sends the decision of imprisonment and the relevant file to the Judge.

[21] Subject to the cases provided for by federal law on coercive measures, the judicial review of detention takes place on the basis of a hearing in oral proceedings.

Review of detention and hearing [22]

[21] Art. introduced by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

[22] Marginal note modified by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

[23] The Judge examines the legality and adequacy of the decisions submitted for his confirmation, at the latest within 96 hours of the detention order, personally hearing the foreign national and confirming the detention or ordering their immediate release, imposing, if necessary, a substitute measure pursuant to Art. 2.

Application for release [24]

[23] Art. amended by L 27.11.2006; in force since 19.1.2007 - BU 2007, 22.

[24] Marginal note amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

The Judge decides on the application for release within eight working days.

Application for extension [25]

[25] Marginal note amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

The request for an extension of imprisonment must be reasoned and submitted to the Judge at the latest seven days before the release from prison foreseen by the decision.

Term of imprisonment [26]

[26] Marginal note amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491.

Imprisonment ends if

a) the reason for imprisonment has ceased to exist;

b) the execution of the removal or expulsion is impossible for legal or actual reasons;

c) the request for release has been granted;

d) the imprisoned person begins to serve a sentence or a custodial measure.

[27] The decision on detention confirmed by the Judge may be appealed to the Cantonal Administrative Court within 15 days of notification.

[27] Art. reintroduced by L 2.12.2008; in force since 27.1.2009 – BU 2009, 20; previous amendment: BU 2007, 22.

[28] 1 Coercive measures of the administrative authority that do not involve deprivation of personal liberty may be challenged before the Judge within 15 days of notification.

2 The Judge's decision may be challenged before the Cantonal Administrative Court within 15 days of notification. [29]

[28] Art. amended by L 2.6.2008; in force since 25.7.2008 - BU 2008, 491; previous amendment: BU 2007, 22.

[29] Para. introduced by L 2.12.2008; in force since 27.1.2009 - BU 2009, 20.

[30] The appeal does not have suspensive effect.

[30] Art. amended by L 2.6.2008; in force from 25.7.2008 - BU 2008, 491.

This Law applies to all proceedings pending at the time of its entry into force.

Entry into force

Once the deadlines for exercising the right of referendum have expired, the present law shall be published in the Official Bulletin of Laws and Executive Acts of the Canton of Ticino and shall enter into force immediately. [31]

Published in OB 1997, 245 and 326.

[31] Entry into force: May 27, 1997 - OB 1997, 245.