CAT/OP/CHE/CSPRO/1 concerned. This practice is in line with the European return directive. 19 The 18-month maximum relates exclusively to administrative detention under the law on foreign nationals. It does not apply to inmates serving a sentence, for example, following a conviction for an offence under article 115 of the Federal Act on Foreign Nationals and Integration. This is because the purpose of a criminal conviction is different from that of administrative detention. Criminal law is aimed at protecting society from offenders, while administrative detention under the law on foreign nationals is ordered in view of removal proceedings or to ensure that removal or expulsion orders are carried out. Swiss law does not, in principle, preclude cumulative detention – under administrative law and for the purpose of serving a sentence. 116. Paragraph 126: The Subcommittee recalls that detention of migrants in an irregular situation should be a last resort. 117. Article 115 of the Federal Act on Foreign Nationals and Integration was amended on 1 June 2019 to ensure that custodial sentences may no longer be imposed or enforced solely on the basis of illegal stay where removal proceedings are pending or are to be initiated. This amendment was made in accordance with the case law of the Federal Supreme Court on the criminal prosecution for illegal stay of foreign nationals in respect of whom removal proceedings are under way.20 The case law of the Federal Supreme Court is based on the decisions of the Court of Justice of the European Union in connection with the return directive. According to these decisions, the return directive precludes national legislation imposing a prison sentence on an illegally staying third-country national during the return procedure. A pending removal procedure may not be prevented by a custodial sentence imposed and enforced solely on the basis of an illegal stay.21 The competent authority is thus entitled to waive criminal proceedings, referral to a court or sentencing of persons who have entered or left Switzerland or are staying there illegally when removal or expulsion proceedings are pending (Federal Act on Foreign Nationals and Integration, art. 115 (4)). In accordance with the decisions of the Court of Justice of the European Union, 22 a custodial sentence may be imposed and enforced only if the person concerned has re-entered Switzerland in breach of a prohibition on entry or if his or her conduct has prevented the enforcement of a removal or expulsion order (Federal Act on Foreign Nationals and Integration, art. 115 (6)). Imprisonment under article 115 of the Federal Act on Foreign Nationals and Integration may thus be imposed only in exceptional cases. Living arrangements 118. Paragraph 131: The Subcommittee recommends that detainees be given more access to outside space and that a wider range of activities be offered. 119. According to the authorities of the Canton of Geneva, detainees have a minimum of one hour’s exercise per day. However, this period is often extended, if the weather allows and enough staff are available. It was precisely the shortage of staff at Favra that led the authorities to limit stays at the facility to 30 days, to the extent possible (the average stay in 2019 was 18 days). Health care 120. Paragraph 136: The Subcommittee is of the view that the regular presence of a psychologist in each establishment would provide valuable psychological support. 121. According to the authorities of the Canton of Geneva, detainees are provided with psychological support at their request or on the recommendation of a member of staff and/or a doctor. However, demand for support of that kind remains sporadic. Without minimizing 19 20 21 22 18 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. Federal Supreme Court decision 6B 196/2012 of 24 January 2013. See Court of Justice of the European Union, Case C-329/11 (Achughbabian); Case C-61/11 PPU (El Dridi). See Court of Justice of the European Union, Case C-329/11 (Achughbabian); Case C-61/11 PPU (El Dridi); Case C-290-14 (Celaj). GE.21-03864