H. gegen Staatsanwaltschaft des Kantons Aargau (6S.737/1998) (unofficial English translation)

This is an unofficial English translation of the decision. For any reference or citation to the decision, please consult the original decision (in German) as published in the Swiss law report ASYL 2/99 on pages 21-23.

Regarding the Facts          

In May 1994, the Afghan national H. entered Switzerland in the car of a smuggler from Italy, passing the Swiss customs control using a forged Singaporean passport. At the end of September of the same year, H. was sentenced by the Aarau District Office for illegal entry into Switzerland (Art. 23 para. 1 ANAG) and use of a forged document (Art. 252 para. 1 SIGB) to 1.4 days in prison, conditionally executable with a probation period of 2 years, and a fine of 200 francs. The penalty order became legally binding. In January 1996, H. filed a request for the reopening of the proceedings, as she had meanwhile been recognized as a refugee. After the rejection of the reopening of the proceedings by two instances (Aarau District Court and Aargau Cantonal Court), H. had to go to the Federal Court to obtain justice: it upheld the nullity complaint and referred the matter back to the cantonal instances for a new decision.

In November 1997, the Aarau District Court sentenced H. to a fine of 500 francs. In June 1998, the Cantonal Court acquitted H. of the charge of forgery of documents and sentenced her to a fine of 200 francs for illegal entry into Switzerland. H. filed a federal nullity complaint against this.

From the Considerations

1. According to Art. 23 para. 1 ANAG, among other things, anyone who unlawfully enters the country (Art. 23 para. 1 ANAG) is punished. According to Art. 23 para. 3 sentence 2 ANAG, refugees who have fled to Switzerland are exempt from punishment if the nature and severity of the persecution justify the unlawful border crossing. Art. 31 para. 1 of the Convention Relating to the Status of Refugees of July 28, 1951, states:

“The contracting states shall not impose penalties on refugees who come directly from a territory where their life or freedom was threatened in the sense of Art. 1, and who present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

a) In its first judgment of July 19, 1996 (regarding the reopening of the proceedings), the lower court stated that although the status of the complainant as a refugee was to be affirmed, not all other conditions mentioned in Art. 31 para. 1 of the Refugee Convention were met. The complainant had traveled through Italy for two days and thus did not enter Switzerland directly from a territory where her life or freedom was threatened within the meaning of Art. 31 para. 1 of the Refugee Convention. Furthermore, there was no reason for the complainant to enter Switzerland illegally with a smuggler organization using a forged passport instead of applying for asylum properly at the Swiss embassy in Italy or at an open border post. The conditions of Art. 23 para. 3 ANAG were also not met, as the complainant was not persecuted in any way in Italy.

2. a) The application areas of Art. 23 para. 3 sentence 2 ANAG and Art. 31 para. 1 of the Refugee Convention, as well as the relationship between these two provisions, are unclear. Art. 23 para. 3 sentence 2 ANAG corresponds to Art. 23 para. 2 sentence 2 (a) ANAG, which was introduced as part of the partial revision of 1948. According to the statements in the Federal Council’s message, real refugees should be exempt from punishment for illegal border crossing based on the experiences from the last wartime (BBl 1948 I 1293 ff., 1300). In the Federal Council’s message on the draft decision on the approval of the [Refugee] Convention, it is stated that Art. 31 para. 1 of the Convention essentially corresponds to Art. 23 para. 2 (a) ANAG regarding illegal border crossing (BBl 1954 II 69 ff., 81).

b) Although Art. 31 para. 1 of the Refugee Convention is formulated as an instruction to the contracting states, it is sufficiently specific to be directly applied by the authorities (unpublished judgment of the Court of Cassation of December 14, 1988, partially reproduced in ASYL 1989/1 5.13 f.; see also BGE 112 IV 115). Art. 31 para. 1 of the Refugee Convention, as a more recent and specific provision of an international agreement, takes precedence over Art. 23 para. 3 sentence 2 ANAG. The latter provision has no independent significance in cases of illegal entry by foreigners who are persecuted in a state not directly bordering Switzerland, compared to Art. 31 para. 1 of the Refugee Convention. In particular, it cannot be assumed that a refugee must remain exempt from punishment under Art. 23 para. 3 sentence 2 ANAG if the condition of direct entry from the persecuting state mentioned in Art. 31 para. 1 of the Refugee Convention is not met. The complainant herself rightly does not claim this.

3. a) The lower court stated that the complainant had not provided any valid reasons throughout the proceedings for why she passed the border control in Chiasso on May 6, 1994, using a forged Singaporean passport. Since the complainant was in possession of a genuine Afghan identity card, she could have identified herself as an Afghan national at the border control, explained her situation, and applied for asylum. The risk of being turned away at the border due to a lack of visa or other reasons does not constitute a valid reason for illegal entry. The complainant was fully aware of her illegal behavior on May 5, 1994. This is clearly evident from her statements during the police interrogation on November 19, 1994, in which she admitted that the Singaporean passport she presented to the Swiss customs control was forged in the sense that her photo was inserted into it.

b) The refugee must provide “good cause” (“des raisons reconnues valables”; “good cause”) for their illegal entry. Good cause is not to be assumed simply because the illegal entrant is threatened in a certain country in the relevant sense. On the other hand, the refugee does not need to provide good cause for why they entered Switzerland and not another country that could also offer protection. The “good cause” must relate to the illegality of the entry. A refugee has good cause for illegal entry, particularly if they must seriously fear that, in the case of a proper asylum application at the Swiss border, they would not receive permission to enter Switzerland because the conditions mentioned in Art. 13c AsylG and Art. 4 AsylV 1 are not met. A foreigner who enters Switzerland illegally due to this justified concern to submit their asylum application inland (Art. 13f para. 2 AsylG, Art. 6 AsylV 1) should be granted good cause if they are considered a refugee.

This is the case here. The complainant would have had to seriously fear that, in the case of submitting an asylum application at the Swiss border, she would not receive permission to enter Switzerland because she neither possessed the required entry document or visa (Art. 13c para. 1 lit. a AsylG) nor was threatened in the relevant sense in the neighboring state of Italy, from which she wished to enter Switzerland (see Art. 13c para. 1 lit. b AsylG in conjunction with Art. 4 para. 1 sentence 1 AsylV 1). Although she possessed an Afghan identity card, it is not clear on what grounds the lower court concluded that the identity card was “valid.” The lower court itself apparently does not assume that the identity card was the required entry document or visa in the sense of Art. 13c para. 1 lit. a AsylG. However, the Federal Office also grants entry into Switzerland if the foreigner credibly demonstrates that the country from which they directly come would force them to leave to a country where they appear endangered, in violation of the principle of non-refoulement (Art. 13c para. 2 lit. a AsylG). It is excluded that the complainant could have credibly demonstrated this regarding Italy, from where she directly came. Although the foreigner, to whom the Federal Office denies entry at the border, can submit an asylum application at a Swiss representation abroad (see Art. 5 para. 1 AsylV 1), the complainant had to seriously fear that in this case, entry into Switzerland would not be granted with the reasoning that she could be expected to remain in the country of residence or leave to another country (see Art. 13b para. 2 AsylG) and that an immediate danger to life, limb, or freedom was not credibly demonstrated (see Art. 13b para. 3 AsylG).

The complainant, who is undisputedly a refugee, thus had good cause for her illegal entry into Switzerland within the meaning of Art. 31 para. 1 of the Refugee Convention, with the aim of submitting an asylum application inland (see Art. 13a sentence 2 in conjunction with Art. 13f para. 2 AsylG and Art. 5 AsylV 1) by revealing her true identity and presenting the only available Afghan identity card, to have the chance that her situation in Afghanistan would be reviewed by the Swiss authorities and she would be recognized as a refugee.

4. Art. 31 para. 1 of the Refugee Convention also requires that the illegally entered foreigner presents themselves to the authorities “without delay” (“sans délai”; “without delay”).

b) Whether the immediacy required by Art. 31 para. 1 of the Refugee Convention is met cannot be determined abstractly but must be decided on a case-by-case basis considering all circumstances. From the contested judgment (pp. 7, 9 f.), it is evident that the complainant entered Switzerland in Chiasso on May 6, 1994, using a forged Singaporean passport, and reported to the reception center in Kreuzlingen on the same day, where she submitted an asylum application (revealing her true identity). Thus, the complainant presented herself to the authorities without delay within the meaning of Art. 31 para. 1 of the Refugee Convention. The fact that she did not present herself to the Swiss authorities in Chiasso or another city in Ticino or did not report to the nearest reception center is irrelevant. In this context, it should be noted that the asylum legislation obliges the applicant to report to the reception center “within 24 hours” (see Art. 4 para. 3, Art. 6 para. 3 AsylV 1).

5. a) According to the lower court, the complainant did not come “directly” from a territory where her life or freedom was threatened within the meaning of Art. 31 para. 1 of the Refugee Convention. The complainant had stayed in Italy for two days before entering Switzerland, where she was no longer threatened. The invocation of Art. 31 para. 1 of the Refugee Convention presupposes that the asylum seeker who entered Switzerland illegally was persecuted in a neighboring state. If the foreigner enters Switzerland by land, a neighboring state is understood to be a state bordering Switzerland. If the foreigner enters by air, the neighboring state is the departure state.

The complainant argues that the direct entry required by Art. 31 para. 1 of the Refugee Convention should not be understood spatially. Direct entry also applies to someone who, on their flight from the persecuting state, travels through several third countries by land. The protection concept of Art. 31 para. 1 of the Refugee Convention only ceases to apply to a refugee who has stayed for a longer period in a country where they could also have taken advantage of a rule-of-law asylum procedure. Regarding the question of direct entry from the persecuting state, reference should also be made to Art. 6 para. 1 lit. a AsylG and Art. 2 AsylV 1, according to which an asylum application is generally rejected if the applicant has stayed for some time, usually 20 days, in a third country before entering Switzerland, to which they can return. The requirement of “direct entry” in Art. 31 para. 1 of the Refugee Convention is met in this case. The complainant neither had the opportunity to obtain a residence permit in a transit state nor did she establish a “séjour établi” anywhere. If the lower court’s view were followed, there would be no room for the application of Art. 31 para. 1 of the Refugee Convention in Switzerland, as far as refugees travel by land.

b) Art. 31 para. 1 of the Refugee Convention requires, among other things, that the refugee comes “directly” (“directement”; “directly”) from a territory where their life or freedom was threatened in the sense of Art. 1 of the Convention. This directness is not to be understood in a spatial, geographical sense; it is therefore not necessary that the person who entered illegally by land was threatened in the relevant sense in the state from which they entered Switzerland. There is no substantive reason to treat refugees who enter Switzerland by land through several states where they are not threatened in the relevant sense worse than refugees who arrive directly from the persecuting state by air. A refugee enters “directly” (“directement”; “directly”) if they arrive in Switzerland purposefully, without significant voluntary delays, from the persecuting state. The fact that they travel through several third countries and particularly one or more neighboring states of Switzerland where they are not persecuted in the relevant sense is irrelevant.

Art. 31 para. 1 of the Refugee Convention cannot be interpreted in the same way as Art. 13c para. 1 lit. b AsylG in conjunction with Art. 4 para. 1 AsylV 1 (regarding asylum applications at the border and entry permits), according to which the country from which the foreigner directly arrives in Switzerland is understood to be a neighboring state, and in the case of asylum applications at airport border controls, the state from which the flight to Switzerland departs is considered a neighboring state (see Art. 4 para. 1 AsylV 1). On the other hand, the direct entry from the persecuting state required by Art. 31 para. 1 of the Refugee Convention is not automatically given if the refugee has not stayed in any third country for more than 20 days during their journey (cf. Art. 6 para. 1 lit. a AsylG and Art. 2 AsylV 1). However, a stay of more than 20 days in a third country during the journey does not automatically exclude directness in every case. What matters is why the refugee stayed in a third country for how long and what they did there. The requirement of direct entry from the persecuting state within the meaning of Art. 31 para. 1 of the Refugee Convention cannot, therefore, be denied on the grounds that the complainant traveled through Italy by land for two days.

c) The contested judgment and the first-instance decision do not show where the complainant stayed for how long and for what reasons before reaching Italy. The lower court had no reason to clarify these factual questions, as it believed that the two-day journey of the complainant through Italy excluded the directness required by Art. 31 para. 1 of the Refugee Convention.

A referral of the matter back to the lower court to supplement the facts (Art. 277 BStP) and for a new decision is unnecessary for the following reasons. During his interrogation at the Kreuzlingen reception center, the complainant’s husband stated that he and the complainant left Afghanistan on March 30, 1994. He described the travel route according to the interrogation protocol contained in the asylum procedure files as follows: “Left Kabul by car to Kandahar. From Kandahar by car to Pakistan/Jaman. With the same car from Jaman to Quetta. We stayed in Quetta for a month. By bus from Quetta to Karachi. By plane from Karachi to Italy/Rome with PIA.

I t can be assumed that the Federal Office for Refugees granted asylum to the complainant, knowing about the approximately one-month stay in the third country Pakistan described by her husband. This implies that the Federal Office for Refugees assumed that the complainant and her husband either had to stay in Pakistan for more than 20 days due to special circumstances (see Art. 6 para. 1 lit. a AsylG in conjunction with Art. 2 AsylV 1) or that they could not return to the third country Pakistan (see Art. 6 para. 1 lit. a AsylG). In either case, despite the approximately one-month stay of the complainant in Pakistan on the journey from Afghanistan via Italy to Switzerland, the directness in the sense of Art. 31 para. 1 of the Refugee Convention is given. However, it cannot be excluded that the Federal Office for Refugees granted asylum to the complainant and her husband for some reasons as an exception to the rules contained in the mentioned provisions, in which case the positive asylum decision would not automatically imply directness in the sense of Art. 31 para. 1 of the Refugee Convention. Considering that the entry into Switzerland, which is the subject of the proceedings, took place on May 6, 1994, almost five years ago, and a fine of 200 francs is at issue, further clarifications are unnecessary.

The complainant thus entered Switzerland directly from Afghanistan in the sense of Art. 31 para. 1 of the Refugee Convention.

6. In summary, the following emerges: The complainant is undisputedly a refugee. Contrary to the opinion of the lower court, she had good cause for the illegal entry into Switzerland in the sense of Art. 31 para. 1 of the Refugee Convention. She presented herself to the authorities without delay after her entry. The directness of the entry from the persecuting state in the sense of Art. 31 para. 1 of the Refugee Convention cannot be denied on the grounds that the complainant traveled through Italy by land for two days, where she was not threatened. The complainant, who left Afghanistan at the end of March 1994 and entered Switzerland on May 6, 1994, where she was granted asylum by decision of August 5, 1994, entered Switzerland directly from her homeland Afghanistan in the sense of Art. 31 para. 1 of the Refugee Convention, despite the approximately one-month stay in the third country Pakistan as evidenced by the asylum procedure files.

Since all four conditions of Art. 31 para. 1 of the Refugee Convention are met, the conviction of the complainant for an offense in the sense of Art. 23 para. 1 (al. 1 and 4) ANAG for unlawfully entering the country using a forged foreign police exit document violates federal law. Art. 31 para. 1 of the Refugee Convention generally concerns “illegal entry,” regardless of which criminal offenses this behavior fulfills under applicable national law, and regardless of whether the perpetrator enters Switzerland illegally without papers or using forged papers.

7. The federal nullity complaint is therefore upheld, the judgment of the Cantonal Court of June 29, 1998, is annulled, and the matter is referred back to the lower court for a new decision.