Facts
The plaintiff A., an Algerian national, was convicted by the Geneva Police Court for violation of expulsion order (Art. 291 SCC) and sentenced to a term of imprisonment of nine months and to the procedural costs. A. had stayed in Switzerland without authorization and had already been previously convicted for various offenses, including illegal entry and illegal stay. The Geneva Cantonal Court confirmed the judgment of the Police Court. A. appealed to the Federal Court and requested a fine, his immediate release, and compensation for the unlawful detention since May 31, 2020. He also applied for the provision of legal assistance.
Considerations
The Federal Court found that the conviction of the defendant to a term of imprisonment for violation of expulsion order was not compatible with the Return Directive, as no measures had been taken to carry out his removal or had failed due to his conduct. Directive 2008/115/EC of the European Parliament and of the Council establishes that a person who is illegally present in the territory of a Member State may only be subject to a term of imprisonment if all appropriate measures to carry out the return decision have been taken or have failed due to the conduct of the person. The…