Facts
The Federal Court dealt with an appeal by the Attorney General of the Canton of Zurich against a judgment of the Cantonal Court of Zurich, which discontinued the criminal proceedings against [A.] for disregarding entry and exclusion. [A.] was charged by the Limmat/Albis Public Prosecutor's Office with illegal residence and non-compliance with entry and exclusion and was sentenced to a term of imprisonment. [A.] filed an appeal, whereupon the Cantonal Court discontinued the proceedings, as the administrative repatriation procedure had not yet been completed. The Attorney General requested the annulment of the judgment and the return of the case to the first instance court.
Considerations
The appeal was granted because the Cantonal Court had not correctly established the facts. It should not have referred to an older letter regarding an ongoing identity verification procedure, but rather reassess the facts at the time of the judgment. The repatriation directive does not preclude a criminal sanction for illegal residence if forced repatriation is not possible. The first instance court had to reassess the facts at the time of its judgment and could not rely on outdated information.
The first instance court did not correctly establish the facts and had to reassess the facts at the time of its judgment. The repatriation directive allows for a criminal…