Facts
The complainant (A.) was convicted by the District Court of Brig under Article 116(1)(a) in conjunction with paragraph 2 of the Foreign Nationals Act (AuG) to a fine of CHF 800 for facilitating the unlawful entry of a refugee (B.). The Cantonal Court of Valais upheld this judgment. On 24 February 2018, A. assisted the refugee, who had been lawfully transferred to Italy under a Dublin procedure, in illegally entering Switzerland via the Gondo border crossing.
The refugee (born in 1993) is from Afghanistan and had already filed asylum applications in Bulgaria and Italy. The State Secretariat for Migration (SEM) had not entered his asylum application in Switzerland under the Dublin procedure and had ordered his removal to Italy. The refugee had received psychiatric treatment and disappeared after a hospital stay, thereby thwarting the planned transfer to Italy. He was transferred to Italy on 21 February 2018. On 24 February 2018, A. picked him up at Domodossola station (Italy) and attempted to illegally bring him back to Switzerland via Gondo. Upon entry, the refugee was found without valid travel documents.
A. invoked necessity defence (Article 17 SCC) and the overriding justification ground of safeguarding legitimate interests, arguing that the refugee was in a difficult health and psychological situation. The lower courts rejected these objections and convicted A. of facilitating unlawful entry.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal. It found that appeals against decisions of the Federal Administrative Court in asylum matters are inadmissible (Article 83(d)(1) FSCA). The complainant could not demonstrate any violation of fundamental rights such as Articles 3 and 6 ECHR or Article 5(3) Cst.. Furthermore, she lacked a legally protected interest to assert rights violations on behalf of the refugee (Article 81(1)(b) FSCA).
Substantively, the Court assessed whether A.’s actions could be justified by necessity defence (Article 17 SCC) or the overriding justification ground of safeguarding legitimate interests. Both justification grounds require that the danger could not be averted otherwise and that the act was the only means of averting the danger. The Federal Supreme Court held that the refugee was not in a desperate situation in Italy. He had financial means, a mobile phone, could consult with Afghan fellow citizens, and could have sought medical assistance. Moreover, he could have contacted Italian authorities or the Swiss Border Guard Corps. The lower courts found that A. had alternative legal options to help the refugee and that there was no absolute subsidiarity of the danger. Therefore, neither necessity defence nor the overriding…