Disregard of an exclusion order - Precedence of deportation over punishment

Facts

X. was prohibited from entering the canton of Zurich by an order dated April 23, 1996. Nevertheless, he was present in Zurich on June 18, 1996 and March 14, 1997. He was subsequently deported from Switzerland on July 29, 1997.

The High Court of the Canton of Zurich convicted X. of violating the exclusion order pursuant to Art. 23a in conjunction with Art. 13e of the Federal Act on Foreign Nationals (ANAG). X. appealed against this judgment.

Considerations

The Federal Supreme Court upheld the appeal. It decided that for the criminality of disregarding an exclusion order, the circumstances at the time of the judgment, and not those at the time of the offense, are decisive.

If the foreign national can be deported at the time of the judgment, a punishment…