Facts
On March 7, 1985, officers of the St. Gallen Cantonal Police in Murg controlled a passenger car with Milan license plates. The vehicle contained two Italian and five Turkish nationals. The Turkish nationals, who had secretly entered Switzerland a few hours earlier and could not produce visas, were taken into investigative custody on suspicion of unlawful entry into the country and later, with the exception of [F.] and [C.], who filed an asylum application on March 13, 1985, were deported to Istanbul.
On July 2, 1985, the Sargans Judicial Commission convicted [F.] and [C.] of unlawful entry into the country under Art. 23 para. 1 ANAG to conditionally executable prison sentences of eight days, taking into account the eight days of investigative custody. The St. Gallen Cantonal Court dismissed the appeal filed by the two convicts on February 3, 1986.
The convicted individuals do not challenge the decision of the St. Gallen Cantonal Court by means of a federal nullity appeal, but rather by filing a complaint with the Federal Council. They argue that their conviction under Art. 23 para. 1 ANAG violates Art. 31 para. 1 of the Convention Relating to the Status of Refugees of July 28, 1951.
Considerations
The Cassation Court of the Federal Supreme Court decided that the question of the applicability of Art. 31 para. 1 of the Refugee Convention is a genuine preliminary issue and therefore to be decided by the Cassation Court, which is competent in the main proceedings (conviction under Art. 23 para. 1 ANAG) of the federal nullity appeal.
The Cantonal Court had stated that the complainants cannot be considered refugees within the meaning of the Refugee Convention, as they did not provide valid reasons for the illegal entry and did not immediately present themselves to the authorities. The complainants claim that the Cantonal Court wrongly denied their refugee status, but do not explain in what…