Dismissal of the appeal against expulsion

Facts

X. was convicted by the High Court of the Canton of Zurich on 1 October 1984 to five years' imprisonment for attempted murder, provocation to a duel, and simple bodily harm. The court also ordered his expulsion from Swiss territory for a period of eight years. X. filed a nullity appeal against this decision, requesting the removal of the ancillary penalty of expulsion or, subsidiarily, that the execution of the expulsion to Libya be prohibited.

Considerations

The Federal Tribunal considers that the criminal judge does not have to examine in advance whether the penalty of expulsion is compatible with the provisions of asylum law or whether the convicted person can claim a longer stay in Switzerland on the basis of this law. These questions of asylum law must only be examined when it appears that the measure of expulsion must be executed, after the convicted person has served his or her custodial sentence.

The Federal Tribunal notes that the grievances derived from asylum law do not constitute genuine preliminary questions whose decision would be necessary for the application of Art. 55 SCC, but rather obstacles which, for humanitarian reasons, may prevent the execution of the expulsion in a specific case.

Thus, the criminal judge does not have to rule on these questions of asylum and refugee law, which fall within the competence of…