Facts
On 31 December 2002, the Russian national X. illegally entered Switzerland with the assistance of smugglers, without a passport or visa. On the same day, she presented herself at the reception centre in Kreuzlingen and applied for asylum. Her application was rejected, and her removal was ordered. X. remained in Switzerland nonetheless. On 8 January 2004, the Migration Office of the Canton of Lucerne filed a criminal complaint for illegal entry and stay. The Cantonal Court of Lucerne found her guilty of illegal entry and stay and sentenced her to a suspended prison sentence of 8 weeks and a fine. X. appealed the judgment for nullity, but her appeal was dismissed.Considerations
The Court first examines whether the appellant's entry was illegal within the meaning of Art. 23 para. 1 4th sentence RSFNA. It concludes that the entry was illegal, as the appellant had neither a passport nor a visa, and did not cross the border at a controlled border crossing either.
The appellant invokes a justifying state of necessity within the meaning of Art. 34 no. 1 para. 1 SCC to justify her illegal entry. However, the special provisions of the Aliens Criminal Law (Art. 23 para. 3 RSFNA and Art. 31 of the Geneva Convention) exhaustively regulate the conditions under which the illegal entry…