Facts
The appellant [A.] was sentenced by the District Court of Zurich on 11 December 2019 to an unconditional fine of 60 daily rates of CHF 10.-- for unlawful residence within the meaning of Art. 115 para. 1 lit. b AuG. The Higher Court of the Canton of Zurich confirmed the judgment of the first instance in the criminal and guilty points on appeal by [A.] on 13 October 2020. [A.] requests that the judgment of 13 October 2020 be set aside and the criminal proceedings be discontinued.
The court below imposed a fine although the appellant was in unlawful residence and no administrative return procedure had been initiated against him. The appellant complains that the imposition of a fine violates the EU Return Directive, as it allows for conversion into a custodial sentence, which hinders return.
Considerations
The Federal Court ruled that the imposition of a fine is compatible with the EU Return Directive, provided it does not hinder the removal procedure. Such a sanction can be imposed independently of the measures required for the implementation of the expulsion.
The court found that the conversion of the fine into a custodial sentence is not mandatory, as in the event of non-payment, it is also possible to recover the fine through debt collection proceedings. The appellant can, if necessary, defend himself against the…