The principle of nullum crimen sine lege under Article 103.2 of the Basic Law covers any application of criminal law including legal reasons for the exemption from punishment, i.e. § 95.5 of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (hereinafter Residence Act).
A person may be qualified as a refugee in the sense of Article 1 letter A of the Convention Relating to the Status of Refugees (Geneva Refugee Convention – hereinafter GRC) if he or she enters Germany with the intention to apply for asylum. This even applies in the case of entry via a safe third country as long as it has to be assumed that the country, due to systemic deficiencies, does not provide for adequate protection in accordance with the standards required by the Geneva Refugee Convention.
A refugee does not lose the protection provided by the Geneva Refugee Convention by entering via a third country if he or she only uses that country as a country of transit. The term “directly” only excludes those who have already resided elsewhere.
The privilege of not being punished for illegal entry or presence accorded to refugees by the Geneva Refugee Convention does not place an obligation upon the contracting states to not punish other criminal offences, even if committed concomitantly. This follows from an interpretation of Article 31.1 GRC in accordance with the international law on treaty interpretation.
Even if there was such an obligation, the exemption from being punished would only come into play if there was a situation tantamount to necessity. Such a situation may arise if entry is impossible without forged documents. In the case of arrival by plane, § 18a Asylum Procedure Act provides for a procedure where an application for asylum is possible without presentation of such documents.
The complainant left Iran in 2009 together with his spouse. They travelled to Turkey by plane and then took a boat to Greece, where they spent forty days, always with the view to leave for Germany in order to apply for asylum. After having procured a false Romanian identity card and a false refugee identity card presumptively issued by Germany, they took a plane to Germany on 27 November 2009. When IDed by the Federal Police, the complainant presented the false identity card and was arrested due to its forgery. During questioning, he applied for asylum for himself and his wife. A detention order for the purpose of transferring him to Greece was rejected by a court order on the grounds that, by applying for asylum, he had obtained a permission to stay (§ 55.1 Asylum Procedure Act). In 2010, criminal proceedings were commenced against him due to the circumstances when entering Germany. In the end, the Local Court Chemnitz convicted him of falsification of documents without discussing the possibility of exemption from punishment due to § 95.5 Residence Act in conjunction with Article 31.1 GRC. The Higher Regional Court Dresden dismissed the appeal on points of law. It held that Article 31.1 GRC was only applicable to illegal entry and presence, not to other criminal offences committed concomitantly, as in the present case. It also doubted the applicability of the Geneva Refugee Convention as such on account of the prior stay in and entry via a safe country. In addition, it excluded the application of the doctrine of necessity to the situation at hand.
The complainant challenged both court decisions. He claimed that the principle of nulla poena sine lege (Article 103.2 of the Basic Law) had been violated because he had been convicted although § 95.5 Residence Act in conjunction with Article 31.1 GRC should have been applied.
The Federal Constitutional Court held that there was no violation of the principle of nulla poena sine lege, as enshrined in Article 103.2 of the Basic Law. The decision is based on the following reasoning:
While the non-application of the provisions of § 95.5 Residence Act in conjunction with Article 31.1 of the GRC by the courts was, in part, wrong, the decisions were not based on this potential violation of Art. 103.2 of the Basic Law.
Seeking asylum the complainant was as a refugee under the Geneva Refugee Convention. Entering Germany via Greece, which is considered a safe country under § 26a.2 Asylum Procedure Act, did not change this. At the time of his entry in November 2009, Greece could not be regarded as a completely safe country due to systemic deficiencies in its asylum proceedings (see ECtHR, M.S.S. v. Belgium and Greece, Judgment of 21 January 2011, no. 30696/09).
In the sense of Article 31.1 GRC, he had come “directly” from a country where his life was threatened, even if he had stayed in Greece for forty days before entering Germany. This is due to the fact that he had always intended to move on to Germany to apply for asylum and had not taken up residence in Greece.
The use of forged identity documents did not fall within the scope of application of § 95.5 Residence Act in conjunction with Article 31.1 GRC in the case at hand. Under an interpretation in accordance with international legal methods of interpretation (here: the rules of customary international law as codified by Articles 31 and 32 of the Vienna Convention on the law of treaties), which is the standard to be applied insofar as it is methodically possible under German law in the context of applicable international law, the provision does not impose a duty on the state to exempt the criminal offences committed upon illegal entry from punishment. The relevant authentic English and French versions of Article 31.1 GRC only cover an exemption from punishment for criminal offences relating to illegal entry or presence. Under a systematic interpretation, the result is inconclusive. While the articles following Article 31.1. GRC suggest the intention of a high level of protection for refugees and therefore a broad interpretation of the provision, both the Preamble of the Geneva Refugee Convention and Article 31.1 GRC itself rather suggest a strict reading: The protection afforded can be restricted for state reasons and the refugee should only mention justifying circumstances with regard to the above-mentioned criminal offences vis-à-vis the authorities. The statements of the UN High Commissioner for Refugees and the decisions of the Executive Committee recommending a broad interpretation do not constitute a subsequent agreement of the parties to the Convention. Neither is there relevant subsequent practice, as a study of Goodwin-Gill of 2003 has shown: Only some of the contracting parties include entry via forged documents into the scope of application of Art. 31.1 GRC. In the light of the provision’s object and purpose that has to be construed as balancing the interests of the refugee and of the state, also according to the travaux préparatoires, only criminal offences relating to entry which are necessary to reach protection are covered. This was not the case for the complainant.
There were no exceptional circumstances justifying the complainant’s criminal offence. He could have applied for asylum without presenting the forged identity card using the procedure pursuant to § 18a Asylum Procedure Act (entry by air) when he was questioned by the Federal Police at the airport.