Article 31(1) of the Geneva Convention provides:-
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
The applicant was arrested in Germany when he was discovered to be travelling on a false passport. He was charged with:
- unauthorised entry, unauthorised stay and unauthorised stay without a passport and
- forgery of documents.
The court acquitted him, on the basis that the right of asylum, enshrined in the German Constitution, precluded him from being convicted of unauthorised stay and unauthorised stay without a passport, whilst the exemption from penalties provided for in Article 31 of the Geneva Convention applied to the offences of unauthorised entry and forgery of documents. Its decision was appealed by the prosecutor and a reference was made to the Court of Justice of the European Union (CJEU) seeking a ruling on the interpretation of Article 31 of the Geneva Convention in the context of the case.
The CJEU noted that the referring court asked, in essence, whether Article 31 of the Geneva Convention was to be interpreted as precluding a person, on the one hand, from being punished, under criminal law, in the Member State in which he sought asylum, for offences connected with his unauthorised entry into that Member State’s territory, such as, in particular, unauthorised entry with the assistance of human traffickers and use of a forged identity document, and, on the other, from relying on the exemption from penalties provided for in that Article, where the person concerned had entered that Member State’s territory after passing through another Member State of the European Union.
The CJEU held, however, that it lacked jurisdiction to interpret, in preliminary ruling proceedings, international agreements concluded between Member States and non-member countries, and it was accordingly unable to provide a ruling on the questions which had been referred to it.
The CJEU said that it only had such jurisdiction where the European Union had assumed powers previously exercised by the Member States in the field to which an international convention not concluded by the European Union applied and the provisions of which had the effect of binding the European Union.
It held that, in the instant case, although several pieces of EU legislation had been adopted in the field to which the Geneva Convention applied as part of the implementation of a Common European Asylum System, it was undisputed that the Member States had retained certain powers falling within that field, in particular relating to the subject-matter covered by Article 31 of that convention. Therefore, it did not have jurisdiction to interpret directly Article 31, or any other article, of that convention.
The CJEU therefore declined to answer the questions referred to it as it did not have jurisdiction to do so.