CJEU - C‑481/13, Mohammad Ferooz Qurbani

Facts:

Mr Qurbani fled his native Afghanistan using the services of a human trafficker, eventually reaching Germany by plane from Greece, having passed through Iran and Turkey. When he was arrested on arrival for unauthorised entry and use of a forged Pakistani passport, he immediately claimed asylum. Pending the asylum procedure, which is ongoing, he was prosecuted for unauthorised entry and forgery of documents, but subsequently acquitted by the Local Court in Würzburg on the basis of Article 31 of the 1951 Geneva Convention.

The prosecuting authorities appealed to the Higher Regional Court in Bamberg on the ground that Article 31 does not apply to Mr Qurbani, for two reasons: first, having transited via Greece, he did not ‘come directly’ to Germany from Afghanistan; second, Mr Qurbani was being prosecuted for offences ‘connected with’ unauthorised entry – trafficking and forgery – as opposed to the unauthorised entry itself. The Bamberg Court referred questions to the CJEU concerning the correct interpretation of Article 31.

Questions referred for a preliminary ruling

1. Does the personal ground for exemption from penalties in Article 31 of the [Geneva Convention] also include, beyond its wording, forgery of documents, which took place on presentation of a forged passport to a police officer on the occasion of entry by air into [Germany], when the forged passport is not in fact necessary to apply for asylum in that State?

2. Does the use of human traffickers preclude reliance on Article 31 of the [Geneva Convention]?

3. Is the factual requirement in Article 31 of the [Geneva Convention], of coming “directly” from a territory where the life or freedom of the person concerned was threatened, to be interpreted as meaning that that condition is also satisfied if the person concerned first entered another Member State (here: [the Hellenic Republic]) from where he continued to another Member State (here: the Federal Republic of Germany) in which he seeks asylum?

Decision & reasoning:

‘It is settled case-law that the power, resulting from Article 267 TFEU, to provide interpretations by way of preliminary rulings extends only to rules which are part of EU law’ [21].

 The fact that Article 78 TFEU provides that the common policy on asylum must be in accordance with the Geneva Convention and that Article 18 of the Charter of Fundamental Rights of the European Union makes clear that the right to asylum is to be guaranteed with due respect for that Convention and the Protocol relating to the status of refugees of 31 January 1967 is not such as to call into question the finding that the Court does not have jurisdiction [25].

In addition, although it is true that it is clearly in the interests of the European Union that, in order to forestall future differences of interpretation, the provisions of international agreements which have been taken over by national law and by EU law should be given a uniform interpretation, irrespective of the circumstances in which they are to apply, it must be noted that Article 31 of the Geneva Convention has not been taken over in a piece of EU legislation [26].

Although the Court did indeed already accept that it had jurisdiction to interpret the provisions of the Geneva Convention to which EU law made a renvoi, such cannot be the case where the request for a preliminary ruling contains no mention of any rule of EU law which makes a renvoi to Article 31 of the Geneva Convention [28].

Outcome:

The Court of Justice of the European Union does not have jurisdiction to reply to the questions referred for a preliminary ruling by the Oberlandesgericht Bamberg (Germany), by decision of 29 August 2013 in Case C‑481/13.

Observations/comments:

Yewa Holiday of the EU Law Analysis blog provides a case comment: “Penalising Refugees: when should the CJEU have jurisdiction to interpret Article 31 of the Refugee Convention?”, 19 July 2014

Other sources: