CELEX: 62013CJ0481
Reference for a preliminary ruling
Geneva Convention of 28 July 1951 relating to the Status of Refugees
Article 31
Third country national who has entered the territory of a Member State after passing through another Member State
Use of the services of people smugglers
Unauthorised entry and stay
Presentation of a forged passport
Criminal penalties
Lack of jurisdiction of the Court

This request for a preliminary ruling concerns the interpretation of Article 31 of the Convention relating to the Status of
Refugees, which was signed in Geneva on 28 July 1951 and entered into force on 22 April 1954 (
United Nations Treaty Series
, Vol. 189, p. 150, No 2545 (1954) (‘the Geneva Convention’)), as supplemented by the Protocol relating to the Status of Refugees
of 31 January 1967, which entered into force on 4 October 1967.
The request has been made in criminal proceedings brought against Mr Qurbani for forgery of documents, illegal entry, unauthorised
stay and unauthorised stay without a passport.

Legal context

International law
The Geneva Convention
According to Article 31 of the Geneva Convention, entitled ‘Refugees unlawfully in the country of refuge’:
‘1.      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.
2.      The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary
and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into
another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to
obtain admission into another country.’

EU law
Directive 2004/83/EC
According to Article 14 of the Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection
and the content of the protection granted (OJ 2004 L 304, p. 12):
‘...
4.      Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial
or quasi-judicial body, when:
(a)      there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is
present;
(b)      he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community
of that Member State.
5.      In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such a decision has
not yet been taken.
6.      Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to those set out in Articles 3, 4, 16,
22, 31 and 32 and 33 of the Geneva Convention in so far as they are present in the Member State.’

German law
Paragraph 267(1) of the Strafgesetzbuch (Criminal Code) provides:
‘A person who for the purpose of deception in legal transactions produces a counterfeit document, forges a genuine document
or uses a counterfeit or a forged document, shall be liable to imprisonment for a term not exceeding five years or a fine.’

The dispute in the main proceedings and the questions referred for a preliminary ruling
Mr Qurbani is an Afghan national who, having used the services of a people smuggler, entered Greece after passing through
Iran and Turkey.
On 17 August 2010, Mr Qurbani left Greece to travel, by plane, to Munich (Germany), under a forged Pakistani passport obtained
from another people smuggler.
Mr Qurbani was arrested at Munich airport, after the authorities responsible for carrying out checks recognised that his passport
was forged.
Mr Qurbani immediately indicated that he wished to apply for refugee status.
On 18 August 2010, Mr Qurbani was brought to the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and
Refugees) where he submitted a formal application to that end.
According to the information provided by the referring court, the proceedings relating to that application for asylum are
still pending.
On 11 April 2011, the Staatsanwaltschaft Würzburg (Public Prosecution Service, Würzburg) applied under a simplified procedure
to the Amtsgericht Würzburg (Local Court, Würzburg) for a penal order against Mr Qurbani in respect of (i) unauthorised entry,
unauthorised stay and unauthorised stay without a passport and (ii) forgery of documents. The order made by the Amtsgericht
was the subject of a challenge by Mr Qurbani before that court itself.
By judgment of 4 February 2013, the Amtsgericht acquitted Mr Qurbani of all those charges.
According to that court, the right of asylum, enshrined in the German Constitution, precludes Mr Qurbani being convicted of
unauthorised stay and unauthorised stay without a passport, while the exemption from penalties provided for in Article 31
of the Geneva Convention applies to the offences of unauthorised entry and forgery of documents.
The Staatsanwaltschaft Würzburg brought an appeal on a point of law (
Revision
) before the Oberlandesgericht Bamberg (Higher Regional Court, Bamberg), pleading, in essence, that Article 31 of the Geneva
Convention does not apply to the present case, since Mr Qurbani did not enter German territory directly from the State of
persecution but passed through a Member State other than the Republic of Germany, in this case, the Hellenic Republic. The
Staatsanwaltschaft also argued that Article 31 concerns only unauthorised entry and cannot deprive the German authorities
of the possibility of punishing offences connected to that entry.
In those circumstances, the Oberlandesgericht Bamberg, which has doubts as to the interpretation of Article 31 of the Geneva
Convention, decided to stay the proceedings and to refer the following questions to the Court of Justice 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 people smugglers 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?’

The jurisdiction of the Court of Justice
By its questions, the referring court asks, in essence, whether Article 31 of the Geneva Convention must be interpreted as
precluding a person, on the one hand, from being punished, under criminal law, in the Member State in which he seeks asylum,
for offences connected with his unauthorised entry into that Member State’s territory, such as, in particular, unauthorised
entry with the assistance of people smugglers 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 has entered that Member State’s territory
after passing through another Member State of the European Union.
It must be observed at the outset that the present request for a preliminary ruling raises the question of the Court’s jurisdiction.
In that regard, the German and Netherlands governments together with the European Commission contend that the Court has no
jurisdiction to reply to the questions referred as such, since they would result in the Court interpreting directly Article 31
of the Geneva Convention.
In those circumstances, it should be noted that, in light of the fact that the Geneva Convention does not contain a clause
conferring jurisdiction on the Court, the Court can interpret the provisions of that convention, in the present case Article 31
thereof, as requested only if the performance by it of such tasks is covered by Article 267 TFEU (
TNT Express Nederland
, C‑533/08, EU:C:2010:243, paragraph 58).
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 (
TNT Express Nederland
, EU:C:2010:243, paragraph 59 and the case-law cited).
In the case of international agreements, it is settled that such agreements concluded by the European Union form an integral
part of its legal order and can therefore be the subject of a request for a preliminary ruling. On the other hand, the Court
does not, in principle, have jurisdiction to interpret, in preliminary ruling proceedings, international agreements concluded
between Member States and non-member countries (
TNT Express Nederland
, EU:C:2010:243, paragraphs 60 and 61 and the case-law cited).
It is only where and in so far as the European Union has assumed the powers previously exercised by the Member States in the
field to which an international convention not concluded by the European Union applies and, therefore, the provisions of the
convention have the effect of binding the European Union that the Court has jurisdiction to interpret such a convention (
TNT Express Nederland
, EU:C:2010:243, paragraph 62 and the case-law cited).
In the present case, although several pieces of EU legislation have been adopted in the field to which the Geneva Convention
applies as part of the implementation of a Common European Asylum System, it is undisputed that the Member States have retained
certain powers falling within that field, in particular relating to the subject-matter covered by Article 31 of that convention.
Therefore, the Court does not have jurisdiction to interpret directly Article 31, or any other article, of that convention.
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 in paragraph 24 above that the Court does not have jurisdiction.
In addition, as previously held at paragraph 71 of the judgment in
B and D
(C‑57/09 and C‑101/09, EU:C:2010:661), 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,
a number of provisions of EU law referring to that article.
In this connection, the Commission points out, in its written observations, that Article 14(6) of Directive 2004/83 refers
to Article 31 of the Geneva Convention.
Although in
Bolbol
(C‑31/09 EU:C:2010:351) and
Abed El Karem El Kott and Others
(C‑364/11, EU:C:2012:826) the Court did indeed accept that it had jurisdiction to interpret the provisions of the Geneva Convention
to which EU law made a
renvoi
, it must be noted that the present 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 and, in particular, no mention of Article 14(6) of Directive 2004/83. The point should
also be made that the present request contains nothing which suggests that the latter provision is relevant in the case in
the main proceedings.
It follows from all the foregoing that it has not been established in the present case that the Court has jurisdiction to
interpret Article 31 of the Geneva Convention.
In those circumstances, it must be held that the Court does not have jurisdiction to reply to the questions referred for a
preliminary ruling by the Oberlandesgericht Bamberg.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
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.
[Signatures]
*
Language of the case: German.