Questão jurídica principal
Whether the accused's stay in Switzerland from 7 January 2004 to 30 September 2005 was unlawful under Art. 23(1) ANAG despite later refugee recognition on subjective post-flight grounds.
Decisão extraída
The stay was justified from the point at which the refugee-related grounds existed, and the appeal court could not be shown to have acted arbitrarily in finding that this could already have been the case at the start of the charged period.
Fundamentação extraída
A second asylum procedure gives lawful stay during the proceedings; where refugee status is later granted because of subjective post-flight grounds, the prior irregular stay is justified analogously to Art. 31(1) Refugee Convention from the time the relevant grounds arose. The prosecution failed to show a clearly arbitrary factual finding or a violation of in dubio pro reo.