Introduction
Facts

Decision
Comment


Introduction

'Inadmissible persons' ('INADs') is a term used for passengers who are or will be refused admission to a state by its authorities.

Pursuant to Article 92 of the Foreign and Integration Act, airlines must take all reasonable measures to ensure that they transport only passengers who possess the required travel documents, visas or residence permits to enter the Schengen area or travel through the international transit zones of airports.

Pursuant to Article 122a of the act, a violation of the duty of care is presumed if the airline carries INADs.

Airlines that violate their duty of care must pay Sfr4,000 for each INAD. The penalty is Sfr16,000 per INAD in serious cases. In minor cases, proceedings may be waived.

Facts

From 7 July 2017 to 30 December 2017, Swiss International Airlines AG carried 52 INADs on the routes from Boston to Zurich, Sao Paulo to Zurich, Los Angeles to Zurich, Miami to Zurich and San Francisco to Zurich.

On that basis, the State Secretariat for Migration initiated proceedings against Swiss International Airlines.

On 21 December 2018 the secretariat found that in the case of 49 of the 52 INADs, Swiss International Airlines had violated its duty of care under Article 92 of the act. The secretariat ordered the airline to pay Sfr196,000.

Swiss International Airlines appealed the order. It argued that Article 122a of the act places the burden on airlines to prove their innocence. That is incompatible with the fundamental principle that a person may not be convicted of a crime unless the government proves guilt beyond a reasonable doubt, without any burden placed on the accused to prove their innocence.

Swiss International Airlines also contended that the secretariat has a duty to investigate ex officio all of the circumstances relevant to the assessment of alleged criminal acts. The secretariat must investigate incriminating and exculpating circumstances with equal care, but failed to sufficiently investigate the 49 INADs.

Decision

On 27 January 2020 the Federal Administrative Court upheld the appeal and remanded the case to the secretariat for further investigation into the matter.

In its reasoning, the court first referred to Article 6(2) of the European Convention on Human Rights (ECHR), which provides that everyone charged with a criminal offence will be presumed innocent until proved guilty according to law. While Article 122a of the Foreign and Integration Act penalises an administrative offence, the court had no doubt that the secretariat had charged Swiss International Airlines with a criminal offence given the punitive and deterrent character, as well as the high potential penalty pursuant to Article 122 of the act.

The court then turned to the question of whether Article 122a of the act is compatible with the presumption of innocence as embodied in Article 6(2) of the ECHR. The court stated that a person's right in a criminal case to be presumed innocent and require the government to bear the onus of proving the allegations against them is not absolute. Presumptions of fact or law operate in every criminal law system and are not prohibited in principle by the convention.

Article 6(2) of the convention only requires states to confine these presumptions within reasonable limits which consider what is at stake and maintain the rights of the defence.

The court found that Article 122a of the act aligns with these requirements. The presumption is that an airline carrying INADs is in breach of its duty of care but free to rebut the presumption by furnishing contrary evidence. Airlines may do so by proving that:

  • a forgery or falsification of a travel document, visa or residence permit was not clearly recognisable;
  • it was not clearly recognisable that a travel document, visa or residence permit did not pertain to the person carried;
  • it was not immediately possible to ascertain the authorised term of stay or points of entry on the basis of the stamps on the travel document; or
  • all organisational measures that could be reasonably required to prevent them from carrying INADs were taken.

According to the court, it would be too cumbersome for the State Secretariat for Migration to prove such facts that happen abroad. It is more appropriate to shift the burden of proof for the above circumstances to the airline.

The court found that the presumption under Article 122a of the act remained within reasonable limits and the rights of the defence were not unduly interfered with. It concluded that Article 122a of the act is compatible with the presumption of innocence.

The court then turned to the question of whether the secretariat's investigation fell short of the duty to investigate ex officio all of the circumstances. The court agreed with Swiss International Airlines that the secretariat must investigate both incriminating and exculpating circumstances with equal care.

On that basis, and in view of competition law jurisprudence to similar effect, the court stated that the secretariat should have requested the production of documents and solicited comments on the proper selection, instruction and supervision of the ground handlers, as well as on the organisation of the check-in and boarding procedures. However, the secretariat had failed to complete these steps.

The court concluded that the investigation was insufficient. For that reason, the court upheld the appeal and requested the secretariat to complete its investigation.

Comment

While the criticism of the shortcomings of the investigation is plausible, the judgment is less persuasive on its first point.

Article 122a of the Foreign and Integration Act departs from the presumption of innocence by requiring airlines to prove specific matters in order to avoid conviction. This is likely at odds with Article 6(2) of the ECHR and contrary to the judgment of the Federal Administrative Court. It is difficult to see why the defendant airline must prove its innocence simply because most of the facts of the case happened abroad.

For further information on this topic please contact Andreas Fankhauser at Proton Legal LLC by telephone (+41 44 214 69 97) or email ([email protected]). The Proton Legal LLC website can be accessed at www.proton-legal.com.