Federal Prosecutor v Kruszyk

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal.
Swiss Federal Prosecutor
Kruszyk and Others

Diplomatic relations Inviolability of diplomatic mission Duty of receiving State to protect embassy premises Vienna Convention on Diplomatic Relations 1961, Article 22(2) Occupation of embassy and taking of hostages by foreign dissidents Whether authorities in receiving State entitled to institute criminal proceedings for offences committed on embassy premises Whether embassy premises forming part of territory of receiving State

Relationship of international law and municipal law Crimes against international law Seizure of embassy and taking of hostages Whether perpetrators subject to criminal prosecution in receiving State Whether defence of necessity available to perpetrators seeking to draw attention to unlawful acts of communist government Principle of proportionality The law of Switzerland

Summary: The facts:In 1982 the accused, a Polish national and three compatriots occupied the Polish Embassy in Berne, taking hostage the embassy staff and a visitor. They demanded the release of political prisoners and an end to repression in Poland. The Swiss police eventually stormed the building and ended the siege without bloodshed. The accused were prosecuted and convicted for various crimes committed within the embassy compound. On appeal to the Federal Tribunal they challenged the jurisdiction of the Swiss courts, arguing that the Polish Embassy enjoyed extraterritoriality so that the affair was an internal Polish matter.

Held:The Swiss courts were competent to exercise jurisdiction over the offences.

(In the judgment of 10 October 1983)

(1) Although diplomatic missions enjoyed immunity with respect to their staff and premises, those premises still formed part of the receiving State and were in no way extraterritorial. This view was confirmed by Article 22(2) of the Vienna Convention on Diplomatic Relations, 1961, which imposed a special duty upon the receiving State to protect the premises of the mission against any intrusion and to prevent any disturbance of the peace of the mission.

(2) Necessity could not provide a legal justification in the case at issue. The occupation of the embassy had not been undertaken in order to rescue specific persons but rather to draw attention to the general situation in Poland. As such it was hardly likely to influence that situation and indeed its likely consequences were out of all proportion to its aim. Ultimately such action was...

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