Facts
The case concerns an employer, [G.], who employed a Yugoslav national, [O.], as a kitchen helper from February 1, 1989, to November 9, 1990. For the period from November 1, 1989, to January 31, 1990, [G.] had obtained a work permit for his foreign employee, but for the rest of the period, [O.] had neither a residence permit nor a work permit.
On December 12, 1990, the district office of Baden convicted [G.] for violating Article 23, paragraphs 1 and 4, of the Federal Act on the Stay and Establishment of Foreigners (RSFNA) and fined him 600 Swiss francs. On appeal by the prosecution of the canton of Aargau, the district court of Baden acquitted [G.] of the charge of repeatedly facilitating the illegal stay of a foreigner in Switzerland, but found him guilty of intentionally employing a foreigner not authorized to work in Switzerland, in accordance with Article 3, paragraph 3, and Article 23, paragraph 4, RSFNA, and fined him 2,000 Swiss francs.
The prosecution of the canton of Aargau filed a appeal against this judgment, requesting the annulment of the judgment and the remittal of the case to the lower instance for a new decision. [G.] requested the dismissal of the appeal in his observations.
Considerations
The Federal Court examined the question of whether an employer who intentionally employs foreigners staying illegally in Switzerland only fulfills the conditions of Article 23, paragraph 4, RSFNA or also those of Article 23, paragraph 1, RSFNA.
The lower court held that only the repetition of the employment of an illegal worker (see Article 23, paragraph 5, RSFNA) was equivalent to the offense of facilitating illegal stay in Switzerland, in accordance with Article 23, paragraph 1, RSFNA. This means that the employment (for the first time) of a foreigner not authorized to work in Switzerland does not ipso facto constitute a facilitation of illegal stay in Switzerland.
The…