Facts
The case concerns a stateless man of South African origin who used a falsified Uruguayan passport to enter Switzerland. He wanted to marry a Swiss woman, the mother of his child. The man had attempted on several occasions to obtain papers to enter Switzerland legally, but without success. He was convicted for using false papers and for violating the law on foreigners.
The facts unfolded as follows: the man entered Switzerland on 9 February 1989 with a falsified Uruguayan passport. He threw the passport in the train toilet after crossing the border. He then applied for a residence permit for foreigners without papers. The man wanted to marry a Swiss woman, the mother of his child, and had attempted on several occasions to obtain papers to enter Switzerland legally.
Considerations
The Federal Court examined the relationship between articles 252 of the Swiss Criminal Code (SCC) and 23 of the law on foreigners (RSFNA). It decided that using a false passport to enter Switzerland for the purpose of marrying a Swiss citizen does not constitute an offense under article 252 SCC, but rather an offense under the RSFNA.
The Federal Court also examined the issue of extralegal justification for the protection of legitimate interests. It decided that the man had acted in…