Facts
On January 18, 2011, X., a Swiss national, and Y., an Iraqi citizen, filed an application to open a marriage file with the Civil Registry Office of North Vaud. On January 21, 2011, the Office determined that Y. did not have legal residence in Switzerland and set a deadline until March 24, 2011 for him to provide proof thereof, in accordance with Art. 98 para. 4 CC. Having not received this proof, the Office declared the application inadmissible on April 8, 2011.
X. and Y. appealed this decision to the Administrative and Public Law Court of the Cantonal Tribunal of the Canton of Vaud, which upheld the appeal and annulled the Office's decision. The Federal Department of Justice and Police then appealed this cantonal decision to the Federal Tribunal.
Considerations
The Federal Tribunal upheld the Department's appeal and overturned the cantonal judgment, thus rejecting the request for celebration of the marriage of X. and Y.
The Cantonal Court had based its decision on the case law of the European Court of Human Rights (ECtHR) in the case of O'Donoghue and Others v. the United Kingdom, considering that Art. 98 para. 4 CC was incompatible with the right to marriage guaranteed by Art. 12 ECHR. However, the Federal Tribunal considered that this provision could be applied in a manner consistent with the Constitution and the ECHR, provided that the foreign police authority takes into account the requirements related to respect for the right to marriage and the principle of proportionality.
Thus, the foreign police authority must issue a residence…