Facts
The case concerns Hans-Günther Gerigk, an East German national, who was expelled from Switzerland in 1970 under Article 10 paragraph 1 letter b and d of the Federal Act on Foreigners (RSFNA). The expulsion was confirmed by the Council of State of the canton of Aargau in 1971, but with a two-year probationary period. In 1972, the expulsion was enforced and Gerigk was ordered to leave the country. However, he returned to Switzerland several times to visit his wife and was arrested in January 1973.
Gerigk was convicted of violating the expulsion order (Article 291 of the Swiss Criminal Code) and obstructing an official act (Article 286 of the Swiss Criminal Code). He filed a motion to quash, arguing that the expulsion was contrary to Article 54 of the Federal Constitution, which guarantees the right to marriage.
Considerations
The Federal Court examined whether Article 23 of the RSFNA was applicable in this case, but concluded that this provision is subsidiary to Article 291 of the Swiss Criminal Code. The Court also examined whether Gerigk's expulsion was contrary to Article 54 of the Federal Constitution, but concluded that it could not examine this issue under Article 113 paragraph 3 of the Federal Constitution.
The Court also examined whether…