A serious case of public warning of traffic controls under Art. 98a para. 4 SVG may be present in the opinion of the District Court of Winterthur if the warnings are sent or issued via a sophisticated system, are paid for, are distributed specifically in groups that exist for this purpose, a large number of such warnings are issued and the warnings are sufficiently specific.
Matthias Fricker
Attorney at law and partner at Fricker and Füllemann Attorneys at Law
Studied at the University of St. Gallen, graduating with a Master in Law (M.A. HSG in Law) in 2012, registered in the Bar Register of the Canton of Zurich, member of the Zurich Bar Association.
Severe public warning about traffic controls
Between February and May 2021, a client of Fricker Füllemann Attorneys at Law had published a warning about traffic checks in a total of five posts on his Instagram account and also admitted this to the law enforcement authorities. This means that he has Art. 98a para. 3 lit. a SVG violated.
Instead of issuing a summary penalty order, as is usual in such cases, the public prosecutor’s office brought charges directly before the Winterthur District Court and applied for a conviction for a “serious case” of public warning (i.e. the qualified offense under Art. 98a para. 4 SVG), failing to impose the maximum penalty. In total, the client was faced with an unconditional fine of 180 daily rates of CHF 90.00 each, totaling CHF 16,200.00. Due to this procedure, i.e. the immediate indictment and the high and unconditional fine, the case attracted a great deal of media attention.
No court conviction for a serious case to date
In the oral reasons for the judgment on December 21, 2021, the District Court of Winterthur followed the motions of Fricker Füllemann Rechtsanwälte in its legal assessment of the facts and concluded that there was clearly only a simple case of public warning of traffic controls. The reason given was that since the introduction of the penal provision as part of Via Sicura in 2013, no court convictions had been handed down for a serious case of public warning of traffic controls. The court went on to say that it could not say when exactly a serious case existed, but mentioned the five criteria “sophisticated system”, “remunerative nature”, “specialization”, “high number of warnings” and “degree of concretization of the warnings” as relevant for the assumption of a serious case. No criterion was met in the present case.
Elements of the offense of a serious case of public warning of traffic controls
The court did not deal with the individual criteria in detail and did not take a further position. The following should be noted with regard to the above criteria.
Sophisticated system:
According to the court, a serious case is deemed to exist if warnings are sent or issued using a sophisticated system. This can be accepted in principle. A high level of effort to conceal the public warning is a suitable assessment element in conjunction with other criteria.
Remunerated nature:
The remunerated nature of the information further supports the assumption of a serious case. In particular, the author is of the opinion that commercial activity (i.e. the generation of a regular income) can be used as a criterion. However, the remuneration received must be substantial.
Specialization:
This probably means that a
account or a dedicated group exists specifically and only for traffic control warnings. Such “specialization” would result in particular from the fact that group members or subscribers actually wish to be warned of traffic controls. From this, in turn, qualitative statements can be derived about the “success” or the reach of the warnings.
High number:
The number of warnings is clearly a qualifying element.
Specification:
According to the single judge, the spatial specification of the warning should also constitute a qualifying element. We fully agree with this. A warning that is completely indeterminate in terms of location would lead to the “warned” road user complying with the maximum regulations everywhere and would thus serve to improve road safety in general. This cannot be the purpose of the criminal provision.
The criteria mentioned are basically suitable for assuming a serious case of public warning of traffic controls. In the opinion of Fricker Füllemann Attorneys at Law, however, it is clear that public warnings – issued free of charge – cannot be assumed to be a serious case, regardless of the other criteria. Tightening up the practice of this already socially controversial criminal provision should be rejected.
Cost allocation gives rise to criticism
With regard to the distribution of costs, Fricker Füllemann Rechtsanwälte had requested that the court costs and the costs of the defense of the election be borne by the state, as the proceedings could clearly have been settled with a penalty order. However, the court ordered the defendant to pay the costs of the proceedings on the grounds that a more favorable legal assessment would not lead to a different allocation of costs.
This reasoning is correct insofar as doctrine and case law have so far left open whether a claim to a correct penalty order can be derived from the Code of Criminal Procedure (see judgments of the Federal Supreme Court 6B_523/2014 of December 15, 2014 E. 5.5; 6B_485/2013 of July 22, 2013 E. 2.1; 6B_367/2012 of December 21, 2012 E. 3). If there were a claim to the issue of a correct penalty order (in the present case instead of an indictment), then a different, more favorable legal assessment by the court of first instance compared to the penalty order would partially or completely exempt the convicted person from the obligation to pay costs within the meaning of Art. 426 para. 1 sentence 1 StPO. The prerequisite for a claim to a penalty order would in any case be that the accused person has admitted the facts of the case in the preliminary proceedings or that these have otherwise been sufficiently clarified (cf. Art. 352 para. 1 StPO). This was precisely the case here – the facts of the case were undisputed, clarified and the defendant had admitted to the public warnings.
According to the legal opinion of Fricker Füllemann Attorneys at Law, such a claim for the issuance of a penalty order is to be affirmed. If such a claim is denied, this would open the door to the possibility of official harassment by means of unnecessary charges instead of issuing penalty orders, which in the present case can be seen at least to some extent in the approach of the prosecuting authorities.
Overall, the ruling (GG120089 of December 21, 2021, not yet legally binding) can therefore be followed. With regard to the distribution of costs, however, it would be desirable for case law to recognize claims in favour of the accused in similar cases in the future. As a result, there is still a certain feeling of objectionability regarding the distribution of costs.
