CASE OF OLIVEIRA v. SWITZERLAND
No violation of P7-4
6. Mrs Oliveira, a Portuguese citizen, was born in 1967 and currently lives in Zürich (Switzerland). 7. On 15 December 1990, while she was driving on a road covered with ice and snow in Zürich, her car veered onto the other side of the road hitting one car and then colliding with a second driven by M., who sustained serious injuries. 8. On 19 March 1991 the Zürich police magistrate’s office (Polizeirichteramt) sent the file to the district attorney’s office (Bezirksanwaltschaft) for further investigation as to whether the applicant had negligently inflicted serious physical injury contrary to Article 125 § 2 of the Swiss Criminal Code (see paragraph 16 below). 9. On 5 April 1991 the Zürich District Office (Statthalteramt) sent the file to the district attorney’s office for further investigations as to whether any offences had been committed under the Federal Road Traffic Act (see paragraph 17 below). 10. On 3 June 1991 the district attorney’s office returned the case file concerning the party injured in the accident to the police magistrate’s office. It contained a medical certificate stating that the injuries were serious. On 12 August 1991 the police magistrate found that there was no case for the injured party to answer (Einstellungs-Verfügung). On 13 August 1991 he convicted the applicant of an offence under sections 31 and 32 of the Federal Road Traffic Act of failing to control her vehicle, as she had not adapted her speed to the road conditions (Nichtbeherrschen des Fahrzeuges infolge Nichtanpassens der Geschwindigkeit an die Strassenverhältnisse) and sentenced her to a fine of 200 Swiss francs (CHF). He found in particular that on 15 December 1990 the road had been covered with ice and snow and that the applicant's car had veered onto the other side of the road hitting one car before colliding with a second. 11. On 25 January 1993 the district attorney’s office issued a penal order (Strafbefehl) fining Mrs Oliveira CHF 2,000 for negligently causing physical injury contrary to Article 125 of the Swiss Criminal Code in respect of the injuries sustained by M. as a result of the collision between his vehicle and the applicant’s. 12. The applicant challenged that order in the Zürich District Court (Bezirksgericht), which on 11 March 1993 reduced the fine to CHF 1,500. It held in particular: “The police magistrate who imposed the fine (Bussenverfügung) referred to by the applicant had to examine the situation within the context of proceedings concerning a minor criminal offence (Übertretungsstrafverfahren), so that by virtue of the non bis in idem principle there is no doubt that no further prosecution for a minor criminal offence can be brought on the basis of the same incident. However, the fact that investigations in this type of proceedings are summary and limited in scope means that offenders on whom only a fine has been imposed may, if a more thorough investigation is needed in view of legal or factual considerations, also be prosecuted on the same facts for a serious crime or other major offence. In such cases, the original decision and sentence are quashed.” The court went on to quash the CHF 200 fine imposed on 13 August 1991 and said that any part of that fine that had already been paid was to be deducted from the fine it was imposing, the latter fine thus being reduced to CHF 1,300. 13. The applicant appealed to the Zürich Court of Appeal (Obergericht), which on 7 October 1993 dismissed the appeal holding, inter alia: “It is necessary to consider what conclusions are to be drawn from the police magistrate’s error regarding the question in issue. It is clear that in his decision of 13 August 1991 he made a finding only in respect of the applicant’s failure to control the vehicle, but not in respect of the resulting physical injuries suffered by the victim… However, in determining whether the Highway Code had been followed, the police magistrate had the power and duty to consider all the facts before him and to rule on them exhaustively under the criminal law; his failure to remit the case file, even though possibly serious physical injuries had been caused by negligence, does not necessarily mean that the decision of the police magistrate is invalid – that decision stands. It has not been submitted, and does not appear from the file, that the decision in issue contains serious defects requiring that it be quashed in its entirety in any event.” The Court of Appeal subsequently upheld the decision to deduct CHF 200 from the CHF 1,500 fine, considering that the applicant ought not to be punished more severely than she would have been if both offences had been dealt with together in a single set of proceedings. 14. Mrs Oliveira appealed against that decision on grounds of nullity (Nichtigkeitsbeschwerden) to the Court of Cassation (Kassationsgericht) of the Canton of Zürich and to the Federal Court. On 27 April 1994 the Court of Cassation declined to consider her appeal. 15. The applicant then filed a public-law appeal with the Federal Court against that decision. On 17 August 1994, the Federal Court dismissed both the applicant's public-law appeal and her appeal on grounds of nullity. In its latter decision the Federal Court held that it had to be assumed that when on 13 August 1991 the police magistrate had imposed a fine on Mrs Oliveira, he had been unaware that M. had sustained serious injuries, as otherwise he would have had no jurisdiction to impose a fine and would have had to return the file to the district attorney’s office. The Federal Court concluded that the District Court had nevertheless avoided the effects of punishing an offender twice for the same offence by taking into account the CHF 200 fine imposed by the police magistrate when “determining the amount of the new fine” (bei der Bemessung der neuen Busse). 16. Article 125 of the Swiss Criminal Code provides: “1. Anyone who negligently causes damage to the physical integrity or health of another shall, on a complaint, be liable to imprisonment or a fine. 2. If the injury is serious, the offender shall be prosecuted even in the absence of a complaint.” 17. Subsection 31(1) of the Federal Road Traffic Act provides, inter alia, that drivers shall remain in control of their vehicles at all times so as to fulfil their obligations to drive carefully. Under section 32, drivers must adapt the vehicle's speed to conditions.