Criminal procedure law: Risks of appealing against a summary penalty order

Judgement 6B_222/2022 of January 18, 2023, dealt with an SVG case from the canton of Nidwalden (for official publication). At the heart of this leading judgement are the consequences and continuation of proceedings following an objection to a summary penalty order. The Federal Supreme Court dealt in detail with the summary penalty order (E. 1.1.1), the continuation of the proceedings following an objection to the summary penalty order (E. 1.1.2) and the scope of the principle of "ne bis in idem" and the prohibition of double jeopardy (E. 1.1.3). Above all, the judgement also shows that appealing against a summary penalty order is not without risk, which many people are not aware of.

1. Facts of the case

On May 25, 2019, A. was caught by a speed camera in his car on U.strasse in V. in the area of a construction site. The measured speed after deduction of the tolerance was 89 km/h, the maximum permitted speed was 40 km/h and the speeding offence was therefore 49 km/h.

In a penalty order dated June 12, 2019, the public prosecutor's office in Nidwalden sentenced A. to 180 daily fines of CHF 70 each and a fine of CHF 1'000 for intentional gross violation of traffic regulations in accordance with Art. 90 para. 2 SVG. A. lodged an objection to this on June 19, 2019, in the course of which he questioned the accuracy of the radar device, so that the public prosecutor's office ordered an expert opinion on the matter. After this had shown that the measurement was valid and that the speeding was at least 50 km/h, the public prosecutor's office informed A. on December 18, 2019, that it was continuing the proceedings for wilful and particularly flagrant disregard of the speed limit signalled in accordance with Art. 90 para. 3 and 4 SVG. On July 9, 2020, despite the withdrawal of the objection by the defendant on 10 January 2020, it brought charges accordingly.

2. Lower court

In its judgement of February 23, 2021, the Cantonal Court of Nidwalden found A. guilty of intentional and gross violation of traffic regulations by particularly flagrant disregard of the speed limit in accordance with Art. 90 para. 3 and 4 lit. b SVG and sanctioned him with a conditional custodial sentence of 12 months. The appeal against this was dismissed by the High Court of the Canton of Nidwalden on September 16, 2021 in written proceedings.

3. Appeal to the Federal Supreme Court

A. lodges an appeal in criminal matters and requests that the contested judgement be set aside, the charges be dropped and the proceedings be dismissed. In the alternative, he should be acquitted. In the alternative, the case should be referred back to the High Court for a new judgement. The application for suspensive effect was rejected by the President of the Criminal Division of the Federal Supreme Court in an order dated February 17, 2022.

The High Court of the Canton of Nidwalden waived its right to a hearing. The Nidwalden public prosecutor's office requests that the appeal be dismissed insofar as it should be upheld.

4. Statements of the Federal Supreme Court

The appellant complains to the Federal Supreme Court that the charges should not have been upheld because he had withdrawn his objection and the summary penalty order had therefore become legally binding. (E. 1)

Comments on the summary penalty order

The Federal Supreme Court first makes a general - and unsurprising - statement on the summary penalty order:

"If the accused person has admitted the facts of the case in the preliminary proceedings or if these have otherwise been sufficiently clarified, the public prosecutor's office shall issue a summary penalty order if it considers a fine or a monetary penalty of no more than 180 daily rates to be sufficient, taking into account any conditional sentence or conditional release that may be revoked (Art. 352 para. 1 lit. a and b StPO). According to Art. 353 para. 1 of the Code of Criminal Procedure, the penalty order contains, among other things, the facts of the case with which the accused person is charged (lit. c), the offences thereby committed (lit. d) and the sanction (lit. e). The accused person may lodge a written objection to the summary penalty order within 10 days (Art. 354 para. 1 lit. a CPC). They do not have to give reasons for their objection (Art. 354 para. 2 CPC). Without a valid objection, the summary penalty order becomes a final judgement (Art. 354 para. 3 CPC)." (E.1.1.1).

Comments on the objection and the continuation of the proceedings

The Federal Supreme Court continues with the following comments on the objection:

"If an objection is lodged, the public prosecutor's office shall take the further evidence required to assess the objection (Art. 355 para. 1 CPC). After taking the evidence, the public prosecutor's office decides whether to: uphold the summary penalty order; discontinue the proceedings; issue a new summary penalty order; or bring charges before the court of first instance (Art. 355 para. 1 lit. a-d CPC). If the public prosecutor decides to uphold the summary penalty order, the court of first instance must hold a main hearing (Art. 356 para. 1 and 2 CPC). The objection may be withdrawn until the parties' submissions have been concluded (Art. 356 para. 3 CPC). 

After taking evidence, the public prosecutor's office proceeds in accordance with Art. 355 para. 1 lit. c or d of the Code of Criminal Procedure (issuing a new summary penalty order or bringing charges before the court of first instance) if a different penalty or other sanctions are imposed for the offences covered by the contested summary penalty order due to a change in the factual and/or legal situation; if it subsequently qualifies the facts covered by the contested summary penalty order differently in legal terms, or if new offences become known. In all these cases, the public prosecutor's office is not bound by its original penalty order and the prohibition of reformatio in peius does not apply (BGE 145 IV 438 E. 1.3.2; judgement 6B_703/2021 of 22 June 2022 E. 4.3.2). Depending on whether or not the new circumstances are still suitable for prosecution, the public prosecutor's office must issue a new summary penalty order or otherwise file an independent indictment with the court of first instance in accordance with Art. 324 et seq. of the Code of Criminal Procedure. For new offences, an investigation must be opened in accordance with Art. 309 of the Code of Criminal Procedure. With regard to these new offences, various special features of Art. 355 para. 2 and Art. 356 of the Code of Criminal Procedure can no longer be applied. In particular, the summary penalty order for the new offences does not become an indictment and the proceedings remain unaffected by a withdrawal of the objection (Franz Riklin, in: Basler Kommentar, Schweizerische Strafprozessordnung, 2nd ed. 2014, N. 4 f. on Art. 355 and N. 4 on Art. 356 ZPO)." (E.1.1.2)

On the principle of "ne bis in idem"

Next, the Federal Supreme Court describes the principle of "ne bis in idem" and its scope:

"The principle of "ne bis in idem" is regulated in Art. 11 para. 1 of the Code of Criminal Procedure. It is also enshrined in Art. 4 of Protocol No. 7 to the ECHR (SR 0.101.07) and in Art. 14 para. 7 of UN Covenant II (SR 0.103.2) and can be derived directly from the Federal Constitution according to the case law of the Federal Supreme Court (BGE 137 I 363 E. 2.1 with references). Accordingly, anyone who has been finally convicted or acquitted in Switzerland may not be prosecuted again for the same offence. Identity of offence exists if the first and second criminal proceedings are based on identical or essentially identical facts. The legal qualification of these facts is irrelevant (see BGE 137 I 363 E. 2.2; judgments 6B_1053/2017 of 17 May 2018 E. 4; 6B_453/2017 of 16 March 2018 E. 1.2, not published in: BGE 144 IV 172; 6B_503/2015 of 24 May 2016 E. 1.1, not published in: BGE 142 IV 276; each with references; on the interpretation of the term "same act" by the ECJ and the ECHR: judgement 6B_482/2017 of 17 May 2017 E. 4.2 with references). The prohibition of double jeopardy constitutes a procedural obstacle that must be taken into account ex officio at every stage of the proceedings (BGE 143 IV 104 E. 4.2; in detail on the principle of "ne bis in idem": judgement 6B_1053/2017 of 17 May 2018 E. 4; on the whole: BGE 144 IV 362 E. 1.3.2)." (E.1.1.3)

Decision in the present case

The Federal Supreme Court comes to the following conclusion in this individual case:

"As can be seen from what has been said in recital 1.1.2 above, the effect of the objection is that the proceedings revert to the jurisdiction of the public prosecutor's office and that the latter must proceed in accordance with Art. 355 para. 3 lit. a-d after taking the evidence. However, according to prevailing doctrine, the accused person can only withdraw the objection if the public prosecutor's office adheres to the original summary penalty order after the evidence has been taken (Art. 355 para. 3 lit. a in conjunction with Art. 356 para. 1 and 3 of the Code of Criminal Procedure), but not if it issues a new summary penalty order or brings charges before the competent court (Art. 355 para. 3 lit. c and d CPC; CHRISTIAN SCHWARZENEGGER, in: Kommentar zur Schweizerischen Strafprozessordnung, StPO, Donatsch/Hansjakob/Lieber [eds.], 2nd ed. 2014, n. 5 ff. esp. n. 6a to Art. 355 CPC; GILLIÉRON/KILLIAS, in: Commentaire Romand, Code de procédure pénale, 2nd ed. 2019, n. 11. 2019, n. 11 to Art. 356 CCP; JO PITTELOUD, Code de procédure pénale, Praxiskommentar, 2012 N. 993 p. 678; see also FRANZ RIKLIN, in: Basler Kommentar, Schweizerische Strafprozessordnung, 2nd ed, N. 5 to Art. 355 StPO). In these cases, the public prosecutor's office is not bound by its original penalty order and the prohibition of reformatio in peius does not apply (judgement 6B_703/2021 of 22 June 2021 E. 4.3.3). The lower court also correctly points out that the public prosecutor's office is not free in its approach. In particular, it is obliged to bring charges if it comes to the conclusion on the basis of the evidence taken that the matter can no longer be settled in summary penalty order proceedings. This is the case here, as the public prosecutor's office considered a speeding violation of at least 50 km/h to be proven and therefore continued the proceedings for intentional, particularly flagrant disregard of the speed limit signalled in accordance with Art. 90 para. 3 and 4 SVG or brought charges accordingly on 9 July 2020. Nor can the complainant be accepted when he argues that the possibility of withdrawing the objection only ceases to apply once the public prosecutor's office has actually brought charges. Rather, once an objection has been lodged, the accused person's power of disposal is withdrawn until the public prosecutor's office decides on the new outcome of the proceedings in accordance with Art. 355 para. 3 lit. a-d of the Code of Criminal Procedure. In this respect, it should be noted that the objection is not a formal legal remedy, but merely an appeal.

Contrary to the opinion of the complainant, the principle of "ne bis in idem" is also not affected and does not prevent a new assessment of the disputed allegations. Rather, as the lower court rightly considers, the factual and legal situation is different from that on which the original penalty order was based. Firstly, the speeding offence established is no longer 49 km/h, but at least 50 km/h. Secondly, in the opinion of the public prosecutor's office, criminal liability is now based on paragraphs 3 and 4 of Art. 90 SVG instead of paragraph 2 of the aforementioned provision. This is not affected by the fact that the same facts of life are involved and no new measurement was taken.

In view of the above, the lower court was right to uphold the charge, irrespective of the withdrawal of the objection by the complainant." (E.1.2).

Further statements in the judgement

The further statements concern Art. 90 SVG and are not presented here (see E. 2).

5. Remarks

The judgment 6B_222/2022 of January 18, 2023 has a major impact on practice. On the one hand, it is an overall view of the summary penalty order. On the other hand, the judgment shows that appeals against summary penalty orders - according to the (deceptive!) motto "you can make the appeal and see" - are anything but free of risks. According to the Federal Supreme Court, the possibility of withdrawing the objection only exists if the public prosecutor's office adheres to the original penalty order after accepting the evidence. Not, however, if it issues a new summary penalty order or brings charges before the competent court. This means that the so-called "prohibition of prejudicial treatment" does not apply in summary penalty order proceedings. Lawyers may now be more cautious about recommending an appeal.

6. Further advice

If you have any questions about a case or require advice, please do not hesitate to contact us.