Withdrawal of appeal against a penalty order and prosecution by the public prosecutor's office

Facts

Parties: Defendant A. and the Public Prosecutor's Office of the Canton of Nidwalden.

Facts: On May 25, 2019, A. was recorded driving at a speed of 89 km/h in a 40 km/h zone. The Public Prosecutor's Office issued a penalty order for intentional gross violation of traffic regulations (Art. 90 para. 2 RTA). A. filed an appeal, the Public Prosecutor's Office commissioned an expert opinion confirming the measurement. Subsequently, the Public Prosecutor's Office continued the proceedings for intentional particularly blatant disregard of the speed limit (Art. 90 para. 3 and 4 RTA) and filed an indictment, despite the withdrawal of the appeal by A.

Proceedings: The Canton Court of Nidwalden sentenced A. to a conditional prison sentence of 12 months. The appeal was dismissed. A. filed a complaint in criminal matters with the Federal Supreme Court.

Considerations

The appeal against a penalty order results in the case being returned to the jurisdiction of the Public Prosecutor's Office. The Public Prosecutor's Office must decide, after taking evidence, whether to adhere to the penalty order, discontinue the proceedings, issue a new penalty order, or file an indictment (Art. 355 para. 3 CrimPC). The accused person can only withdraw the appeal if the Public Prosecutor's Office adheres to the original penalty order (Art. 355 para. 3 lit. a in conjunction with Art. 356 para. 1 and 3 CrimPC).

In the present case, the Public Prosecutor's Office decided, based on the evidence taken, that the matter could no longer be concluded in the penalty order procedure. The speed exceeded by at least 50 km/h, which required an indictment for intentional particularly blatant disregard of the speed limit (Art. 90 para. 3 and 4 RTA). The Public Prosecutor's Office was therefore not bound by the original penalty order, and…