Rejection of the Fiction of Withdrawal of Objection to the Summary Penalty Order in Case of Unjustified Absence of the Accused

Facts

The complainant [X.] was sentenced by the district commissioner's office of the district of Bülach to a fine of CHF 400 by summary penalty order dated 21 February 2012 for violations of the Road Traffic Act. [X.] filed a timely objection to the summary penalty order. The district commissioner's office summoned [X.] to two hearings, and he failed to appear without excuse for the second hearing on 11 September 2012. Thereupon, the district commissioner's office determined the legal force of the summary penalty order. The High Court of the Canton of Zurich dismissed the complaint of [X.] against this decision.

Considerations

The Federal Supreme Court sets aside the decision of the High Court and remands the case to the lower instance for a new assessment. It justifies this as follows:

The statutory fiction of withdrawal of the objection in case of unjustified absence of the accused from the hearing violates the right to a fair trial under Art. 6 para. 1 ECHR. For an effective waiver of the right to judicial review, the following requirements must be met:

• The accused must be sufficiently informed about the consequences of his unjustified absence. The standardized instruction of the district commissioner's office was not sufficient for this.
• There must be a factual reason for a…