Facts
The appellant X. was inspected on 6 October 2013 during a heavy goods vehicle control in the canton of Nidwalden while driving a German coach. The evaluation of the tachograph revealed that X. had exceeded the daily maximum driving time on 12 and 13 September 2013, failed to comply with mandatory driving breaks and disregarded rest periods. On 7 January 2014, the public prosecutor's office of Nidwalden issued a penal order and convicted X. of intentional exceeding of the driving time and negligent offences against driving breaks and rest periods, imposing a fine of 1,250 Swiss francs. X. filed an objection against the penal order.
The Criminal Court of Nidwalden acquitted X. on 1 September 2014. The public prosecutor's office of Nidwalden then appealed. The Higher Court of Nidwalden convicted X. on 12 May 2015 in accordance with the indictment and confirmed the fine of 1,250 Swiss francs. X. filed an appeal in criminal matters with the Federal Supreme Court and requested the annulment of the Higher Court's judgment and confirmation of the Criminal Court's acquittal. Alternatively, X. requested that the case be remitted to the lower court for re-examination.
The appellant complained in particular of a violation of the accusation principle (Art. 9 CrimPC), as the indictment did not contain any location details and the applicable legal provisions were not clearly evident. Furthermore, X. contested the applicability of the WHRPO 1 and the AETR to offences committed abroad, as X. had been driving a German vehicle in Germany and Poland.
Considerations
The Federal Supreme Court first examined compliance with the accusation principle (Art. 9 CrimPC). According to this principle, the indictment must describe the facts of the case in objective and subjective terms with sufficient precision to enable the accused to exercise their defence rights appropriately. The indictment must in particular specify the time of the offence, the acts and the legal qualification of the charges with sufficient clarity. In the present case, the indictment did not contain any location details, but it did provide sufficient temporal precision regarding the offences (12 and 13 September 2013) and a clear description of the acts (exceeding the driving time, failure to comply with driving breaks and rest periods). The lack of location details did not impair the appellant's ability to defend themselves, as the acts and the legal qualification (violation of Art. 5, 8 and 9 WHRPO 1) were clearly recognisable. Furthermore, the subjective elements of the offence (intentional exceeding of the driving time, negligent violations of driving breaks and rest periods) were sufficiently set out. The indictment thus met the requirements of the accusation principle and the right to be heard.
The Federal Supreme Court then addressed the question of whether the WHRPO 1 and the AETR apply to offences committed abroad. The territoriality principle of the Road Traffic Act (RTA) generally provides that Swiss criminal provisions apply only to facts occurring in Switzerland. However, Art. 56 RTA derogates from this principle by empowering the Federal Council to issue regulations that also apply to offences committed abroad where this is required in an international context. Based on this provision, the WHRPO 1 was issued, which also regulates compliance with driving and rest times in international traffic. In addition, Switzerland is a contracting party to the AETR, which also governs working conditions in international road traffic. Both sets of rules aim to enhance safety in international road traffic and establish uniform standards.
The Federal Supreme Court found that the WHRPO 1 and the AETR also apply to offences committed abroad, provided that the offences were committed in a contracting state of the AETR and the accused was inspected in Switzerland. This follows from Art. 12 para. 6 lit. a AETR, which empowers the contracting parties to impose sanctions on drivers if offences are detected in their territory, regardless of where the act was committed. Switzerland, as a contracting party to…