Facts
The case concerns a bill of indictment issued by the Traffic Section against [A.] for an infringement of the Road Traffic Act. [A.] filed an opposition to the order, which was then forwarded to the Criminal Court for the trial proceedings.
The President of the Criminal Court summoned the parties to the trial, but the registered mail containing the summons was not collected by the defendant within the storage period at the post office. On September 10, 2015, noting the unjustified absence of the opponent, the President considered the opposition withdrawn and struck out the criminal proceedings.
[A.] appealed this decision, arguing that he had not received the summons and was therefore unaware of the date of the trial. The Cantonal Court dismissed the appeal, and [A.] subsequently filed an appeal with the Federal Tribunal.
Considerations
The Federal Tribunal annulled the contested judgment and remanded the case to the Cantonal Court.
According to the case law of the Federal Tribunal, the legal fiction of the withdrawal of the opposition provided for in Art. 356 para. 4 CPC can only be applied if the defendant was actually aware of the summons and the consequences of his failure to appear. In the present case, since the registered mail containing the summons had not been collected by the defendant, he…