Driving Past on the Right and Overtaking on the Right on the Motorway

Facts

By a summary penalty order dated September 2, 1988, C. S. was fined CHF 350 by the District Office of Zofingen for violating various provisions of the Road Traffic Act (SVG) and the Road Traffic Regulations (VRV). He was accused of insufficient distance when driving in a line and of driving too close to the vehicle in front on the motorway, as well as of prohibited overtaking on the right on the motorway with obstruction. C. S. filed an objection to the summary penalty order, which was dismissed by the District Court of Zofingen and later by the High Court of Aargau. Thereupon, C. S. filed a nullity appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court states that according to Art. 35 para. 1 SVG, there is generally a prohibition on overtaking on the right. An exception is provided for in Art. 8 para. 3 sentence 1 VRV and Art. 36 para. 5 (new lit. a) VRV for driving in parallel columns on motorways, but only in the sense that merely driving past other vehicles on the right is permitted. Overtaking on the right by swerving out and merging back in is expressly prohibited according to Art. 8 para. 3 sentence 2 VRV.

Driving in parallel columns is, according to the case law of the Federal Supreme Court, at least "in the case of dense columns on both lanes". The prerequisite is thus dense traffic on the lanes of the respective direction of travel. The lower court wrongly rejected the assumption of traffic in parallel columns, as the mere finding of fluid traffic on both carriageways is not sufficient to exclude the existence of dense column traffic.

Insofar…