Violation of the right to be heard through conviction for a different offense than in the indictment

Facts

On November 21, 1997, a collision occurred between two vehicles driven by A. and B. on the Schwerzbachbrücke between Sachseln and Giswil. The examining magistrate fined B. with a penalty order for driving at an inappropriate speed. B. appealed against this penalty order, and A. was notified of the opening of a criminal investigation against him as well. With penalty orders of July 28, 1998, both parties were fined CHF 100.- each for driving at an inappropriate speed. Both parties appealed against these penalty orders.

The Public Prosecutor's Office of the Canton of Obwalden requested that A. be convicted for not yielding the right of way or failing to stop or return to a passing place. The President of the Cantonal Court convicted A. of a fine of CHF 100.- for failure to yield the right of way. A. appealed against the judgment and requested to be acquitted. The Public Prosecutor's Office filed a cross-appeal and justified it in the appeal hearing, among other things, with the fact that A. had also violated Art. 9 para. 2 TRegO. The Court of Appeal dismissed the appeal and the cross-appeal and found A. guilty of driving at a speed not adapted to the circumstances.

A. requests with a constitutional complaint that the judgment of the Court of Appeal be annulled because it violates the right to be heard, the principle of indictment, and the presumption of innocence.

Considerations

The Federal Court upholds the complaint. The complainant alleges that the contested judgment violates the principle of indictment. He was convicted of driving at an inappropriate speed, although the public prosecutor had explicitly stated that this accusation could not be made against him, and he had never had occasion to comment on this accusation.

The Federal Court states that the principle of indictment distributes the tasks between the investigative or prosecuting authorities on the one hand and the courts on the other, and determines the subject of the court proceedings. The indictment must describe the offenses attributed to the accused in their factual context so precisely that the accusations are sufficiently concretized.

The…