Facts
The appellant overtook a vehicle by swerving and re-merging on the A8 highway near Matten bei Interlaken on July 3, 2020. The Road Traffic and Shipping Office of the Canton of Bern subsequently revoked his driver's license for 12 months. The appellant requested the revocation of the driver's license be lifted, arguing that the new law, which came into effect on January 1, 2021, was milder than the old law and should therefore be applied.
The lower court dismissed the appeal, and the appellant appealed to the Federal Court. The Federal Court lifted the revocation of the driver's license and ruled that the appellant's improper overtaking should be qualified as an offense under the new law and no longer as a serious traffic violation within the meaning of Art. 90 para. 2 RTA.
Considerations
The Federal Court stated that the principle of lex mitior according to Art. 2 para. 2 SCC must be observed in administrative proceedings against the appellant when applying Art. 16 para. 2 RTA and that the new law, in particular Annex 1, No. 314.3 FixPenO, should be taken into account if it is milder than the law in force at the time of the appellant's offense.
The Federal Court ruled that improper overtaking by swerving and re-merging on the highway, in cases without aggravating circumstances, falls under the new No. 314.3 of Annex 1 FixPenO and should be assessed and punished as an offense. However, the provision should be interpreted narrowly and applied…