Facts
The complainant, mother of a school-age daughter, was imposed an administrative fine of CHF 250.- by the school authorities of the canton of Basel-Stadt because she did not ensure her daughter wore a mask in school. The daughter attended the 2C class of the primary school U. in Basel in the 2021/22 school year. A mask-wearing obligation applied in the indoor areas of primary schools from January 3, 2022, to February 16, 2022. The complainant was repeatedly informed about the mask-wearing obligation, the need to submit a medical certificate, and the possible legal consequences of non-compliance.
The decision of the head of the education department of the canton of Basel-Stadt of February 10, 2022, was challenged by the complainant. The Appellate Court of the canton of Basel-Stadt, as an administrative court, three-member panel, dismissed the appeal. The complainant lodged a complaint with the Federal Court in public law matters.
Considerations
The Federal Court dismissed the complaint. The complainant argued that the lower court had wrongly assigned the administrative fine to administrative law. In her view, it was rather a criminal charge within the meaning of Art. 6 ECHR.
However, the Federal Court found that the administrative fine in school law does not constitute a penalty within the meaning of Art. 6 ECHR. The lower court, regarding the alleged violation of Art. 7 ECHR, summarized that a criminal conviction within the meaning of Art. 6 ECHR only existed if the "Engel criteria" developed by the ECHR were met.
The Federal Court has already examined the "Engel criteria" twice with regard to their application to administrative fines in school law. In both cases, it denied the criminal nature of the administrative fine, as they did not meet the "Engel criteria". National law did not assign them to criminal law; the offense…