Facts

The complainant [X.] and the respondent [A.] were involved in a traffic accident in which the complainant was injured. The respondent intended to drive his passenger car from a parking lot onto the lakeside road in the direction of Horgen, while the complainant was driving his motorcycle behind another vehicle. The complainant overtook the other vehicle and collided with the respondent's vehicle. The public prosecutor's office of Limmattal/Albis discontinued the investigation against the respondent, as no culpable behavior could be proven against him. The complainant filed a complaint of nullity with the request to repeal the discontinuation decisions and to obligate the public prosecutor's office to bring charges.

The parties

  • Complainant: [X.]
  • Respondent: [A.]
  • Public Prosecutor's Office of the Canton of Zurich

The Federal Court has upheld the complaint of nullity, insofar as it can be considered, and repealed the decision of the District Court of Horgen.

Considerations

The Federal Court has upheld the complaint of nullity, as the lower court did not rule out that the respondent violated the duty of care incumbent upon him. The respondent was subject to the right of way for all vehicles driving on the main road and had to take the measures required by the circumstances to prevent any impairment or endangerment of approaching vehicles with right of way.

The Federal Court has established that the respondent could not assume that the complainant had perceived him or understood his intention and for this reason might have had to refrain from overtaking. The respondent was obliged to exercise…