Facts

On 16 December 2024, the Federal Court issued a decision in the case opposing the holder of a vehicle (hereinafter referred to as “the holder”) to the Public Prosecutor’s Office of the Republic and Canton of Geneva. The dispute concerns a conviction for speeding committed by an unidentified third party.

On 30 March 2021, a speeding offence of 16 km/h (measured speed of 81 km/h for a limit of 60 km/h) was recorded by an automatic radar on the road from U. to V. The vehicle, registered in the holder’s name, was being driven by an unidentified person. On 10 May 2021, the holder received an order fine of 240 Swiss francs for this offence. As the fine was not paid within the deadline, a penal order was issued against him on 30 July 2021 by the Traffic Offences Service of Geneva.

The holder filed an objection against this penal order, denying being the perpetrator of the offence. On 25 July 2022, the Police Court of Geneva found him guilty of a simple violation of road traffic rules (Art. 90 para. 1 RTA) and sentenced him to a fine of 240 francs. On 6 April 2023, the Criminal Appeals and Review Chamber of the Court of Justice of Geneva upheld this judgment by dismissing the holder’s appeal.

The holder then filed an appeal in criminal matters to the Federal Court, seeking his acquittal and claiming compensation of 3,281.70 francs for his defence costs.

Considerations

The Federal Court examined whether Art. 7 para. 5 of the Order on Fixed Penalties (FixPenA) allows the holder of a vehicle to be convicted for an offence he did not personally commit, in this case speeding. This provision establishes a subsidiary liability of the holder when the perpetrator of the offence cannot be identified. However, the cantonal court expressly excluded that the holder was the perpetrator of the offence, which makes the conviction questionable in light of the principle of guilt (nulla poena sine culpa).

Art. 7 para. 5 FixPenA was interpreted by the Federal Court as an administrative measure, rather than a penal one. This interpretation is supported by several arguments:

  • Wording of the law: The text of Art. 7 para. 5 FixPenA does not provide for a penal conviction of the holder, but only his obligation to pay the fine in the event of an offence attributable to an unidentified driver. The preparatory works do not support a penal interpretation of this provision.
  • Principle of guilt: A penal sanction may only be imposed where individual responsibility is clearly established. The Federal Court recalled that penal responsibility cannot be transferred, and that the status of holder is not sufficient to establish personal guilt.
  • Administrative nature of the measure: Art. 7 para. 5 FixPenA aims to ensure the effective enforcement of fixed penalties and road safety, without constituting a punishment. It is a subsidiary administrative liability, allowing the fine to be covered when the perpetrator of the offence cannot be…