Dismissal of appeal against revocation of driving instructor licence due to character deficiencies and serious professional misconduct

Facts

Parties and procedural history:

The appellant [A.] held a Swiss federal certificate as a driving instructor (category B) and a cantonal driving instructor licence. On 27 March 2023, the Road Traffic Office of the Canton of Thurgau revoked his driving instructor licence for an indefinite period. The Office justified its decision by stating that the appellant did not guarantee flawless professional conduct and violated legal requirements. Both professional and character deficiencies were cited as grounds.

The appellant appealed against this decision. The Appeal Commission for Road Traffic Matters of the Canton of Thurgau upheld the revocation in its decision of 14 June 2023. The Administrative Court of the Canton of Thurgau dismissed the appeal with a judgment of 17 January 2024. In the proceedings before the Administrative Court, the Road Traffic Office relied on a final report by the Cantonal Police of Thurgau dated 31 March 2023, which accused the appellant of multiple violations of the Road Traffic Act (RTA), including misuse of identification documents and number plates, as well as aiding and abetting the procurement of identification documents by deception.

With an appeal filed on 12 March 2024, the appellant appealed to the Federal Supreme Court, seeking the unconditional annulment of the contested decision. The Administrative Court of the Canton of Thurgau, the Appeal Commission and the Road Traffic Office requested the dismissal of the appeal.

Statement of facts:

Prior to obtaining the federal certificate and the cantonal driving instructor licence, the appellant had repeatedly provided practical driving instruction and had been fined by summary penalties on 10 February 2016 and 10 January 2017 for doing so. The final report by the Cantonal Police of Thurgau dated 31 March 2023 alleged that he had assisted at least one examinee in passing the theory test by using technical aids (including an earpiece and a button camera) to provide the correct answer. He was also accused of having agreed to receive payment of 2,500 Swiss francs for this assistance. The appellant did not dispute these allegations but claimed that it had merely been a matter of translation assistance. The lower court considered these offences as serious character deficiencies that made his teaching activity unacceptable and justified the indefinite revocation of the driving instructor licence under Art. 27 lit. b Driving Instructor Ordinance (DIO).

Considerations

Admissibility of the appeal:

The Federal Supreme Court first examined the admissibility of the appeal in public law matters. It found that this was a cantonal final decision in a public law matter against which an appeal to the Federal Supreme Court was open (Art. 86 para. 1 lit. d, Art. 82 lit. a, Art. 90 FSCA). The appellant was entitled to bring the legal remedy (Art. 89 para. 1 FSCA) and the appeal was filed within the time limit (Art. 100 para. 1 FSCA). The appeal complied with the formal requirements (Art. 42 FSCA), as despite initially seeking annulment, it clearly indicated that the appellant sought to maintain his driving instructor licence (FSCA 137 II 313 para. 1.3).

Scope of review and factual basis:

The Federal Supreme Court reviewed the appeal within the scope of the alleged violations of law (Art. 95 lit. a and b FSCA). It based its review on the facts established by the lower court (Art. 105 para. 1 FSCA). A deviation from the lower court’s factual findings was only possible if they were manifestly incorrect or arbitrary or based on a violation of law and decisive for the outcome of the proceedings (Art. 97 para. 1 FSCA). The appellant had challenged the jurisdiction of the cantonal authorities to revoke the cantonal driving instructor licence, without however explaining how this revocation would lead to an indirect deprivation of the federal certificate. This objection was therefore insufficiently substantiated (Art. 42 para. 2 FSCA) and was not examined further.

Violation of economic freedom (Art. 27 Cst.):

The appellant alleged a violation of his economic freedom (Art. 27 Cst.). He argued that Art. 16 para. 1 RTA in conjunction with Art. 27 Cst. did not provide a sufficient legal basis for the revocation of the driving instructor licence, as this constituted a severe interference with a fundamental right. He further claimed that the revocation was not proportionate and that the prohibition of arbitrariness (Art. 9 Cst.) had been violated.

The Federal Supreme Court confirmed that while the economic freedom was severely impaired by the revocation of the driving instructor licence, there was a sufficient legal basis in Art. 16 para. 1 RTA in conjunction with Art. 27 Cst.. The essential elements of the legal regulation were contained in the RTA itself, while the details were regulated in the Driving Instructor Ordinance. This sufficed to meet the requirements for a formal statutory basis (Art. 36 para. 1 Cst.). The…