Revocation of driving licence for a serious traffic offence: speeding within a built-up area by 26 km/h, appeal dismissed

Facts

The appellant (born 1941) overtook two cyclists on 21 May 2018 in the municipality of Rothenfluh on the Ormalingerstrasse in the direction of Ormalingen at a speed of 76 km/h (corrected by a safety margin of 3 km/h). The sign 'End of maximum speed 50 generally' was located approximately 220 m after the measuring point.

The Public Prosecutor's Office of Basel-Landschaft issued a penal order on 26 July 2018 for gross violation of traffic rules (Art. 90 para. 2 RTA in conjunction with Art. 27 para. 1, Art. 32 para. 2 RTA and Art. 4a para. 1 and 5 TRegO). The Criminal Court Presidium of Basel-Landschaft sentenced him on 19 June 2019 to a conditional fine of 20 day-fines of CHF 160.-- each and a fine of CHF 800.--; the judgment became final.

The Road Traffic Office of the Canton of Aargau (SVA) revoked the appellant's driving licence by decision of 26 September 2019 for a serious offence (Art. 16c RTA) for three months (22 November 2019 to 21 February 2020). The Department of Economy and Interior (DVI) dismissed the appeal on 19 June 2020. The Administrative Court of the Canton of Aargau dismissed the appeal on 4 January 2021, insofar as it was admissible, and instructed the SVA to newly determine the start of the revocation period after the judgment became final.

By public law appeal of 1 February 2021, the appellant requested the annulment of the lower court's judgment, the deletion of his criminal record entry and the holding of a possible hearing or court session in Ormalingen (inspection or public hearing). The SVA, the DVI and the Federal Roads Office (ASTRA) requested dismissal.

The subject matter of the dispute was whether the lower court correctly qualified the appellant's conduct as a serious violation of road traffic regulations within the meaning of Art. 16c para. 1 lit. a RTA.

Considerations

The Federal Supreme Court entered into the appeal only to a limited extent. The request to annul the criminal record entry was inadmissible, as the criminal assessment was not the subject of the administrative proceedings and the subject matter of the dispute cannot be expanded (Art. 99 para. 2 FSCA). Otherwise, the admissibility requirements were met (Art. 82 lit. a, Art. 86 para. 1 lit. d, Art. 89 para. 1 FSCA).

The Federal Supreme Court rejected the request for an inspection in Ormalingen (Art. 55 FSCA in conjunction with Art. 55 ff. FCPA), as no findings relevant to the decision were to be expected. The lower court was also entitled to dispense with an inspection without violating the right to be heard (Art. 29 para. 2 Cst.), as the traffic situation sufficiently emerged from the file and the appellant had the opportunity to comment and to submit image material in the criminal proceedings. The court denied a right to a public hearing of the parties (Art. 57 and Art. 59 FSCA, Art. 30 para. 3 Cst., Art. 6 no. 1 ECHR), as the appellant had not made such a request in the cantonal proceedings but had only requested an inspection.

A serious offence under Art. 16c para. 1 lit. a RTA requires a qualified objective endangerment and qualified culpability (at least gross negligence). According to case law, within a built-up area, exceeding the maximum speed of 50 km/h by 25 km/h or more generally constitutes a serious offence (BGE 132 II 234 E. 3), regardless of the specific circumstances. The administrative authority is bound by the criminal court's findings of fact and by the legal assessment only insofar as the latter does not depend heavily on facts that the criminal court knows better, for example through personal questioning.

The appellant argued that the road had the visual character of an area outside a built-up zone. The Federal Supreme Court countered that, pursuant to Art. 4a para. 2 TRegO and Art. 22…