Facts
The appellant has worked as a self-employed driving instructor since 2002. He had a long series of traffic offences and warning revocations. His driving licence was revoked in 2005 for lack of suitability of character, and again in 2011 for failing to attend an ordered traffic-medical and psychological examination. After a new driving test, his category B driving licence was reissued on 16 August 2016, but his driving instructor licence was not.
Due to disregard of the alcohol abstinence condition, the Road Traffic and Navigation Office of the Canton of St. Gallen (Road Traffic Office) again revoked the driving licence and the driving instructor licence for an indefinite period in 2017. The Administrative Appeals Commission upheld an appeal on 31 May 2018 and remitted the matter for further investigation, in particular the traffic-psychological examination and the examination of a precautionary revocation of the driving instructor licence.
On 2 July 2018 the Road Traffic Office ordered the precautionary revocation of the driving instructor licence. The Administrative Appeals Commission dismissed the appeal on 20 November 2019 and withdrew suspensive effect from any further appeal. The Administrative Court of the Canton of St. Gallen dismissed the appeal on 15 January 2020 (B 2019/252).
The appellant lodged a public law appeal with the Federal Supreme Court, requesting the annulment of the lower court's decision and the reissue of the driving instructor licence; at the same time he applied for legal aid. The Federal Supreme Court dismissed the appeal and granted legal aid and legal representation.
Considerations
A public law appeal is admissible against the precautionary revocation, an interlocutory decision, as it may cause a disadvantage that cannot be remedied later (Art. 93 para. 1 lit. a FSCA, Art. 98 FSCA). The complaint is limited to constitutional rights and is subject to a qualified duty to plead and substantiate. A defect in the notification of the order of 2 July 2018, based on the organigram, is an impermissible novelty (Art. 99 para. 1 FSCA).
The complaint of violation of the right to be heard (Art. 29 para. 2 Cst.) is unfounded. The lower court explained why Art. 18 para. 1 ORP/SG provides a sufficient legal basis and did not have to refute each submission individually.
The precautionary revocation of the driving instructor licence seriously interferes with freedom of commerce (Art. 27 Cst.) and requires a legal basis (Art. 36 para. 1 Cst.). The Federal Supreme Court reviews such decisions of a judicial lower court with particular restraint and sets them aside only where there is an abuse or excess of discretion, or a manifestly wrong assessment of essential facts or interests. The prognosis on the merits may be considered only where the outcome is clear.
Art. 18 para. 1 ORP/SG is applicable as cantonal procedural law for the enforcement of federal road traffic law (Art. 1 para. 3 APA, Art. 106 paras. 2 and 3 RTA), although Art. 82 para. 1 Cst. confers comprehensive legislative competence on the Confederation. The lower court properly weighed the interests: the numerous traffic offences give rise to justified doubts…