Validity of a late objection to a penalty order due to deemed service where a collection notice was placed in a neighbour's letterbox

Facts

The Regional Public Prosecutor's Office Bern-Mittelland sentenced the appellant ([X.] ) by penalty order of 24 October 2018 for multiple violations of the Road Traffic Act (RTA) to a fine of CHF 500.--.

The penalty order was handed to the post for delivery on 25 October 2018. After an unsuccessful delivery attempt on 26 October 2018, a collection notice was left. The item was not collected within the 7-day collection period and was returned to the Public Prosecutor's Office on 5 November 2018.

The Public Prosecutor's Office had the penalty order served personally on 21 November 2018. The appellant filed an objection on 22 November 2018. By letter of 27 November 2018, the Public Prosecutor's Office stated that the objection was late and referred to the deemed service (Art. 85 para. 4 CrimPC), the possibility of withdrawal and the application for restoration.

The appellant maintained her objection. The Regional Court Bern-Mittelland, by decision of 1 March 2019, did not enter into the objection and established that the penalty order had become final. The appeal filed against this was dismissed by the Obergericht of the Canton of Bern, Criminal Appeals Chamber, by decision of 2 May 2019.

Before the Federal Supreme Court, the appellant complained of arbitrary assessment of evidence, violation of the principle 'in dubio pro reo' and of the service provisions of Art. 85 CrimPC. She argued that the collection notice had been wrongly placed in her neighbour's letterbox, as several letters from the post confirmed, in which the post apologised for errors.

The lower court considered the post's letters vague and saw no concrete indications of a delivery error. It assumed proper service: the period had expired on 2 November 2018 and the objection period on 12 November 2018, so the objection of 22 November 2018 was late.

Considerations

Time limits triggered by a notification begin to run on the following day (Art. 90 para. 1 CrimPC). A registered postal item that is not collected is deemed collected on the seventh day after the unsuccessful delivery attempt, provided that delivery had to be expected (Art. 85 para. 4 lit. a CrimPC).

For registered postal items, there is a rebuttable presumption that the notice was properly placed in the addressee's letterbox and that the date of delivery was correctly recorded. The burden of proof is reversed in that, in the event of non-proof, a decision is made to the detriment of the addressee who disputes receipt. Counter-evidence requires proof of a predominant probability of delivery errors; non-receipt is a negative fact, so full proof can hardly ever be furnished. The mere abstract possibility of errors is not sufficient; rather, there must be concrete indications of an error (BGE 142 IV 201 E. 2.3).

The conclusion that counter-evidence has not been furnished constitutes an assessment of evidence, which is reviewed before the Federal Supreme Court only for arbitrariness.

The post did apologise several times and could not itself reliably confirm that delivery had been correct. A delivery error was therefore not excluded. However, this was qualified because the letters did not specify concretely what was objected to, only the letter of 5 April 2019 mentions the…