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Road traffic law
Road traffic law encompasses a highly multidisciplinary field.
A violation of the Federal Road Traffic Act (LCR) necessarily involves a penal sanction (see below B.)
Furthermore, depending on the severity of the violation of the LCR, it also entails an administrative sanction (see below C.)
It is worth noting that the LCR also has numerous consequences in civil law, particularly in the field of civil liability.
In this regard, it is important to mention Article 58, paragraph 1 of the Code of Obligations (CO), which establishes a presumption of civil liability for the holder of a vehicle if, following its use, a person is killed, injured, or material damage is caused.
Article 58, paragraph 3 of the CO states that the holder of the vehicle is liable for the fault of the driver and the auxiliaries serving the vehicle as for their own fault.
The importance of Article 58, paragraph 3 of the CO should be analyzed, on one hand, in light of Article 63 of the CO, which requires mandatory liability insurance for a motor vehicle to be put into circulation on public roads.
Indeed, this mandatory insurance covers the civil liability of the holder and persons for whom they are responsible under the LCR.
On the other hand, Article 65 of the LCR establishes the right of the injured party to take direct action against the insurer.
This allows the injured party to take action against a generally solvent legal entity.
Similarly, Article 74 of the LCR provides for the establishment of the National Insurance Bureau (BNA).
The BNA is constituted and operated by insurance institutions authorized to operate in Switzerland in the sector of motor vehicle liability insurance.
The main objective of the BNA is to cover liability for damages caused in Switzerland by foreign motor vehicles or trailers.
This allows an injured party victim of an accident in Switzerland to bring an action in Switzerland against the BNA if the vehicle involved in the accident is registered abroad.
Penal aspect:
A violation of the LCR implies a penal sanction. This penalty can consist of a summary fine, a contravention, a fine, a pecuniary penalty, or even a custodial sentence.
The competent penal authority varies depending on the severity of the offense.
Violations of the LCR are prosecuted ex officio.
In cases of an accident with an injured party, the offense against the LCR can be combined with other offenses (e.g., property damage, negligent bodily injury, negligent homicide).
When this second offense is only prosecuted ex officio (e.g., simple bodily injury), the injured party may withdraw their criminal complaint or refrain from filing it.
Nevertheless, the criminal procedure will continue for the LCR aspect since it is a prerogative of the state.
The criminal procedure will be determinant in setting the facts that will be retained in the administrative procedure.
At this stage, it is worth noting, on one hand, that the criminal and administrative procedures are conducted by two separate authorities.
On the other hand, they are conducted simultaneously.
Therefore, it is customary to request the suspension of the administrative procedure until a judgment is made in the criminal case.
Indeed, it is up to the individual to defend themselves properly in the criminal procedure so that the facts favorable to them are retained in the administrative procedure.
Since the criminal judge is not competent to pronounce on the driving license, the personal or professional need of the individual is not decisive on the penal sanction.
Administrative aspect:
Apart from procedures related to the user’s fitness to drive, the opening of an administrative procedure presupposes the commission of a penal offense against the LCR.
When the very principle of the offense is contested, it is important to do so within the framework of the criminal procedure (see above B.).
The administrative procedure concerns the sanction related to the driving authorization.
This sanction can range from a warning to the definitive withdrawal of the driving license.
It is important to distinguish between the withdrawal of admonition from the driving license and the withdrawal of security from the driving license.
The withdrawal of admonition aims solely to punish the individual for committing an offense against the LCR.
The duration of the driving license will then depend on the severity of the fault committed, the circumstances in which the offense was committed, and the possible antecedents of the individual.
The objective of the security withdrawal is to remove a driver considered dangerous to other road users.
The preventive withdrawal, which is an instructive measure, and the definitive withdrawal, which is the ultima ratio of the admonition withdrawal, pursue the same objective.
The restitution of the driving license after a security withdrawal presupposes that the individual has demonstrated that they have (re)become fit to drive.
In principle, the examination of fitness is done after a probationary period, and the restitution of the driving license is subject to the favorable conclusions of a medico-legal expertise.
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PBM Avocats – Law firm based in Geneva and Lausanne. Lawyers registered at the bars of Geneva and Vaud.
PBM Avocats in Geneva
Boulevard Georges-Favon 26
1204 Genève
T. : +41 22 348 32 35
PBM Avocats in Geneva
Boulevard Georges-Favon 26
1204 Genève
T. : +41 22 348 32 35
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