Road traffic law is a legal field that encompasses multiple disciplines. An infringement of the Federal Act on Road Traffic (FART) entails both penal and administrative sanctions. Furthermore, the FART has consequences in the field of civil law, particularly concerning civil liability.
Article 58 para. 1 of the Swiss Code of Obligations (SCO) presumes the civil liability of the vehicle holder in case of damage caused by its use. According to Article 58 para. 3 SCO, the vehicle holder is liable for the fault of the driver and assistants in the service of the vehicle as for his own fault. The obligation to conclude civil liability insurance for a motor vehicle is set out in Article 63 SCO. This insurance covers the civil liability of the holder and the persons for whom he is responsible under the FART. Article 65 FART allows the injured party to take direct action against the insurer, who is generally solvent. The National Insurance Bureau (NIB), established under Article 74 FART, covers liability for damages caused in Switzerland by foreign motor vehicles or trailers. This allows an injured party in Switzerland to bring an action against the NIB if the vehicle causing the accident is registered abroad.
An offense against the FART results in a penal sanction, which can be an order fine, a misdemeanor, a fine, a pecuniary penalty, or a custodial sentence. The competent penal authority varies according to the severity of the offense. Offenses against the FART are prosecuted ex officio. In cases of accidents with an injured party, the offense against the FART may be cumulated with other offenses such as property damage, negligent bodily harm, or negligent homicide. When this second offense is only prosecuted ex officio, the injured party may withdraw their criminal complaint or refrain from filing it. Nevertheless, the penal procedure continues for the FART aspect, which is a prerogative of the State. The penal procedure is decisive in establishing the facts retained in the administrative procedure. It is advisable to request the suspension of the administrative procedure until the penal procedure is completed. The criminal judge is not competent to pronounce on the driving license, so the personal or professional needs of the defendant do not affect the penal sanction.
The administrative aspect of road traffic concerns the sanction related to the driving authorization. In the case of committing a penal offense under the FART, the initiation of an administrative procedure is necessary. This procedure can lead to sanctions ranging from a warning to the definitive withdrawal of the driving license.
It is important to note that there is a distinction between the withdrawal of admonition and the withdrawal of security of the driving license. The withdrawal of admonition aims to punish the driver for committing an offense under the FART. The duration of the withdrawal will depend on the severity of the offense, the circumstances in which it was committed, and any previous record of the driver.
Conversely, the withdrawal of security aims to remove from the road a driver who is considered dangerous for other users. The preventive withdrawal, which is an instructional measure, and the definitive withdrawal, which is the last resort, pursue the same objective.
The restoration of the driving license after a security withdrawal requires that the driver has demonstrated that they have become fit to drive again. In principle, the assessment of fitness is made after a probationary period, and the restoration of the driving license is subject to the favorable conclusions of a medico-legal expert opinion.
Therefore, it is essential to respect road traffic rules to avoid administrative sanctions. In the case of license withdrawal, it is important to undergo the necessary examinations to demonstrate one’s fitness to drive again.