How are summonses delivered 1

Judgment head


140 IV 82


10. Extract from the judgment of the criminal law department i.S. X. against the Chief Public Prosecutor of the Canton of Aargau (complaint in criminal matters)

6B_908 / 2013 of March 20, 2014


Regeste


Art. 3 and 355 para. 2 StPO; Procedure in the event of objection, default after summons, fiction of withdrawal.

The provisions of the StPO are to be interpreted in the overall context of the law (E. 2.5).

The legal fiction, according to which the objection to the penalty order is considered withdrawn in the event of unexcused absence, only applies if the opponent is actually aware of the summons and thus also of the consequences of the default. Cases of illegal behavior remain reserved (E. 2.7).


Facts from page 82



A. The public prosecutor's office in Brugg-Zurzach pronounced X. guilty of gross traffic regulations with a penalty order dated December 20, 2012 and sentenced her to a conditional fine of 30 daily rates of CHF 140 and a fine of CHF 600.

X. objected. As a result, the public prosecutor summoned her on January 28, 2013 for an interrogation on March 19, 2013. The registered mail with the summons was reported for collection on January 29, 2013 and returned on February 6, 2013 with the note "not collected". After X. did not appear for an interrogation, the public prosecutor's office ruled on March 20, 2013 that the objection as

BGE 140 IV 82 p. 83

withdrawn and the penalty order of December 20, 2012 has become final.

B. On August 5, 2013, the Higher Court of the Canton of Aargau dismissed an appeal by X. against the order of March 20, 2013.


C. X. lodges a complaint in criminal matters. She requests that the higher court judgment and the order of the public prosecutor's office be set aside and that they be ordered to continue the criminal proceedings.

The public prosecutor's office requests that the complaint be dismissed. The higher court declined to comment.

The Federal Supreme Court approves the complaint, insofar as it can be entered into.


considerations


From the considerations:



The appellant complains that the lack of interest in the progress of the objection proceedings assumed by the lower court is based on a double fiction. First, knowledge of the subpoena is fictitious, in order then to infer the withdrawal of the objection from the lack of knowledge of the subpoena. The assumption of a withdrawal of the objection can only be justified if the accused consciously stayed away from the questioning, and this presupposes that he actually had knowledge of the summons.


As the lower court found, the summons was duly served by registered mail, reported for collection on January 29, 2013 and returned to the public prosecutor's office on February 6, 2013 with the note "not collected". The complainant was on vacation in northern Germany from January 28 to February 8, 2013.

The lower instance justified that the complainant had to reckon with official service after the objection to the penalty order. According to Article 85 (4) (a) of the Code of Criminal Procedure, the summons was deemed to have been served on the seventh day after the unsuccessful attempt at service, i.e. on February 5, 2013. In that the complainant did not do anything in spite of her objection in order to be able to receive official deliveries even during her vacation absence, she had expressed her disinterest in the further course of the proceedings. She stayed away from the questioning without excuse, so that her objection was deemed withdrawn according to Art. 355, Paragraph 2 of the Code of Criminal Procedure.

BGE 140 IV 82 p. 84


In judgment 6B_152 / 2013 of May 27, 2013 E. 4.5, the Federal Supreme Court stated with detailed justification that the penal order with the constitutional guarantee of legal recourse (Art. 29a BV) or the right under convention law to access a court with full review authority (Art. 6 No. 1 ECHR) is only compatible because it ultimately depends on the will of the person concerned whether he wants to accept it or, with an objection, exercise the right to judicial review. In view of this fundamental importance of the right to object, an implied withdrawal of the objection to the penalty order should only be accepted if the conclusion that the person concerned is consciously renouncing the legal protection he is entitled to with his lack of interest in the further course of the criminal proceedings should be taken into account. The (fictitious) withdrawal of the objection, which is linked by law to the unexcused absence, presupposes that the accused is aware of the consequences of his omission and that he waives his rights in the knowledge of the relevant legal situation.


According to Article 85 (4) (a) of the Code of Criminal Procedure, a registered mail item that has not been picked up is delivered on the seventh day after the unsuccessful delivery attempt, "if the person had to expect delivery". It is a legal delivery fiction. There is no actual handover, but rather it is derived from a certain process that the consignment has come to the knowledge of the addressee (HAUSER / SCHWERI, Commentary on the Zurich Courts Constitution Act, 2002, No. 2 on § 177 GVG). According to the legal system and wording, Art. 85 StPO concerns the "opening of decisions and delivery". The term "delivery" refers to decisions. Other communications can be sent by personal mail (FRANZ RICKLIN, StPO Comment, 2010, N. 2 on Art. 85 StPO).

The Code of Criminal Procedure regulates the "summons" in detail in Articles 201 to 206 of the Code of Criminal Procedure. Anyone summoned by a criminal authority must obey the summons (Art. 205 Para. 1 StPO). Anyone who does not comply with a summons without excuse or too late can be punished with a fine and also brought before the police, whereby the absence procedure is reserved (Art. 205 Para. 4 and 5 StPO).

On the other hand, if, in accordance with Art. 355 (2) StPO, a person raising an objection remains absent without excuse despite being summoned to an interrogation, "their objection is deemed withdrawn". Unlike in the

BGE 140 IV 82 p. 85

Under Article 205 of the Code of Criminal Procedure, a default in accordance with Article 355, Paragraph 2 of the Code of Criminal Procedure can lead to the total loss of legal protection, even though the person concerned has expressly raised an objection and thus applied for precisely this legal protection to the competent authority.

The individual provisions of the Code of Criminal Procedure are to be interpreted in the overall context of the law. The procedural enforcement of criminal law is the most drastic means of coercion of state power (message of December 21, 2005 on the standardization of criminal procedure law, BBl 2006 1085, 1128 point 2.1.2). With the "principles of criminal procedural law" in Art. 3 StPO, the law therefore places respect for human dignity and the requirement of fairness at the beginning of the codification. Article 3, Paragraph 2 of the Code of Criminal Procedure specifies the principle of good faith (lit. a), the prohibition of abuse of rights (lit. b), the requirement to treat all those involved in the proceedings equally and fairly, and the right to be heard as concretizations of these principles to grant (lit. c), as well as the prohibition to use methods in the gathering of evidence that violate human dignity (lit. d). The ratio legis thus prohibits a formalistic approach to individual provisions.

These principles must also be observed when applying Art. 355, Paragraph 2 of the Code of Criminal Procedure. The provision expressly contains two conditions that are decisive for the occurrence of the legal consequence, namely that the person concerned firstly stays away "despite summons" and secondly "without excuse". According to the generally recognized principles of procedural fairness and legality, the latter can only do this if he is even aware of the subpoena and the legal consequences of a default. This assumes the right to be heard. In the penalty order, reference is only made to the consequences of a failure to object (Art. 353 para. 1 lit. i StPO). Moreover, it appears questionable whether the constitutional duty to provide information and care under the rule of law can be complied with by providing information on all possible rights and obligations of the parties in criminal proceedings, which is incomprehensible for laypersons (judgment 6B_152 / 2013 of May 27, 2013 E. 4.5.2). The legal fiction of withdrawal can only come into play in a constitutional interpretation if the unexcused absence in accordance with the principle of good faith (Art. 3 Para. 2 lit. a StPO) indicates a lack of interest in the further course of criminal proceedings (judgment 6B_152 / 2013 of May 27, 2013 E. 4.5.4).

BGE 140 IV 82 p. 86


The penalty order is a proposal for the extrajudicial settlement of the criminal case. The only legal remedy is an objection. It is not a legal remedy, but triggers the judicial procedure in which a decision is made on the legitimacy of the offense allegations contained in the penalty order (Embassy, ​​op. Cit., P. 1291 on Art. 358 E-StPO or Art. 355 StPO). If an objection is raised, the matter initially lies with the public prosecutor's office. It is therefore responsible for compliance with the "principles of criminal procedural law" in the continuation of the proceedings. The person filing the objection can and must be able to rely on the rule of law. Only the informed accused can effectively dispense with judicial protection (Art. 29a in conjunction with Art. 30 BV) (cf. MARC THOMMEN, Kurzer Prozess - fairer Prozess ?, Verdicts and Abbreviated Procedures between Efficiency and Justice, 2013, p. 303 ff. On "fairness as participation").


According to the binding findings of the lower court (Art. 105 (1) BGG), the complainant had no knowledge of the subpoena and was therefore not informed about the consequences of absenteeism without excuse. In the absence of effective cognizance of the summons, it cannot be concluded from her default that she withdrew her objection and thus waived the judicial review. This legal consequence does not have to be expected according to the general right of subpoena (Art. 201 ff. StPO).

The lower instance has not found any illegal behavior on the part of the complainant. Due to the return of the summons, the public prosecutor's office knew that the complainant had not been informed. In this situation she would have been required to repeat the summons and thus ensure the right to be heard (Art. 3 Para. 2 lit. c StPO).