Road traffic law

Contesting an offence or a licence withdrawal

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In Switzerland, the Federal Road Traffic Act (SVG/LCR (new tab)) governs traffic rules, criminal sanctions (art. 90 and 91 SVG), administrative measures against the driving licence (art. 16 et seq. SVG), and the civil liability of the vehicle keeper (art. 58 et seq. SVG). A single offence can therefore lead to several decisions, notified at different times by different authorities.

In practice, after a check or an accident, you may successively receive a fixed penalty notice, a summary penal order, then, several weeks or months later, a decision of the Road Traffic Office (OCV in Geneva) ordering a warning or a withdrawal. Each act starts its own deadline. Any oversight may definitively bar the right to challenge.

The main decisions that may be challenged

• Fixed penalty notice: for the listed minor offences (moderate speeding, parking, etc.). If the fine is not paid, ordinary criminal proceedings are opened.
• Summary penal order (art. 352 et seq. StPO/CPP (new tab)): decision issued by the Public Prosecutor or, for contraventions, by the Contraventions Service, which is the usual way of resolving traffic offences. It may be challenged by written objection within 10 days.
• Administrative decision of the OCV: warning, warning withdrawal (art. 16a to 16c SVG (new tab)), safety withdrawal (art. 16d SVG (new tab)) or precautionary withdrawal. The appeal deadline is in principle 30 days.
• Insurer’s decision: refusal of benefits, reduction for gross negligence, termination of the contract. There is no statutory appeal deadline, but the limitation period under the Insurance Contract Act runs (5 years, or 2 years for a contract concluded before 1 January 2022, art. 46 ICA (new tab)).

This page reviews the main situations encountered by a road user: contesting a traffic offence, challenging a licence withdrawal, obtaining compensation as the victim of an accident, and resolving a dispute with an insurer. Since deadlines are short, it is recommended to consult a lawyer without delay, as soon as a decision is received.

The summary penal order (art. 352 et seq. StPO/CPP (new tab))

The Public Prosecutor (or, for contraventions, the Contraventions Service) may issue a summary penal order when the facts are admitted or sufficiently established and the contemplated sanction does not exceed certain limits: a fine, a monetary penalty of up to 180 daily units or a custodial sentence of up to six months. This is the most frequent way of resolving road traffic cases.

The objection (art. 354 StPO/CPP (new tab)) must be filed in writing within 10 days of notification, with the authority that issued the order (Contraventions Service or Public Prosecutor). Reasons are not required, but in practice they are very useful to guide the further proceedings. Following an objection, that authority may either gather further evidence and rule again, or refer the file to the Police Court (in French Tribunal de police) which will rule on the merits.

Caution: an objection is not without risk. The Police Court is not bound by the sanction set out in the summary penal order and may, in principle, impose a stricter or a more lenient penalty. It is therefore useful, before opposing, to assess the actual prospects of obtaining better than what the order already provides.

Hierarchy of road traffic offences

• Contraventions (art. 90 para. 1 SVG (new tab)): simple breaches of traffic rules. Sanction: fine.
• Misdemeanours (art. 90 para. 2 SVG (new tab)): serious breaches creating a substantial risk to safety. Sanction: custodial sentence of up to three years or a monetary penalty.
• Aggravated case (“chauffard”) (art. 90 paras. 3 and 4 SVG (new tab)): particularly serious breach (e.g. very large speeding, illegal car race). Sanction: custodial sentence of one to four years. The minimum sentence may be reduced where there are mitigating circumstances (art. 90 para. 3^bis SVG); if the offender has not been convicted of a serious road traffic felony or misdemeanour in the previous ten years, the court may impose a custodial sentence of up to four years or a monetary penalty (art. 90 para. 3^ter SVG). Licence withdrawal: at least two years, reducible by up to twelve months if a sentence of less than one year was imposed (art. 16c para. 2 let. a^bis SVG (new tab)).
• Driving while incapacitated (art. 91 SVG (new tab)): alcohol, drugs or any other state leading to incapacity to drive. Depending on the level and circumstances, this may amount to a contravention (fine) or a misdemeanour (custodial sentence of up to three years or a monetary penalty).

Indirect effects: cascade towards licence withdrawal

A criminal conviction, even a lenient one, almost always opens administrative proceedings leading to a warning or to a licence withdrawal (see chapter Contesting a licence withdrawal). The administrative authority is in principle bound by the facts established in criminal proceedings, but retains its autonomy as to the classification of the seriousness of the offence and the choice of measure. A coordinated strategy across both proceedings is therefore essential: a hasty admission in the criminal proceedings may complicate the defence before the OCV.

Types of measures (art. 16 et seq. SVG (new tab))

• Warning (art. 16a para. 3 SVG (new tab)): in case of a minor offence, the offender receives a warning if the licence has not been withdrawn, and no other administrative measure has been ordered, in the previous two years; in case of a particularly minor offence, no measure at all is taken (para. 4).
• Warning withdrawal: aims at sanctioning and correcting behaviour:
  • art. 16a SVG (new tab) (minor offence);
  • art. 16b SVG (new tab) (medium offence);
  • art. 16c SVG (new tab) (serious offence).
• Safety withdrawal (art. 16d SVG (new tab)): ordered in case of unfitness to drive (medical issues, alcohol or drug dependency, mentally unstable persons). Its duration is indefinite; the licence is only restored once the cause of unfitness has been removed.
• Precautionary withdrawal: an interim measure ordered during the investigation when serious doubts exist as to the fitness to drive (e.g. pending a medical expertise).
• Probationary licence (art. 15a SVG (new tab)): the new driver’s three-year licence is annulled if a second medium or serious offence is committed during the probation period (see FAQ below).

Cascade of minimum durations

The SVG sets minimum withdrawal durations which increase in case of recurrence. The authority cannot go below these minima (art. 16 para. 3 SVG (new tab)), even where significant mitigating circumstances are present. The only exceptions are the mitigated sentence of a priority vehicle driver (art. 100 no. 4 SVG) and the “chauffard” case (below). The reference periods depend on the nature of previous withdrawals:

• Minor offence (art. 16a SVG): warning if no withdrawal or other measure in the previous 2 years; otherwise, withdrawal of at least one month; no measure if the offence is particularly minor.
• Medium offence (art. 16b SVG): at least 1 month; 4 months if one withdrawal (medium or serious offence) in the previous 2 years; 9 months if two withdrawals (at least medium offences) in the previous 2 years; 15 months if two withdrawals for serious offences in the previous 2 years; indefinite withdrawal, at least 2 years, if three withdrawals (at least medium offences) in the previous 10 years; permanent withdrawal if an indefinite withdrawal was ordered in the previous 5 years.
• Serious offence (art. 16c SVG): at least 3 months; 6 months if one withdrawal for a medium offence in the previous 5 years; 12 months if one withdrawal for a serious offence, or two for medium offences, in the previous 5 years; indefinite withdrawal, at least 2 years, if two withdrawals for serious offences or three for at least medium offences in the previous 10 years; permanent withdrawal if an indefinite withdrawal was ordered in the previous 5 years.
• Aggravated “chauffard” case (art. 16c para. 2 let. a^bis SVG): at least 24 months, reducible by up to 12 months if a sentence of less than one year was imposed.

The actual duration may be longer: the OCV takes into account the seriousness of the facts, prior record, professional need for the vehicle and the conduct of the offender. A well-developed argumentation may bring the duration close to the legal minimum, or even result in a withdrawal being replaced by a warning where appropriate.

Procedure and remedies (canton of Geneva)

1. OCV decision: notified by registered mail, reasoned, indicating the available remedy.

2. Appeal to the TAPI within 30 days of notification (art. 62 LPA-GE (new tab)). The appeal must be reasoned and accompanied by a copy of the contested decision. An advance on costs may be required.

3. Appeal to the Administrative Chamber of the Court of Justice within 30 days of notification of the TAPI judgment.

4. Appeal in public law matters to the Federal Supreme Court, within 30 days of notification of the cantonal decision (art. 100 LTF (new tab)).

In principle, an appeal has suspensive effect (art. 66 para. 1 LPA-GE (new tab)). However, the OCV often declares its decision enforceable notwithstanding an appeal: the withdrawal may then be enforced during the proceedings. In that case, the appeal should include a request for restoration of suspensive effect (art. 66 para. 3 LPA-GE) or for interim measures, motivated by urgency (e.g. need of the vehicle to carry on professional activity).

This page focuses on the criminal (offence) and administrative (withdrawal) aspects of road traffic law. The civil compensation aspect, which is often the main issue for the victim (medical costs, loss of income, moral compensation, household damage, future economic prejudice), is dealt with in detail on a dedicated page of the website, which we invite you to consult:

Dedicated page: compensation for road accident victims

• Civil liability: vehicle keeper’s liability
• Heads of bodily damage
• National Insurance Bureau / National Guarantee FundWEB

Open the “Civil liability” page

Heads of damage: quick overview

In case of injuries, you may claim: medical and therapeutic costs not covered by social insurance, current and future loss of income, household damage (inability to perform household tasks), future economic prejudice, moral compensation (art. 47 CO (new tab)), as well as pre-litigation lawyer’s fees and certain ancillary costs. Each head must be quantified, documented and negotiated with the insurer.

Victim Support Act (LAVI)

Where the injuries result from an offence (e.g. hit-and-run, drink driving causing bodily harm, aggravated “chauffard” case), the victim may, in addition, benefit from the Victim Support Act (new tab) (LAVI): immediate aid (medical, psychological, legal), counselling, and compensation or moral compensation within certain limits. LAVI aid is subsidiary but often quicker than civil proceedings.

Casco insurance (ICA / VVG (new tab))

Casco is an optional insurance covering damage to the insured’s own vehicle: theft, vandalism, natural damage, glass breakage (partial casco), as well as collision damage caused by the insured (full casco). It is governed by the Federal Insurance Contract Act (ICA / VVG) and by the general insurance terms (GIT) of each company.

• Reduction for gross negligence (art. 14 para. 2 ICA (new tab)): if the claim is due to gross negligence by the insured (e.g. high blood alcohol level, excessive speed, driving without a licence), the insurer may reduce its benefits to an extent corresponding to the seriousness of the negligence. The reduction is neither automatic nor total: it must be proportionate.
• Misrepresentation and forfeiture (art. 6 ICA (new tab), art. 40 ICA (new tab)): an inaccurate declaration upon conclusion of the contract, or unfair conduct after the claim (e.g. exaggeration of the damage), may lead to termination of the contract or to forfeiture of benefits. Here too the conditions are strict and the consequences may be challenged.
• Limitation period (art. 46 para. 1 ICA (new tab)): claims under the insurance contract are time-barred after 5 years from the occurrence of the fact giving rise to the obligation for contracts concluded since 1 January 2022, and after 2 years for older contracts (art. 103a ICA (new tab); BGE/ATF 151 III 35 (new tab)).

Third-party liability insurer of the wrongdoer (art. 65 SVG (new tab))

If you are the victim of an accident caused by another driver, you may turn directly to the third-party liability insurer of the responsible vehicle, without first having to sue the driver or keeper. The defences the insurer may raise based on the contract (unpaid premiums, contractual exclusion, etc.) are in principle not enforceable against you: they only concern the internal relationship between the insurer and its insured.

In practice, the third-party liability insurer regularly seeks to reduce the compensation by relying on:

• a concurrent fault of the victim (art. 59 para. 2 SVG (new tab)) – unfastened seatbelt, crossing outside a pedestrian crossing, inappropriate speed, etc.;
• a restrictive assessment of the heads of damage (loss of income, household damage, future economic prejudice);
• the absence of adequate causation between the accident and persistent symptoms (typically in whiplash cases evolving into chronic disorders).

A counter-medical expertise and a rigorous economic analysis are often necessary to defend a fair compensation. The Civil liability page details these aspects.

Subrogation and recourse between insurers

Several insurers often intervene in parallel: your accident insurer (LAA if you are an employee), your health insurer, your casco insurer, and the third-party liability insurer of the wrongdoer. These insurers may subrogate your rights up to the amount of the benefits they have paid:

• Social insurers (LAA, IV, AHV, health insurance): automatic subrogation up to the amount of the damage actually covered (art. 72 LPGA (new tab)).
• Casco insurer: subrogation in the rights of the insured against the third-party wrongdoer (art. 95c para. 2 ICA (new tab) for contracts concluded since 1 January 2022; former art. 72 ICA for older contracts).

For the victim, this mechanism prevents double indemnification but complicates coordination: it is necessary to clearly identify who pays what and to avoid signing a “full and final” release that would deprive certain social insurers, indirectly, of their right of recourse.

Standard procedure with an insurer

1. Notification of the claim within the contractual deadlines (typically 14 days), accompanied by useful documents (form, photographs, quotes, certificates).

2. Reasoned internal complaint in case of an unsatisfactory decision: the insurer is asked to reconsider its position, with additional evidence (counter-expertise, economic analysis, specialist certificates).

3. Referral to the Insurance Ombudsman (new tab): a private, free and independent body which offers mediation. Its decision is not binding but frequently leads to an improvement of the offer.

4. Action before the civil court in the absence of agreement. Against your own insurer, you may sue at the insurer’s registered office or at the place where it must pay its benefits, in principle your domicile (art. 10 CPC (new tab), art. 31 CPC (new tab)); for consumer contracts, the insured benefits from the forum at his/her domicile (art. 32 CPC (new tab)). Actions arising from a motor vehicle accident, including a direct action against the third-party liability insurer of the wrongdoer, may be brought before the court at the defendant’s domicile or registered office or at the place of the accident (art. 38 CPC (new tab)).

Information sheet

• Insurance Ombudsman – free and confidential mediationWEB
• National Insurance Bureau / National Guarantee FundWEB
• Portal ch.ch: vehicle registration and proof of liability insuranceWEB

M^e Jean-Philippe Anthonioz is available by appointment only.

If you wish to obtain further advice, please feel free to contact the secretariat of the firm by telephone in order to schedule an appointment for a fixed fee. You may also reach the firm using the contact details and means below. You may also book an online appointment (new tab).

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