In 2018, while taking a leisurely stroll along a pavement, a mother and her 38-year-old daughter were hit by a driver who had lost control of his car. The daughter died instantly and the mother was seriously injured. The Swiss authorities did not find the driver guilty on the grounds that it was not possible to determine exactly the circumstances of the blackout he was claiming. The Swiss criminal court therefore acquitted him of any guilt and of any penalty.

How can homicide, even unintentional homicide, go unpunished? This is the question we put to the judges of the European Court of Human Rights (hereinafter: ECtHR), invoking Article 2 of the Convention, which stipulates that "everyone's right to life shall be protected by law", as well as Article 6, which requires guarantees for the conduct of the trial.

After appealing to all the Swiss courts, the applicant (the victim's mother) turned to the ECtHR to obtain justice for herself and her daughter (who died at the scene), and following the accident that had left her permanently disabled. She raised a number of complaints against our courts. In short, according to the claimant, the Swiss courts have failed to fulfil their obligation under Article 2 of the European Convention on Human Rights (ECHR). The latter requires the establishment of an effective and independent judicial system making it possible to establish the circumstances of the death and, where appropriate, to hold those responsible to account for their actions. This positive obligation under the same Article must be interpreted as applying in the context of any activity, public or otherwise, in which the right to life may be at stake (Ciechońska v. Poland, 2011, § 69; Banel v. Lithuania, 2013, § 68). In both these cases, the ECtHR accepted that the national courts had not done everything possible to ensure that unjustified violations of the right to life did not go unpunished. Such conduct would prevent any appearance of tolerance of unlawful acts and maintain public confidence (Oruk v. Turkey, 2014, §46).

In our case, the acquittal of the driver could appear to undermine the deterrent role of a judicial system in preventing violations of the right to life.

The first grievance, raised by the applicant, is based on the failure of the Swiss courts to take account of the evidence that could lead to the establishment of the circumstances of the death and, where appropriate, to hold those responsible to account for their actions, as well as their obligation to ensure the effective operation of a certain regulatory framework. In this case, the Swiss courts were content to rely on two medical expert reports, even though there was a third that supported a certain degree of responsibility on the part of the driver. The attribution of liability could not be accepted on the basis of the results of the third expert report, which suggested that the driver had fallen asleep during the accident.

The second grievance is based on the inadequate internal regulatory framework for road traffic. The latter is not sufficiently dissuasive and rigorous to ensure the effective prevention of unlawful acts. The Swiss legal system does not provide for a ban on driving under certain conditions. Moreover, the applicant complains that the murder in this case has gone unpunished. Neither penalties nor measures had been taken against the perpetrator for taking medication. The effects of these drugs, however, included a significant reduction in cognitive performance and drowsiness. Although the driver represented a potential danger to road safety, it was considered that he had not breached his duty of care. However, Swiss case law assumes that the alleged offender was negligent if he failed to take the care and make the effort that could be expected of him to comply with his duties under the rules of law enacted to ensure safety and prevent accidents (Federal Court ruling of 02.08.2016, 6B 965/2014, recital 3).

The final complaint relates to Article 6 of the Convention, which concerns "the right to a fair hearing by an impartial and independent tribunal". The applicant complained that the domestic courts had not accepted new assessments of the body of evidence provided in one of the defendant's medical reports. As a result, her defence was placed at a disadvantage as regards the examination of evidence established by medical reports. The rules on the admissibility of expert opinions or evidence must not deprive the defence of the possibility of challenging them effectively, in particular by submitting or obtaining other opinions and reports. The case-law concerning Article 6 § 1 ECHR regards as a violation the refusal to authorise an alternative expert examination of material evidence (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, §§ 38 et seq., 5 April 2007).

Nulla poena sine lege, as Article 7 of the ECHR states. In Switzerland, the absence of a provision condemning certain conduct does not mean that the same conduct should go unpunished. In this case, article 117 of the Swiss Criminal Code specifically criminalises homicide. The offence is certainly serious and there is no reason why it should go unpunished.

As a last resort, the mother appealed to the ECtHR to determine whether the driver was criminally liable.

Pending the decision of the Strasbourg judges, it is to be hoped that this case before the ECtHR will lead to clarification of the allocation of penalties to acts that should be punishable under criminal law.

Campos Kelly, Jayo Paul, Mariotti Maeva and Pelletier Eloïse