Judgment concerning Switzerland
In the case of Nejjar v. Switzerland the Court held that there had been a violation of the right of access to a court.
The case concerned the applicant’s challenge to a summary penalty order from the public prosecutor’s office imposing a fine on her. She complained that, on account of her absence from the hearing before the Police Court, her application to that end had been regarded as withdrawn.
The Court held that the procedure for summary penalty orders provided for in Articles 352 et seq. of the Code of Criminal Procedure was not incompatible with the right to a court, for the purposes of the Convention. In the case at hand, however, the use of the legal fiction that the application had been withdrawn under Article 356 § 4 of the same Code had disproportionately restricted the applicant’s ability to exercise that right.
In particular, the Court noted that the use of that legal fiction had amounted to an indisputable presumption that the applicant had withdrawn her application, despite the fact that it had been clear that she had intended to pursue the matter and obtain a judicial examination of the criminal charges against her.