The famous "not seen, not taken" principle
The famous "not seen, not taken" principle
I am following up on your column published on 9 April 2018 in which you explained that it is forbidden to cross a white line and this even for the purpose of overtaking a bicycle. The road from Vich to Begnins has a two-kilometre climb that includes a safety line. Motorists and post buses regularly cross this line to overtake cyclists. Is this behaviour really punishable?
Eric, Vaud
According to the famous principle of "not seen, not taken", it is obvious that not all road traffic offences are punished. Before deducing that the police might turn a blind eye in certain cases like the one you mention, however, it should be remembered that under article 302 of the Swiss Code of Criminal Procedure, the criminal authorities are obliged to report all offences that they have observed in the performance of their duties or that have been reported to them if they are not themselves competent to prosecute. This duty to report applies equally to felonies and misdemeanours as it does to misdemeanours. As in all cantons, Vaud police officers must promise to perform their duties conscientiously, diligently, faithfully and in strict compliance with the law.
However, there is a legal possibility of exemption from punishment when the offence is committed for what are known as justificatory reasons. These grounds include the state of necessity provided for in article 17 of the Criminal Code, which states that a punishable act committed to preserve a person or property from an imminent danger that cannot otherwise be averted may be considered lawful if the act serves to safeguard overriding interests.
This type of justification is only accepted very restrictively in case law concerning road traffic offences. It was accepted, for example, in the case of a father who had speeded excessively on his way to hospital when his newborn baby was suffering from serious respiratory problems requiring a rapid decision and his presence. On the other hand, it was denied in the case of a driver who crossed a safety line to protect his tyres from the supposed presence of bottles on the road. You will therefore have understood that there is no sufficient reason to justify exemption from a penalty when a motorist encroaches on a white line to overtake a cyclist purely for personal speeding convenience.
That said, the Vaud Roads Act specifies that road layouts must take account of safety and traffic flow requirements; it is therefore up to the political authorities to take the necessary measures to resolve such problems.
