ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 29.04.1988"БЕЛИЛОС (belilos) ПРОТИВ ШВЕЙЦАРИИ" [рус. (извлечение), англ.]

im Hinblick auf das schweizerische Strafprozessrecht, RDS 94/1975 I, p. 498, nos. 119 - 122), since the appeal which lies is not "a mere cassation procedure" (J. Raymond, op. cit., pp. 68 - 69, No. 81). Moreover, where the Cantonal Cassation Division quashes a decision because there are serious doubts as to the facts found (section 43(e) MDA), it may request the municipal authority, to which it remits the case (section 52 MDA), to carry out additional investigative measures. That in itself is sufficient to show that the ultimate control by the judiciary of municipal decisions in the Canton of Vaud is in conformity with Article 6 § 1 (art. 6-1) ECHR, as interpreted in accordance with the declaration made by Switzerland. The view advanced by P. Bischofberger, who appears to argue that ultimate judicial control should cover both the law and the facts (Die Verfahrensgarantien der {Europaischen} Konvention zum Schutze der Menschenrechte und Grundfreiheiten (Art. 5 und 6) (art. 5, art. 6) in ihrer Einwirkung auf das schweizerische Strafprozessrecht, {Zurich} thesis 1972, pp. 50 - 51), is not justified in view of the meaning of the Federal Council"s interpretative declaration, although it would be desirable for offences of the kind at issue to be tried by a criminal court.
Moreover, the appellant did not claim that the judicial review of the instant case by the Cassation Division of the Cantonal Court was open to criticism regarding its examination of the lawfulness of the Police Board"s decision of 4 September 1981." (Judgments of the Swiss Federal Court, vol. 108, Ia, pp. 313 - 316)
II. The Police Board in Vaud cantonal law
16. In the Canton of Vaud, municipalities can delegate responsibility for prosecuting and punishing minor offences to one or three municipal councillors or, where the population is over ten thousand, to a specialist civil servant or a senior police officer (section 12 of the Municipal Decisions Act of 17 November 1969 - "the 1969 Act").
17. In Lausanne the Police Board consists of a single municipal civil servant. He is a sworn official and as such "must discharge his duties in person, diligently, conscientiously and loyally" (Regulation 10 of the Local Government Staff Regulations). He can withdraw from the case of his own accord or be challenged (section 12 of the 1969 Act).
1. Powers
18. The Police Board can only impose fines (section 5 of the 1969 Act), and these cannot exceed 200 CHF for a first offence or 500 CHF for a subsequent offence. It is empowered to order the offender ("{denonce}") to pay expenses (sections 5 and 34) but has no power to award damages or costs against him (section 5).
19. In 1986, the Lausanne Police Board decided 22,761 individual cases. Traffic offences - mainly parking offences - accounted for 91% of these.
2. Procedure
20. If the Police Board considers that the facts have been established and that the available information about the personal situation of the offender is sufficient, it may take its decision without summoning the person concerned to appear before it (section 24 of the 1969 Act).
Where a hearing is held, the offender is entitled to consult the file beforehand (section 23). He normally appears in person at the hearing but may send a representative if he is expressly exempted from attending in person (section 29).
21. The procedure for inquiring into the facts is laid down in section 30, which reads as follows:
"The municipal authority shall hear the offender and, where appropriate, the person who has laid the information against him.
Such parts of the police report as concern the offender shall be made known to him or to the person representing or assisting him.
If the facts are disputed, the municipal authority shall carry out the necessary verification, in particular by taking evidence from witnesses it has summoned or sends for or whom the offender brings before it; it may visit the locus.
Where necessary, it shall call upon the services of an interpreter.
For the rest, the municipal authority shall reach its own conclusion as to the accuracy of the facts set out in the report."
22. The Police Board"s decision is delivered immediately; if convicted, the offender is informed of his right of appeal (section 31), and the Board"s decision is subsequently notified to him in writing.
23. A convicted offender may apply to have the conviction set aside (opposition) if, as in the instant case, he was not summoned to appear at a hearing or was tried in absentia (section 36). In such cases the original decision ceases to have validity (section 39) and the Police Board reopens the proceedings by summoning the person concerned to a hearing.
3. Forms of appeal
24. Criminal law in the Canton of Vaud does not allow for an ordinary appeal (appel) against Police Board decisions but does make provision for two types of application to the Cassation Division of the Cantonal Court, in addition to the possibility of applying to have the decision set aside.
The first type - of which Mrs. Belilos availed herself (see paragraph 13 above) - is provided for in section 43 of the 1969 Act:
"An application for a declaration of nullity (recours en {nullite}) may be made on grounds of the following procedural irregularities:
(a) where the municipal authority has made a determination of fact in respect of which it had no statutory competence

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