Legal problems could arise with the Cham car-free centre

The cantonal government has answered questions from Cham's cantonal councillors regarding the planned traffic management system. And it has become clear that several legal issues remain unresolved.
 

Rows of cars slowly creeping along the main road in Cham. Hundreds of red lights, and exhaust fumes rising into the sky. For many years, this scene has characterised the evening hours in the ‘village centre’ of Cham. A scene that should no longer exist once the Cham-Hünenberg bypass, or UCH for short (Umfahrung Cham Hünenberg), has been completed.

Various so-called "accompanying measures" are intended to ensure that the bypass is actually used, and that it thereby relieves the traffic congestion in the village centre. The specific plan for the car-free centre (AAZ: Autoarme Zentrum) is as follows: at five "portals”, vehicle licence plates will be photographed on entry. If a vehicle leaves the village centre again within ten minutes via another portal, it will be assumed to have used the road for through traffic – which is prohibited. The fine for this ‘transgression’ is CHF 100.

The new traffic regulations are to be introduced in conjunction with the opening of the UCH in the summer of 2027.

There is insufficient legal basis
At the beginning of February, all the members of the cantonal parliament (Kantonsrat) representing the municipality of Cham, namely Anne Hänel (ALG), Erich Grob (Mitte party), Fabienne Michel (GLP), Jill Nussbaumer (FDP), Michèle Schmid (SP), and Hans Jörg Villiger (SVP), jointly submitted a parliamentary enquiry to the cantonal government. In it, they also referred to the municipality of Birsfelden (BL), where a similar system has already been implemented. According to an article in the "Blick" newspaper, the Federal Roads Office (ASTRA) has expressed doubts as to whether this system is legally permissible. There were thousands of fines issued in the first days of operation in Birsfelden, many of which have now been challenged legally.

The same consideration applies to the proposed system in Cham, as can be seen from the response of the cantonal government to the parliamentary inquiry. In its statement regarding the proposed model, the Federal Roads Office (ASTRA) stated that there is "no sufficient legal basis" to permit such image-capture systems. Legal issues could arise with regard to data protection and the admissibility of evidence. Specifically, if the recorded images are to be admissible as evidence in summary penalty proceedings (Ordnungsbussenverfahren), the recording systems would first have to be included in the Ordinance on Measuring Instruments (Messmittelverordnung).

Traffic in Cham should no longer look like this       Photo: Matthias Jurt
 

The cantonal government (Regierungsrat) counters ASTRA's arguments by stating that the system could still be implemented by issuing fines through ordinary criminal proceedings (ordentlichen Strafverfahren), rather than summary penalty proceedings (see below). With regard to the legal basis, a regulation entitled "Automated Traffic Control" has been included in the ongoing partial revision of the Zug Police Act. The responses from the external consultation process are currently being evaluated.

In the planned portal system in Cham, the data would be processed further by the Zug Police if a violation has occurred. If no violation has taken place, the data would be deleted after ten minutes. People would not be photographed, as only the rear of the vehicle and its licence plate would be photographed.

Less intrusive measures are not practical
In its response to the parliamentary enquiry, the cantonal government further states that the Federal Roads Office (ASTRA) has expressed concerns as to whether an image capture system is necessary at all. The Federal Office for Roads believes that the signage for driving bans is generally well observed, and can also be verified by means of random checks, or checks carried out specifically by the police.

The cantonal government counters by claiming that "less intrusive measures for enforcing the driving ban" have already been examined. A similar case in the canton of Aargau shows that it is "not practical" for police officers to follow potential traffic offenders in unmarked cars. The same applies to on-site police checks, as "a police officer would have to stand at each portal, record all the vehicle data, and then manually calculate the transit times." This would be "an immense expenditure of time and personnel," concludes the Zug executive branch.

Two different procedures
The summary penalty procedure is a simple, standardised procedure for minor traffic violations, in which the fine is imposed directly without extensive investigation. Ordinary criminal proceedings are more complex, as cases are examined individually, evidence is evaluated, and, in cases of doubt, a court decides the matter.

Editor’s comment.
Does the suggestion that fines could be issued via criminal proceedings mean that anyone driving through Cham in less than 10 minutes will automatically become a ‘ criminal’, and will then have a criminal record that will be registered with the police, the immigration authorities and various other official bodies? This would then have negative consequences with regard to employment, migration status and police matters. And a criminal procedure would also involve administrative costs – which currently run at around CHF 250.00.

And all this to relieve congestion in Cham, which is caused by five major routes (to Lucerne, Zug, Sins, Knonau and Steinhausen) meeting in the centre of Cham, with the current alternative route (the motorway) being located too far away. And the UCH is running parallel to this motorway. 
And while there are legal questions about the use of a recording system, there is also the question of making public roads, which are financed by motorists, being made unavailable to the same motorists. And what about the residents of Cham?
Can we expect the same system to be also imposed in Hünenberg at some later date?
The local politicians who have suggested this “solution” may well have to answer for their decisions at the next elections!