Maximilian Matthiesen

 

Are speeders murderers? – German courts had to deal with this question in 2017 and 2018.

The facts of the so-called “Berliner Raser” trial are as follows.

One day, shortly after midnight, both defendants randomly stood with their cars at a red traffic light on Berlin’s Kurfürstendamm. There, after brief bravado, the two agreed to a so-called “stabbing”, i.e. an illegal street race. When the traffic light turned green, both gave full throttle. After one of the two stopped first at two red traffic lights, both raced through 20 crossroads or junctions and 13 traffic lights in the middle of Berlin city centre, regardless of whether the traffic lights were red or green. During the race, the cars reached speeds of up to 170 km/h. The race finally ended as the uninvolved victim of the race himself with his car, justifiably so – whose traffic light was on green, entered a crossroad and was rammed by one of the two speeders, whereupon the victim’s car, a Jeep, was hurled about 70m through the air before it landed in front of the entrance of the KaDeWe. The vehicles of the racers collided after the impact first with each other, and thereupon with a bordering for raised planting beds from granite. The victim died in his car, while the two speeders remained largely unharmed.

One witness was severely injured by flying debris.

If the maximum permitted speed of 50 km/h had been observed, both defendants could have prevented a collision.

In Germany, according to §211 II StGB, a murderer is someone who kills a person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence Therefore, the person who kills another person and additionally fulfils a special objective or subjective element of the offence and accepts this at least with dolus eventualis approvingly is a murderer.

Let’s work out the answer to the question of whether speeders are murderers, instance by instance.

In the first instance, the LG Berlin sentenced the defendants for murder by means that pose a danger to the public, §211 II Alt. 7 StGB, in fact unit, §52 StGB, with dangerous bodily injury, §223 I224 I No. 2, 5 StGB, and deliberate endangerment of road traffic, §315c I No. 2 lit. a, d StGB to life imprisonment.

In the opinion of the LG Berlin the accused acted complicity in the sense of §25 II StGB and with conditional killing intention.

The complicity of the two defendants is based on the agreement to an illegal road race. The joint determination of the driving sequence and the joint taking and setting of risks would lead to a joint decision on the offence and its joint implementation.

The LG Berlin assumes a killing by means that pose a danger to the public. A means therefore poses a danger to the public if it is suitable in the concrete situation to endanger the life and limb of a plurality of persons and the offender does not have the extent of the danger under control. The basis is the recklessness of the offender, who tries to achieve his goal by creating an unpredictable danger for others. For the common danger it is irrelevant whether an abstract danger originates from the means, it is sufficient that this danger is given in the concrete fact situation. It is also irrelevant whether many fatalities are caused by the means of public danger. In addition, the offender must have included this in his intent.

In the present case, the LG Berlin justifies the public danger of the means of committing an offence based on the extent of the ‘battlefield’. The Jeep, debris of the cars involved and parts of the bordering for raised planting beds were hurled 60-70m through the air, furthermore a traffic light on the median strip was felled. This affected a majority of people, directly the victim as well as indirectly the surrounding witnesses, all of whom could have suffered life-threatening injuries. In particular, the offenders were no longer able to control the extent of the danger due to the significantly increased speed.

Ultimately, the LG Berlin also affirms the existence of a conditional intent instead of only deliberate negligence. The difference between these two subjective characteristics is that the deliberately negligent offender does not agree with the possible occurrence of success and relies on its non-occurrence, whereas the conditionally intentional offender agrees with the occurrence of success to the extent that he approvingly accepts it. In particular, indifference towards the death of the victim, which was not intended but was accepted, should be sufficient.

The present case also cannot be compared with other cases which have led to a conviction for negligence, since these cases concerned individual offenders, adolescents, persons unencumbered by traffic law and “only” speeds of around 100 km/h.  However, all this does not apply to the defendants and this case. The defendants used their vehicles in road traffic at will and this, on the one hand, as a means that pose a danger to the public through their ruthless driving style and, on the other, as a means of coercing other road users to slow down or impose their speed.

However, the defendants appealed against the decision, so that the BGH now had to decide on the question of whether speeders are murderers. The BGH granted the appeal on 1 March 2018 and thus overturned the first murder ruling against speeders in Germany.

A conviction of the person uninvolved in the accident himself as an accomplice is unfounded, since a joint decision to commit the offence had to be taken and executed jointly. The agreement to an illegal road race is not sufficient for the assumption that a joint decision to commit an offence also refers to the conditional deliberate killing of another road user.

Furthermore, the defendants could not be accused of intent to kill. This already contradicted the established course of events. The offenders had only recognized the success and accepted it with approval when they entered the crossroads. At this time, however, it was impossible for the offenders to react, as the LG Berlin also stated. Consequently, the defendants lacked the necessary intent to kill at the time when the crime was irreversibly set in motion.

Ultimately, the BGH also criticizes other points of the LG Berlin’s assessment of evidence.

Thus, the question of whether speeders are murderers must be answered in the negative according to the current state of German case law. At the same time, however, it has become more obvious under which circumstances a conviction as such would be possible; in particular, the BGH does not contradict the statements of the LG Berlin regarding the killing by means that pose a danger to the public.