Momme Rasmussen

Georg-August-Universität Göttingen

It was the beginning of 2017, when a verdict in Germany attracted a lot of attention, not only inside the legal community but also in the general public.

On February 1st of 2016, two men, aged 24 and 26, were speeding through the center of Berlin, it was around midnight. They both belonged to the “speeder scene”. A scene which is known for young mans, who are performing illegal street races throughout the city.

The two men, were having a spontaneous private street race in their sport cars on one of the main streets of Berlin. They ignored speed limits, eleven red traffic lights and the most important rule of the German Traffic Code: ‘Participation in road traffic requires caution and mutual considerateness at all times’. Both cars drove around 160 km/h (LG Berlin, 535 Ks 8/16), although only 50 km/h are allowed inside cities. One of the drivers collided with another, innocent, car at a crossing. The car of the innocent driver, who had green light, was tossed around 70m through the air to the other side of the street. The 69-year-old driver died at the place of the accident. Furthermore, one of the cars dashed against the other street racers care and was then stopped by a street boundary. The second racer car destroyed a traffic light and dashed multiple times against the street boundary. Car parts flew around and nearly hit innocent pedestrians, who were standing less than 50 meters away. In the verdict, the court states that the accident caused a situation similar to a ‘battlefield’ with an extent of 60 to 70 meters.

Usually such deadly accidents, which are connected to speeding or even some kind of speeding “event” are sentenced under negligent manslaughter and therefore were sentenced to imprisonment not exceeding five years. But in this case the responsibly Berlin District Court (Landgericht) convicted the two men to life imprisonment because the judges found them guilty of murder (NStZ 2017, 471). Although the verdict is not final yet, it has taken the discussion about how to penalize these deadly races to a higher level.

Section 211 subsection 2 of the German Criminal Code, the Strafgesetzbuch (StGB), defines murder as killing a person and thereby fulfilling at least one of the following nine criteria that distinguish murder from manslaughter: killing for pleasure, for sexual gratification, out of greed or other inferior motives, insidiously, cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another criminal offence.

A person was killed in the accident. The second qualification is more difficult in this regard. The court affirmed the criterion ‘killing by means that pose a danger to the public’. Such are defined as means used by the perpetrator that are capable of endangering the physical integrity or the lives of multiple human beings in a particular crime situation due to the fact that that the perpetrator cannot control the extent of the danger (NStZ 2017, 477). The important aspect here is the uncontrollability of the danger by the perpetrator. Not only the abstract dangerousness of the particular means has to be taken into account, but also its suitability and its effect in the specific situation with regard to the personal skills and intentions of the perpetrator. Although driving a car per se is not a fulfillment of the criteria, in this case the number of endangered people is not calculable for the perpetrator and he cannot control how many people as representatives of the public could die because of entering the area of danger he caused, then the qualification criteria for murder ‘by means that pose a danger to the public’ is fulfilled (NStZ 2017, 477). The court argues now that it is due to pure coincidence that no one else got seriously injured or killed. Taking into account the speed of 160km/h which the car that collided with the Jeep had reached just before the accident and the possible traffic with busses, taxis, private vehicles and also pedestrians still participating in the traffic, the court came to the conclusion that the accused caused a situation of danger for a non-calculable group of people. The two drivers were not capable of controlling the situation and did not have any influence on how many people were endangered.

The second debatable aspect of the verdict is the question if the accused ones acted with intention or just negligent. For sure, both men did not act with a direct intent (dolus directus) regarding the killing. So, the discussion is regarding the separation of conditional intent (dolus eventualis), and willful negligence. According to the constant jurisdiction of the BGH, the perpetrator, whose action is willfully negligent, firstly realizes a consequence of his action as possible but secondly, he sincerely trusts in a good outcome (4 StR 84/15; BGH NStZ-RR 2016, 79, 80). By contrast, the perpetrator acting with dolus eventualis firstly realizes the possibility of the consequence and secondly accepts it, resigns himself to it or it is indifferent to him. In addition to that, a line must be drawn between the cognitive and the voluntative element, i.e. between the element of knowledge and the element of intention (BGHSt 7, 363; NStZ-RR 2016, 79 (80)).

Regarding the cognitive element, the court argues that both men were already convicted in the past for traffic related infringements and held the street race in this case for purpose of self-affirmation and demonstration of their own driving skills and of the power of their vehicle. They ignored 11 red traffic lights and all other traffic rules. Moreover, the risk of killing other people was really high due to the extremely dangerous behavior, especially since the traffic volume was still relatively considerable, according to the witnesses. Such behavior is, obvious for everybody, able to might have deadly consequences, also for the metal healthy accused. In conclusion, the court assumed that the accused indeed realized the dangerousness of their behavior. Therefore, in the eyes of the court, the cognitive element of the dolus eventualis is fulfilled. Concerning the voluntative element of the dolus eventualis, the court is the opinion that the accused acted indifferent despite realizing the possibility of deadly consequences and that they were willing to accept these. They left it to chance whether or not a car that is shown green light would cross the street and whether the car driver would survive a crash or not. The accused did not do anything to prevent the accident (tried not to brake or to evade the crash).

This affirmation of dolus eventualis was widely discussed among professionals and the general public (NJW 2017, 1350; NStZ 2017, 439; JuS 2017, 700; JA 2017, 786). The verdict can still be changed by the Federal Supreme Court (BGH), but until now, no verdict is spoken by the BGH. Also, a change of some laws is discussed and a draft is already prepared. Until now, illegal street racing is only an administrative offence punished by a fee (€400) and one month driving ban. If the draft will be passed, street racers could be convicted with imprisonment up to 2 years, if innocent people are in danger, an imprisonment up to 5 years should be possible and if a person is killed or suffers mayor injuries, imprisonment up to 10 years should be possible. Furthermore, the cars could be seized for a longer time by the police14.