VERDICT
In the criminal case
of Mr. xxx,
for resisting law enforcement officers
The 7th Small Criminal Chamber of the Regional Court in Braunschweig, upon the defendant's appeal against the judgment of the Braunschweig Local Court of June 21, 2016, in the session of November 9, 2016, in which the following participated:
Presiding Judge of the Regional Court xxx
as Chairwoman
xxx
xxx
as Lay Judges
First State Prosecutor xxx as an official of the Public Prosecutor's Office
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen, as defense counsel
Chief Justice Secretary xxx, as certifying officer of the registry for legal matters, recognized:
Upon the defendant's appeal, the judgment of the Braunschweig District Court of 21 June 2016, 2 Cs 701 Js 63086/15, is set aside.
The defendant is acquitted.
The state treasury bears the costs of the proceedings and the necessary expenses of the defendant.
REASONS
– abbreviated as per §§ 332, 267 para. 4 of the Code of Criminal Procedure –
A.
The defendant was convicted by the Braunschweig District Court on June 21, 2016, of resisting law enforcement officers and sentenced to a fine of 30 daily rates of €50 each. The defendant filed a timely and formally correct appeal against this judgment, seeking acquittal. The defendant's appeal was successful. The defendant was acquitted on factual grounds.
B.
I.
The defendant was charged by penal order of the Braunschweig District Court dated December 29, 2015, with having committed an offense under Section 113 of the German Criminal Code (StGB) in Braunschweig on October 26, 2015, at approximately 9:15 p.m. When Police Officer xxx asked him to provide his personal details during the Bragida counter-demonstration in order to establish a possible offense under the Assembly Act, he allegedly refused to comply and attempted to leave. To prevent this, Police Officer xxx grabbed him by his outer clothing, whereupon the defendant jerked around and tried to break free. Due to his continued resistance, he was restrained on the ground, which he again attempted to prevent by pulling his arms under his body and rolling around on the ground.
II.
The court found the following, deviating from the above:
On the evening of October 26, 2015, the defendant participated in the spontaneous Bragida counter-demonstration in Braunschweig. At approximately 9:00 p.m., the defendant was on Dankwardstraße with other counter-demonstrators. Several participants in the counter-demonstration, including the defendant, blocked the route of the registered Bragida demonstration by linking arms and by holding a yellow banner directly in front of the heads of the police horses. The defendant was among those holding the banner on the left side of the road. The police made an announcement via loudspeakers stating that the counter-demonstrators were committing offenses such as violating the Assembly Act or breaching the peace, and that they would begin removing individuals from the crowd. However, this did not occur. The police then pushed the participants of the Bragida counter-demonstration back to Bohlweg. However, the Bragida demonstration was blocked again, and the defendant participated on the side of the counter-demonstrators. The police issued another announcement stating that the counter-demonstrators' behavior was a criminal offense.
It was ultimately decided that the Bragida demonstration could not continue its march to Bohlweg and had to return to Dankwardstraße. The counter-demonstrators followed the departing Bragida demonstration back to Dankwardstraße. At approximately 9:20 p.m., a firecracker was thrown from the crowd of counter-demonstrators toward the police officers who were positioned between the counter-demonstrators and the departing Bragida demonstrators. There is no suspicion that the defendant had anything to do with the throwing of the firecracker. The firecracker detonated with a very loud bang. The detonation created a large gap between the police officers and the counter-demonstrators. At that moment, the defendant was standing alone in the front row directly in front of Police Officer xxx. The defendant had raised his right arm, gesturing. The defendant also took a step toward Police Officer xxx. Officer xxx recognized the defendant as one of the individuals who had previously been among the counter-demonstrators and decided to detain him for identification purposes. Officer xxx grabbed the defendant by the upper arm of his jacket, whereupon the defendant abruptly twisted out of the officer's grasp and briefly evaded capture. Officer xxx then came to the aid of his colleague, Officer xxx, and grabbed the defendant. Officer xxx also arrived, and together they managed to restrain the defendant and bring him to the ground. The defendant attempted to resist being pinned to the ground by pulling his arms under his torso, trying to prevent his hands from being held behind his back. With considerable force, the two officers finally succeeded in securing the defendant's arms behind his back. The defendant stated that he had lost his glasses and that he couldn't breathe, whereupon the officers loosened their grip slightly. The defendant continued to resist being restrained. Finally, Officers xxx and xxxx helped the defendant to his feet and intended to escort him on foot to the police station on Münzstraße. After only a few steps, however, the defendant collapsed to the ground again. The officers then decided to apply steel handcuffs. Lying on the ground, the defendant resisted having the handcuffs applied and refused to relax his arms behind his back, even after repeated requests. Only by using renewed force and considerable effort were Officers xxx able to apply the steel handcuffs. The officers helped the defendant to his feet once more and escorted him on foot to the police station on Münzstraße. To secure him, the two officers held the defendant in a cross-cuff hold on his left and right sides. Throughout the entire transport, the defendant remained calm and cooperative.
Only in the courtyard of the Central Police Station was the defendant informed of the charges of violating the Assembly Act and resisting arrest by Police Officer xxx, who was present throughout the entire arrest. He was then informed of his rights and searched. At approximately 9:40 p.m., after his identity was established on site, the defendant was released.
C.
The Chamber bases its findings on the police video of the Bragida counter-demonstration, which was examined and shows in particular the arrest of the defendant, and on the private video recorded with a mobile phone of the seconds after the firecracker explosion and the subsequent behavior of the defendant, as well as on the supplementary statements of witness xxx.
The court did not believe the statements of witness POK xxx that he had warned the defendant a total of three times, nor the statement of witness PK xxx that he had warned the defendant once more while he was on the ground. These statements do not correspond with the videos reviewed. Neither video shows or records POK xxx speaking to the defendant before arresting him, nor does it show that he had any time to warn him before grabbing his arm. Even while the defendant was being restrained on the ground, no such warning from POK xxx can be heard in the police video, whereas the defendant can clearly be heard pointing out to the police officers that he had lost his glasses. Furthermore, no other witness corroborated that POK xxx had warned the defendant while arresting him or while he was on the ground, even though PK xxx and PK xxx were directly above the defendant, whom they were restraining, and therefore, in the court's opinion, should have been able to hear their colleague speaking to the defendant. The witness's claim that Officer xxx also gave the defendant additional instructions while he was pinning him to the ground was first presented during the appeal hearing. Such an instruction is not found in any of the police reports and was not mentioned by any of the police officers during the initial trial. This testimony is therefore striking in its inconsistency and contradiction. Furthermore, Officer xxx's memory is at least impaired, if not entirely distorted, as evidenced by his assertion that the defendant violently resisted the restraints and cross-cuffs with his upper body and arms throughout the entire transport to the station. In contrast, the police video clearly shows the defendant allowing himself to be taken to the Central Police Station without resistance, a fact also observed by witness xxx.
In view of the finality of the judgment, no further evaluation of the evidence was undertaken.
D.
The defendant's conduct does not fulfill the elements of the offense under Section 113 of the German Criminal Code.
An act is not punishable as resistance against law enforcement officers under Section 113 Paragraph 3 Sentence 1 of the German Criminal Code (StGB) if the official act against which the resistance is directed is unlawful. In this context, a criminal law concept of lawfulness applies that does not coincide with the substantive law concept, but rather focuses not on the correctness of the official act itself, but solely on its formal lawfulness. This includes the existence of a legal basis for intervention, the material and territorial jurisdiction of the acting officer to intervene, the compliance with statutory formalities where prescribed, the order given by the competent superior, and, insofar as the officer acts at their own discretion, the proper exercise of that discretion (cf. BGHSt 21, 363; Fischer, StGB 63rd ed. § 113 Rn. 11 ff. with further references).
Since the legal basis for police intervention can generally arise from provisions of criminal procedure or from regulations for the prevention of danger (cf. Fischer, loc. cit., para. 13), the findings of fact in the judgment must not only identify the type of official act against which the defendant resisted, but also make specific findings regarding its purpose, execution, and the accompanying circumstances (KG decision of November 30, 2005, 1 Ss 321/05; OLG Munich decision of December 8, 2008, 5 St RR 233/08; both available at juris).
According to the established facts of the judgment, the acts of resistance occurred seconds after the detonation of the firecracker in the immediate vicinity of police officer xxx, when the defendant actively approached a line of several police officers with his arm raised. The officers then attempted to check the defendant's identity and establish his personal details. This suggests that the purpose of establishing his identity was not to investigate the earlier violation of the Assembly Act, which had been announced by the police via loudspeaker, but rather to clarify the throwing of the firecracker towards the police officers. The legal basis for this would therefore be found in Section 163b Paragraph 1 of the German Criminal Code (StGB). However, the findings also indicate that establishing his identity pursuant to Section 13 of the Lower Saxony Public Safety and Order Act (Nds. SOG) would be appropriate in order to prevent offenses against the defendant, who was actively approaching the police officers. Since the purpose of the measure cannot be clearly categorized as either preventive or repressive from an external perspective, and therefore also from the defendant's point of view, the focus of the measure must be considered (Higher Regional Court of Munich, loc. cit.). This was after the
The overall context of the findings, at least in the area of criminal prosecution, is significant, especially since all three police officers questioned themselves assumed that the defendant's identity would be established for the purpose of criminal prosecution and, according to their own statements, intended to do so.
However, according to Section 163b Paragraph 1 Sentence 2 in conjunction with Section 163a Paragraph 4 of the German Code of Criminal Procedure (StPO), a crucial formality in criminal procedural identification measures is the disclosure of the suspicion of a crime to the suspect, unless the reason is obvious or the purpose of the measure would be jeopardized; if this essential formal requirement is lacking, without an exceptional case existing, the official act carried out to establish identity is not lawful (OLG Munich, loc. cit.; KG StV 2001, 260; OLG Düsseldorf, NJW 1991, 580).
The reason for the police officers' actions against him, particularly the identity check, was not obvious to the defendant. At the moment of his arrest by Police Officer xxx, it was not apparent that this was to establish his identity due to a violation of the Assembly Act. An identity check based on suspicion of throwing a firecracker would also have been conceivable. Furthermore, a precautionary measure by the police officer could also be considered, as he anticipated an attack or physical assault by the defendant due to the tense atmosphere and the defendant's proactive approach.
In the present case, however, the defendant was not properly informed of his rights before being apprehended by Police Officer xxx. Nor was such an instruction given while the defendant was being restrained on the ground and transported to the Central Police Station, meaning the defendant was entitled to resist the police measures. The court is convinced that, as documented in the police video, the defendant was only properly informed of the reason for the police action and his right to remain silent once he was in the courtyard of the Central Police Station, i.e., at a time when the defendant's resistance had long since ceased.
Since the formal legality of the identity check itself is therefore not established, this applies all the more to the provisional arrest carried out to enforce it.
E.
The decision on costs follows from Section 467 Paragraph 1 of the Code of Criminal Procedure.
