DECISION
In the juvenile criminal case
Regarding xxx,
born on xxx,
German citizen
residing at xxx,
Defense counsel: Attorney Sven Adam,
Lange Geismarstr. 55, 37073 Göttingen
The 6th Grand Chamber for Juvenile Cases of the Aachen Regional Court, on the immediate appeal against the decision of the Düren Local Court of 22 October 2019 – file number: 10 Cs 380/19 –
on 11 November 2019
:
The immediate appeal of the public prosecutor's office of 25 October 2019 is dismissed as unfounded at the expense of the public treasury (§ 473 para. 2 StPO).
Reasons:
The immediate appeal is unfounded. The local court was correct in rejecting the issuance of a penal order against the accused in the contested decision.
The Chamber concurs with the sound reasoning of the decision challenged by the appeal. The grounds for appeal do not justify a more favorable decision.
The local court, with well-founded reasons, took the position that, in the present case category of so-called anticipatory resistance, in which, at the time of the enforcement action, a situation already created with regard to hindering or frustrating the pending enforcement action is merely exploited without further action, (in essence) a significant impediment to the enforcement action is required in order to comply with the principle of legal certainty for criminal law norms derived from Article 103 Paragraph 2 of the Basic Law, in interpreting the element of "violence".
Resisting by force within the meaning of Section 113 of the German Criminal Code (StGB) is the use of material coercive means, especially physical force, through active conduct against the person of the enforcing officer; which is capable of at least hindering the completion of the official act (cf. Fischer, StGB, 66th edition 2019, Section 113, marginal note 23).
The local court convincingly argued that the prior tying of the accused to a pile of branches with a cable tie did not constitute force within the meaning of the law: since the removal of the obstacle by the police officers in the form of cutting the cable tie within a few seconds could not have impeded the enforcement action, namely the provision of assistance in the legally required clearing of the premises. It should be noted that the police could easily cut the cable tie. Unlike in comparable cases of anticipatory resistance, in which the courts have assumed an act of resistance, the use of special tools that would have significantly delayed the enforcement action was not required here (cf., for example, Higher Regional Court of Stuttgart, judgment of July 30, 2015 – 2 Ss 9/15 –, juris); rather, the police could simply use side cutters they carried with them. The court assumes that police officers usually carry tools (side cutters, knife, scissors, etc.) to cut a cable tie, but certainly in the context of a large-scale operation for clearing an area – as is the case here.
Contrary to the grounds for appeal, such an interpretation of the facts is already supported by previous case law. For example, the Higher Regional Court of Celle rejected the existence of an act of resistance, as the defendant's behavior only insignificantly hindered the execution of the official act (see Higher Regional Court of Celle, judgment of May 9, 1989 – 1 Ss 79/89 juris). That judgment was based on the fact that the defendant locked the vehicle door from the inside when a police officer approached, but unlocked it a short time later upon the officer's express request. While the defendant voluntarily removed the obstruction to the official act in that case, in the present case, it is evident from the available video footage that the accused was incapable of freeing himself from the situation he had created. However, the decisive factor is not the voluntary removal of the obstruction, but rather a comprehensive factual assessment of the overall impact of the behavior on the official act. In cases where enforcement officers are hardly confronted with any physical force, the decisive factor will be the suitability of the act of resistance to cause a not insignificant delay in the official action, which – as in this case – cannot be affirmed given that only a few seconds were required for the removal and that the accused otherwise behaved cooperatively.
