VERDICT
2 StR 237/23
of
13 March 2024
in the criminal case
against
1. xxx,
2. xxx,
for dangerous bodily harm, among other things.
The 2nd Criminal Senate of the Federal Court of Justice, in its session of March 13, 2024, with the following participants:
Presiding Judge at the Federal Court of Justice
xxx,
the judges at the Federal Court of Justice
xxx,
xxx,
xxx,
xxx,
Public Prosecutor xxx
as representative of the Federal Prosecutor's Office,
Lawyer Klaus Kunze from Uslar
as defense counsel for the defendant xxx,
Lawyer Wolfram Nahrath from Berlin
as defense counsel for the defendant xxx,
Lawyer Rasmus Kahlen from Göttingen
as representative of the co-plaintiff xxx,
Administrative Inspector xxx
as certifying officer of the registry,
recognized as rightful:
1. Upon the appeals of the public prosecutor and the private prosecutor xxx, the judgment of the Mühlhausen Regional Court of September 15, 2022, is set aside, including its findings.
The case is remanded to a different criminal chamber of the Regional Court, other than the juvenile chamber, for a new trial and decision, including on the costs of the appeals and the necessary expenses incurred by the private prosecutors in the appeal proceedings.
2. The appeal of the defendant xxx is dismissed as unfounded.
The defendant shall bear the costs of his appeal as well as the necessary expenses incurred by the private prosecutors in the appeal proceedings.
By law
REASONS:
The Regional Court found the defendants guilty of joint criminal damage in conjunction with aggravated assault. Defendant xxx was sentenced to one year's imprisonment, suspended on probation. Defendant xxx was ordered to perform 200 hours of community service within six months of the judgment becoming final, as directed by the juvenile probation service. The public prosecutor's office and the private prosecutor xxx have filed appeals against this judgment, each alleging a violation of substantive law, primarily challenging the defendants' failure to be convicted of aggravated robbery. Defendant xxx also raises a substantive appeal. The appeals of the public prosecutor's office and the private prosecutor xxx are successful; the appeal of defendant xxx is unfounded.
I.
- The regional court made the following findings:
On April 29, 2018, the co-plaintiffs xxx and xxx drove to Fretterode, a village with approximately 250 inhabitants where the two defendants lived. The co-plaintiffs assumed that a meeting of so-called neo-Nazis was taking place on the property of defendant xxx's family, a meeting intended to prepare for a demonstration planned for May 1, 2018, in Erfurt. The co-plaintiffs, who consider themselves representatives of the free press, wanted to observe and photograph this alleged meeting. For this purpose, xxx carried a Canon EOS 700 SLR camera. Both positioned their car near the property of defendant xxx's family; over the following hour and a half, xxx photographed, among others, a person whom he recognized as an active member of the NPD (National Democratic Party of Germany).
As the defendant xxx left the property, he noticed the co-plaintiffs' parked car through a gap in a hedge. Based on the license plate, he concluded "that – once again – members of the left-wing Göttingen scene were observing the property." He recognized co-plaintiff xxx, whom he had identified as a participant in the "Göttingen Antifa" at an NPD election event in Göttingen in 2016; at the same time, he suspected that he had been photographed by the co-plaintiff xxx, whom he did not know. When xxx noticed that the defendant xxx was running quickly toward the vehicle, the co-plaintiffs drove off in their car; the defendant jumped aside "to avoid – from his perspective – being hit by the co-plaintiffs' vehicle."
xxx ran back to the property, got into a car and gave chase; he encountered the defendant xxx, told him about the preceding events and asked him to follow the co-plaintiffs together; xxx now drove the vehicle.
Meanwhile, the plaintiffs had driven back to Fretterode in their car, from where the defendants' car was approaching from the opposite direction. Both vehicles stopped approximately 50 meters apart. [Name redacted] opened the driver's side door, thus preventing the plaintiffs from easily passing the defendants' vehicle. [Name redacted] grabbed a metal wrench approximately 50 cm long, disguised himself with a scarf, got out of the car, and ran toward the plaintiffs' vehicle. At the same time, the defendant [Name redacted] pulled a ski mask over his face and also got out of the vehicle, armed with a baseball bat.
The plaintiffs then drove backwards down the road, with xxx photographing the defendant xxx who was following them. Shortly before leaving the town, the plaintiffs' car collided with another car; nevertheless, they turned their vehicle around and left the town at high speed. The defendants followed them in their car and soon caught up with the plaintiffs' vehicle. At times, the vehicles were driving bumper to bumper. Due to traffic, the plaintiff xxx then turned onto the grounds of a pig production facility, which, however, had no rear exit. The defendants' car also blocked about two-thirds of the entrance. The defendant xxx had gotten out of his car, disguised himself, and armed himself with a wrench; he was carrying a small knife and a can of tear gas in his trouser pocket.
A collision occurred when the plaintiffs attempted to drive past the defendants' car. The plaintiffs' vehicle slid to the left into the ditch and could not be moved any further. The defendant xxx, who interpreted the oncoming car as "another attempt to run him over," angrily ran around the plaintiffs' car and smashed the driver's and passenger's side windows with a wrench. At the same time, xxx and the defendant xxx got out of their vehicles. xxx had also masked himself again and first struck the plaintiffs' car with a baseball bat, then went after the plaintiff xxx, who had followed the defendant xxx around the vehicle. xxx grabbed the baseball bat, while the defendant was able to take the wrench that the defendant xxx was holding, which he used to strike xxx, hitting him once in the head. xxx suffered a 5 cm long, heavily bleeding wound on his forehead that reached down to the bone, as well as a skull trauma.
Meanwhile, the defendant xxx repeatedly attempted to open the passenger door of the plaintiffs' car. However, xxx repeatedly managed to close and lock the door. xxx then stabbed through the broken passenger window with a knife he was carrying, which had a blade length of 5 to 10 cm, "multiple times with medium force and in rapid succession into the interior of the car in the direction of the plaintiff xxx, who was sitting in the passenger seat," ultimately inflicting a 1.5 cm long and 1 cm deep bleeding stab wound to the plaintiff's right thigh.
xxx and xxx then ran towards xxx and xxx; the defendant xxx sprayed tear gas in the direction of the victims, hitting xxx. The defendants then ran back to their vehicle and drove off in the direction of Fretterode. A subsequent search of the victims' car was unsuccessful; the victim xxx's SLR camera could not be found.
2. The Regional Court assessed this incident as "joint" property damage in conjunction with dangerous bodily harm pursuant to Section 223 Paragraph 1, Section 224 Paragraph 1 No. 2, No. 5 of the German Criminal Code; however, the established use of tear gas by the defendant xxx was not covered by this "due to the lack of a corresponding indictment".
The regional court also found itself unable to convict the defendants of (especially) aggravated robbery as a single offense. The defendant xxx denied having "stole anything." The court found the statements of the co-plaintiffs lacked the necessary consistency because their testimony during the main hearing, according to which the defendant xxx had taken the co-plaintiff xxx's camera from the car, could not be reconciled with the statements made during the initial questioning by police officer xxx, in which one of the two co-plaintiffs had said that there must be a single-lens reflex camera with a lens in the car. Furthermore, the victims contradicted themselves "on a crucial point," namely regarding which side of the vehicle the defendant xxx had taken the camera from. Finally, "none of the other witnesses" had observed the theft.
II.
Appeals by the public prosecutor and the private prosecutor xxx
1. The appeals of the public prosecutor and the private prosecutor xxx are successful. The Regional Court's evaluation of the evidence is fundamentally flawed insofar as the Regional Court failed to classify the act as particularly serious robbery.
a) The evaluation of evidence is fundamentally the responsibility of the trial court (§ 261 of the German Code of Criminal Procedure). If the trial court only reaches a conviction with respect to some of the offenses charged in the same act because it is unable to overcome doubts, this must generally be accepted by the appellate court. In particular, the appellate court is prohibited from replacing the trial court's evaluation of the evidence with its own. The appellate court's review is limited to whether the trial court committed any legal errors in its evaluation of the evidence. This is the case if the evaluation of the evidence is based on a legally incorrect premise, if it contains gaps, if it is contradictory or unclear, violates the laws of logic or established principles of experience, or if excessively high standards are imposed on the certainty required for conviction. Furthermore, the evaluation of the evidence is legally flawed if the evidence is not evaluated exhaustively or if the grounds for the judgment do not demonstrate that the individual pieces of evidence were incorporated into a comprehensive overall assessment. Neither the principle of reasonable doubt nor any other legal principle requires that assumptions be made in favor of the defendant for which the evidence provides no concrete factual basis (established case law; - cf. Federal Court of Justice, judgments of June 28, 2023 1 StR 421/22, juris para. 9 and of April 26, 2023 — 5 StR 457/22, juris para. 7).
b) The Regional Court's assessment of the evidence, insofar as it deals with the charge of particularly serious robbery by taking the private plaintiff xxx's SLR camera, fails to meet these requirements in several respects.
(aa) The judgment lacks a coherent presentation of the defendants' statements (see (1) below), as well as the statements of the two co-plaintiffs (see (2) below) and the other witnesses (see (3) below). This constitutes a fundamental legal error. While the grounds for the judgment address individual statements at various points, they fail to provide a clear picture of what the parties testified to in a coherent manner. Based on a thematically selective reproduction of individual statements taken out of the overall context of the respective testimony, the Senate cannot examine whether the trial court duly reviewed the contradictory statements of the parties for consistency, detail, and plausibility (cf. Federal Court of Justice, Judgment of August 25, 2022 — 3 StR 359/21 3, NJW 2023, 89, 90 with further references; cf. regarding the statement of a defendant also: Federal Court of Justice, Decision of August 17, 2023 — 2 StR 215/23, juris para. 9).
(1) Although the grounds for the judgment state that the defendant xxx denied having “stole” anything, it remains unclear what statements the “largely confessing” defendant xxx made regarding the alleged robbery. In order to assess the evidentiary value of the statements made by both defendants (apparently for the first time during the main hearing), the Regional Court should also have indicated whether they spoke freely and answered questions or merely adopted statements prepared by their defense counsel (cf. Federal Court of Justice, judgment of June 28, 2023 – 1 StR 421/22, juris para. 13).
(2) The statements made by the private prosecutors during the proceedings are also only presented selectively in the grounds for the judgment, so that the analysis of the statements by the juvenile chamber cannot be reviewed by the court of appeal.
(a) The grounds for the judgment focus primarily on the lack of consistency in the statements, because the testimony of both private plaintiffs cannot be reconciled with their statements made during the initial questioning at the crime scene by police officer xxx. However, the grounds for the judgment do not specify which of the two private plaintiffs said what to witness xxx. It remains unclear whether the statements in question were made by private plaintiff xxx, by private plaintiff xxx (who was not directly involved in the theft), or by both. This undermines the consistency analysis conducted by the Regional Court. It is unclear why the credibility of both private plaintiffs should be affected if one of them gave different information during the initial questioning by the police.
(b) Moreover, it is likely that both co-plaintiffs were confronted with the (alleged) contradictions in their statements both during the preliminary investigation and at the main hearing. How they reacted to this cannot be ascertained from the grounds for the judgment.
(3) Finally, there is also a lack of a comprehensible account of the statements made by the other witnesses. The grounds for the judgment state that "none of the other witnesses" saw the theft. What exactly witnesses xxx and xxx, who were near the scene of the crime at the time, testified to, and whether they had continuous observation of the events – including during the emergency calls they made – remains unexamined.
bb) Insofar as the Regional Court related the statements of the two co-plaintiffs to each other, the grounds for the judgment also prove to be incomplete and unclear. The Juvenile Chamber's view that the co-plaintiffs' statements contradicted each other "on a very essential point," namely with regard to the question of which side of the vehicle the defendant xxx took the camera from, contains legal errors.
(1) It would have required further explanation as to why this should be considered a "material point," especially since the parties involved changed their positions several times during the dynamic events. In any case, it is reasonable to assume that the apparent contradiction would have been resolved by a careful content analysis of the two statements. The co-plaintiffs both testified that they saw the defendant xxx take an object from the passenger window. The only discrepancy emphasized by the Regional Court is that co-plaintiff xxx believed this object to be the SLR camera, while co-plaintiff xxx stated that it was a bag of sweets and that the defendant xxx only subsequently took the camera – this time through the broken window on the driver's side.
As the appeals rightly point out, it is highly likely that the co-plaintiff xxx was mistaken in this respect. Unlike the victim xxx, xxx was not in the vehicle at the relevant time and, moreover, was attacked with a wrench by the defendant xxx at the moment of the theft. The fact that xxx assumed the object in question was the camera also seems plausible because he knew that xxx, who was sitting in the passenger seat, was carrying such a camera. This is consistent with xxx's statement that he only moved the camera from the passenger to the driver's side when the defendant xxx attacked him with the knife.
(2) The Regional Court also fails to recognize that a contradiction between two witness statements does not necessarily mean that both are untruthful. It should have at least provided a more detailed explanation as to why the Juvenile Chamber did not consider either the statement of co-plaintiff xxx or that of co-plaintiff xxx to be credible with regard to the robbery. To do this, it should first have examined each of the two statements individually for consistency, detail, and plausibility.
(cc) Finally, there is also a lack of a thorough overall assessment of all incriminating and exculpatory evidence, including a possible motive for the defendants to steal. While the grounds for the judgment mention that at least defendant xxx felt threatened by the "infringement of his right to his own image," the juvenile court failed to address how this could have provided a motive for the violent taking of the camera. The crucial question for the overall assessment of the evidence—the whereabouts of the camera—remains entirely unaddressed. If the regional court assumed that the camera had not actually gone missing from the victim xxx, as the subsequent return of the SD card might suggest, it should have addressed why the search of the victim's car immediately after the incident yielded no results.
2. The judgment cannot stand in its entirety. The conviction cannot be upheld in isolation, particularly given that a further, concurrently committed offense might be discovered in the new proceedings. This legal error necessitates the reversal of all findings made by the Regional Court, including those concerning the injuries (§ 353 para. 2 of the Code of Criminal Procedure).
3. With regard to the extent of the culpability for the dangerous bodily harm, the new trial court will have to examine the pepper spray attack by the defendant xxx, already listed in the admitted indictment, in more detail than before, as it forms a natural unit of action with the other acts of bodily harm committed in this complex of offenses as a single act in the procedural sense (cf. Federal Court of Justice, decision of May 5, 2021 — 6 StR 132/21, NStZ-RR 2021, 212), in order to fulfill its duty of cognizance pursuant to Section 264 of the Code of Criminal Procedure without legal error.
The new trial court will also have to examine more closely the attribution of the established acts of infringement to the defendants as joint perpetrators pursuant to Section 25 Paragraph 2 of the German Criminal Code (StGB). A prerequisite for attribution as joint perpetrators is the existence of a joint intent to commit the crime, on the basis of which each joint perpetrator must make an objective contribution to the act. The joint plan need not be expressly agreed upon; rather, a tacit agreement suffices. This agreement can also be reached—in an extension of the original plan—within the framework of a division of labor in carrying out the crime (see Federal Court of Justice (BGH), Judgment of June 18, 2020 – 4 StR 482/19, BGHSt 65, 42, 47; Decision of September 13, 2017 – 2 StR 161/17, NStZ-RR 2018, 40).
The Senate further notes that the consensual cooperation between perpetrator and accomplice required under Section 224 Paragraph 1 No. 4 of the German Criminal Code (StGB) is already present if an accomplice present at the scene of the crime deliberately intensifies the effect of the perpetrator's act of bodily harm in a way that is likely to worsen the victim's situation. This may be lacking, however, if several victims are each exposed to only one attacker without any exchange of positions (cf. Federal Court of Justice (BGH), decision of July 25, 2017 – 3 StR 93/17, NStZ-RR 2017, 339 with further references).
III.
Appeal by the defendant xxx
1. The appeal of the defendant xxx, who expressly objects to the conviction by alleging a violation of substantive law, has not revealed any legal error to his detriment, even when considering the arguments presented in the appeal.
This applies in particular to the considerations of evidence by which the Regional Court became convinced that the defendant inflicted a stab wound to the thigh of the victim xxx with a knife. Contrary to the appellant's view, this is not a case of "he said, she said" or "he said." The judgment is based not solely on the victim's testimony, but also on other evidence related to the crime (see also Federal Court of Justice, judgments of January 21, 2004 – 1 StR 379/03, NStZ 2004, 635, 636 and of May 28, 2003 – 2 StR 486/02, NStZ-RR 2003, 268, 269). For example, the victim xxx testified that he had observed the defendant xxx stabbing the passenger side of the car with the knife. Furthermore, the stab wound suffered by the victim xxx and the corresponding damage to his clothing correspond to the act of violence perpetrated by the defendant as he testified. In light of this objective evidence, the fact that the statements of the two co-plaintiffs – as well as the defendant's own statements – are not presented in context in the grounds for the judgment does not prejudice the defendant. The grounds for the judgment contain no indications requiring discussion that the stabbing was carried out by the co-defendant xxx or even a third party, and these are not presented by the appeal either.
Furthermore, the judgment contains no other legal errors to the detriment of the defendant, so the appeal must be dismissed in its entirety.
2. The decision on costs is based on Section 473 Paragraph 1 of the Code of Criminal Procedure; the Senate sees no reason to refrain from imposing costs and expenses in the appeal proceedings pursuant to Sections 74, 109 Paragraph 2 Sentence 1 of the Juvenile Courts Act.
Insofar as the defendant seeks a modification of the ruling on the allocation of costs and expenses against the main decision, a decision by the Senate is not required. The immediate appeal – which is the only admissible remedy in this respect – (§ 464 para. 3 of the Code of Criminal Procedure; see also Federal Court of Justice, decision of February 1, 2011 – 3 StR 502/10, juris para. 3) was withdrawn by the defense counsel by declaration of January 30, 2023. At this point, the Senate had not yet dealt with the matter, so the Regional Court is responsible for the decision on costs for the withdrawal of the appeal, which was otherwise only declared after the expiry of the one-week period stipulated in Section 311 Paragraph 2 of the Code of Criminal Procedure (see Federal Court of Justice, decision of February 3, 2021 — StB 4/21; KK-StPO/Gieg, 9th edition, Section 473, marginal note 2; MüKo-StPO/Maier, Section 473, marginal note 34 with further references).
Lower court:
Mühlhausen Regional Court, 15 September 2022 – 3 KLs 101 Js 47753/18
