Two interesting and controversial judgments have been handed down by German courts recently in cases involving high speed chases and drag races in German cities.
Illegal drag races have happened in Germany since there were cars, but the new phenomenon is driven by young males from urban areas, usually of immigrant background, who conduct either staged or impromptu drag races within city limits, on streets with heavy traffic. Unsurprisingly, this sort of thing often leads to fatal accidents.
The question is: if someone dies as a result of these races, can the driver or drivers be prosecuted for murder? Until recently, the answer to this question was no: it was impossible to prove that the racers (the German word is Raser, which refers to anyone who drives far above the speed limit) had the required intent to prove murder under German law.
Two recent cases have started to change this state of affairs. Courts in both of them convicted drivers of murder for engaging in extremely dangerous driving in German cities, with fatal results.
I. The Hamburg Ballindamm High-Speed Chase Decision
The first case is from Hamburg. The decision (g) from the Hamburg Regional Court is incredibly detailed, with maps and photographs and a minute reconstruction of the events. It’s a minor masterpiece of judicial craftsmanship, and even takes a few modest poetic liberties. I couldn’t stop reading it, which is a very unusual thing to experience reading a judicial opinion.
The facts of the case are thrilling, in a grim and tragic way. The defendant D., who isn’t named, was a Lithuanian immigrant. His country of origin is also not specified by the court, but did appear in news reports. Let’s call him Darius. Darius was 24 years old, of very low intelligence (but not intellectually disabled), homeless, and alcoholic. He shifted between Lithuania and Germany, and when he was in Germany made his living mainly by stealing radios and navigation devices from cars. He kept getting caught, and had an interminable criminal record. (You might think Germany would want to keep such a person outside of Germany, but this is impossible, since Lithuania is an EU country.)
One night Darius decided to steal from a taxi at around 3:30 AM. He and an unnamed friend broke into the taxi, and as they were burgling it, they noticed that the taxi driver had left the keys inside his car. Darius decided he could make a lot more money by stealing the entire car instead of just the radio, so he began driving. His friend wisely decided not to join Darius.
There were many problems with Darius’ plan. The first is that Darius had no license. He had tried to get one, but failed the written portion. The second problem was that Darius had little experience driving cars, especially sophisticated Mercedes cars (virtually all official German cab drivers drive Mercedes). The third problem was that Darius had a blood-alcohol content of about 1.8 well over the legal limit. Darius began driving the car on the streets of Hamburg in a halting, jerky motion, as he familiarized himself with the controls. Apparently he couldn’t find the controls for the headlights, so he drove dark.
By a random stroke of luck, an off-duty German police officer was roaming Hamburg at about 4 AM at this time, and noticed the taxi driving erratically with no headlights. He approached the taxi, followed it, and began honking and flashing his lights to alert the driver. Darius thought he was being followed, and decided to try to shake off the pursuit by driving rapidly and recklessly. He soon reached speeds of 100 km/hr (62 mph), twice the posted speed limit. The off-duty cop decided not to pursue, but alerted the nearest police station, which sent two officers to intercept Darius.
The two officers joined chase with lights and sirens blazing, and Darius now decided that if he couldn’t shake them off, he was done for. So he began speeding ever faster, unaware that he was rocketing towards the center of Hamburg, where there would be an increasing amount of traffic and intersections. He blew past dozens of red lights and almost lost control on several curves. An expert called in to reconstruct the chase noted that Darius would have jumped a curb and smashed into the wall at least once — but the Mercedes taxi he was driving kicked in with automatic stabilization software and saved him at the last moment. Eventually, Darius decided to start driving into oncoming traffic at well over 120 km/h, essentially consigning his fate to the gods.
Eventually, Darius crashed head-on into an oncoming taxi. Darius’ airbag inflated, but he still suffered severe injuries. The taxi had two passengers; one wore a seat belt and survived, the other did not, and was killed instantly. The taxi driver’s airbag and seatbelt saved his life, but he also had severe injuries. The taxi had been reduced to a mangled pile of metal, barely recognizable — it’s a testament to the safety of modern cars that three of the four people involved survived.
Darius did not testify at trial about the circumstances of the accident, claiming he could not remember them. This required the court to reconstruct his state of mind by the objective external circumstances of his actions. This is quite important, since the court could only justify a verdict of murder by showing that Darius’ actions showed a grossly reckless disregard for human life. Darius’ actions were intended to shake off his police pursuers by making it so dangerous to follow him that they would have to give up. He followed an “all or nothing” (in the court’s words) strategy, creating dozens of situations in which both he or others in traffic could have been killed in multi-car accidents.
The court convicted Darius of murder. Darius appealed and in March of 2019, the German Federal Supreme Court of Justice — upheld the conviction in a brief order (g), the first time a conviction for murder has been upheld in a high-speed chase or drag-racing case by Germany’s highest court.
2. The Berlin Kurfürstendamm Drag-Race Case
The second murder case was a traditional drag-race case (g). Marvin and Hamdi (their real first names), spotted each other by chance at 1:30 in the morning on the Kurfürstendamm in Berlin. They agreed to a spontaneous drag race — one had an Audi, the other a Mercedes. Hamdi was beaten to the first two intersections, and decided he was going to go all-out to win the third stage. He accelerated to 170 km/h (105 mph), ran a red light, and struck a jeep driven by a retired doctor. The doctor and the jeep were catapulted 70 meters, and, as the judge noted, “almost every bone in the doctor’s body was broken”.
The court found that their conduct was more than negligent; they created such a high risk of death that they should be found guilty of murder (see below for more details on why). They conducted their drag race not on a remote country road, but one one of the main thoroughfares of Berlin, at insanely high speeds. The two defendants appealed, and the Federal Supreme Court of Justice held (g) that the trial court had not provided sufficient justification for finding them guilty of murder, and remanded the case back to the trial court. One reason for the high Court’s ruling was that, unlike in the Hamburg case, the drivers in the Berlin case did not also intend to risk their own lives by their conduct. After the case was sent back, the trial court reconsidered the facts, provided more details and arguments, and, this past 26 March, convicted them of murder again (g). They will doubtless appeal the verdict again to the Federal Supreme Court.
III. Intent in German Criminal Law
How can people be convicted of murder when if they did not specifically intend to kill anyone? To understand, we have to look at the law of intent in Germany. German laws are very clipped and short; here is the definition of intention from the criminal code: “Unless the law expressly provides for criminal liability based on negligence, only intentional conduct shall attract criminal liability.”
It’s the job of courts and professors to elaborate exactly what “intentional conduct” means, and how to distinguish it from negligence. They have, of course, done so during the 150-year history of modern German criminal law. The scheme they have worked out was recently described in an essay (g) for Der Spiegel by Thomas Fischer, a former judge on the German Federal Supreme Court for criminal matters and an acid-tongued commentator on the German legal scene.
Assume you’re standing at a window over a square, and you’ve got a heavy stone you just need to get rid of, so you throw it into the square. You can do so with any of five states of mind:
Purpose (Absicht): I see an enemy below and throw the stone at him, hoping to hit him.
Direct Intent (Direkter Vorsatz): The square below the window is so full that I can be certain someone will be hit. I throw the stone anyway.
Conditional Intent (Bedingter Vorsatz): There are many people in the square. I throw the stone knowing it’s very likely I’ll hit someone. If so, it’s just not their day.
Conscious Negligence (Bewusste Fahrlässigkeit): I might hit someone with the stone. That would be horrible, and I hope it doesn’t happen.
Unconscious Negligence (Unbewusste Fahrlässigkeit): There was nobody down there when I threw the stone. I honestly believed it was impossible that anyone would be hit.
The German scheme is subtly different from the standard common-law categories of negligence, recklessness, and intent. As we see, German law has three different kinds of intent based on the criminal’s attitude toward the consequences of his act, based on the circumstances. For our purposes, what’s relevant is that you can be prosecuted for murder based on “conditional intent” what common-law lawyers would consider merely reckless (or grossly reckless) conduct.
The key legal phrase for establishing conditional intent is billigend in Kauf nehmen. We’ll need to unpack this a little. The ordinary meaning of billigend means “approvingly”; as in “The wife looked on approvingly as her husband took out the garbage.” In Kauf nehmen, literally, to “take it along with the purchase” is to accept that something will occur without necessarily desiring it; in the sense of “I knew my guests would spill wine on my carpet, but I decided to throw a party anyway.”
Adding these elements together, you get a mental state in which you know your actions are very likely to have negative consequences, but you approve of and/or accept that risk, and perform the actions anyway. This state of mind, if proven, gets you to conditional intent, which is enough to justify a conviction for murder (as long as the other parts of the definition of murder are satisfied).
And now we can return to our high-speed chase / car-race cases. First, we need to understand why they’re controversial. Under German law up to this point, unintentionally causing a fatal auto accident was prosecuted as negligent homicide (fahrlässige Tötung). Here’s an example: Klaus is driving home late at night slightly drunk, one of his headlights doesn’t work, he is distracted by his radio. He accidentally hits a pedestrian going 30 km/h. The pedestrian dies. Assuming normal circumstances, with few pedestrians around late at night, Klaus is guilty only of negligent homicide under German law. The possibility he might hit someone — and that they might die — is certainly evident, but hardly inevitable. Klaus’ conduct, and his attitude toward its consequences, does not fit the definition of billigend in Kauf nehmen, Klaus did not “actively accept” a high risk of death or serious injury.
But the courts in these two recent cases decided that the drivers were much more than negligent; that they “actively accepted” a high risk of death or injury. They were driving at breakneck speeds on heavily-traveled main thoroughfares inside large German cities, blasting through red lights and sometimes even driving on the wrong side of the road. The likelihood that a fatal accident would occur was much higher even than in the Klaus situation. Of course the defendants would deny they wanted an accident to happen, but the court can conclude, from their behavior alone, that they “actively accepted” the risk of killing someone, and thus displayed conditional intent.
Thus, they can be sentenced for murder under German law, which carries a life sentence — although there is a strong presumption of release after 15 years, so nobody actually serves life under the normal murder sentence.
These judgments are controversial, and many German legal scholars (including Fischer) think judges are twisting the law to accommodate public outrage over dangerous drag-racing in German cities. The issue in the background is the leniency of German prison sentences: The punishment for mere negligent homicide is a maximum of only five years, which strikes many ordinary citizens as much too lenient for the sort of behavior described in these court judgments. It seems to me that one way to solve this problem would be to introduce an intermediate category of “grossly reckless” homicide, which would have a sentence of, perhaps 10 years. Fischer considers and discounts this possibility, but I personally think it’s worth considering.
In any case, Darius is going to prison for life, unless the Federal Constitutional Court steps in. When the BGH decides the appeal of the Berlin drag-racers, I’ll post an update.