I. Intent According to German Law

For a better understanding of this ruling, especially the ensuing controversy surrounding it, it is crucial to first be familiar with German criminal law with regard to the mens rea element of an offense. German criminal law distinguishes merely between intent and negligence, an intermediate stage such as recklessness,Footnote ¹⁸ which is a well-established notion in common-law-based legal systems, does not exist. The distinction between an offender acting with intent and one acting negligently is essential in German criminal law because, pursuant to § 15 StGB, only intentional conduct leads to criminal liability—unless the law explicitly states otherwise.

The definition of intent is not codified in German law. However, according to the prevailing opinion, intent consists of two elements: The element of “will” or “volition” (Wollen) and the element of “knowledge” (Wissen). German law differentiates between three forms of intent: first-degree (dolus directus 1. Grades; Absicht), second-degree (dolus directus 2. Grades; direkter Vorsatz/Wissentlichkeit), and conditional intent (dolus eventualis; Eventual or bedingter Vorsatz).

With regard to first-degree dolus directus, the element of volition dominates; the offender’s main purpose is to bring about the desired result of the crime. With second-degree dolus directus, the element of knowledge preponderates and the offender knows or foresees that his actions will almost certainly lead to the fulfillment of the actus reus of an offense.Footnote ¹⁹ With conditional intent, so-called dolus eventualis, neither the element of volition nor the element of knowledge prevails. Rather, it covers situations where the offender seriously contemplates the possibility that his actions may bring about the result of a crime but resigns themselves to that fact.Footnote ²⁰ Conditional intent, when proven, has the same legal consequences as any other form of intent. A clear separation between conditional intent and deliberate negligence (bewusste Fahrlässigkeit, the more aggravated form of negligence) is difficult to demarcate, and the boundary is blurred because the offender anticipates the possibility of committing the offense in both cases. Generally, the courts assume deliberate negligence when the offender has reasonable faith in the fact that the legally proscribed result will not occur, whereas conditional intent is assumed when the offender accepts that the said result will or could occur and nevertheless proceeds.Footnote ²¹

Comparing the German system of dealing with mens rea to the one used in most common law jurisdictions, the most striking difference is—as noted above—the lack of an intermediate stage of recklessness between intent and negligence. For the purpose of this brief comparative view, the definition of recklessness as stated in the American Model Penal Code shall be used. The Code defines recklessness as when a person “consciously disregards a substantial and unjustifiable risk . . . [involving] a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”^{Footnote 22} Because this definition does not include an element of volition, but rather only requires the offender to disregard the risk of harm their actions pose to a legally protected interest, both the German concepts of conditional intent and deliberate negligence would fall into the scope of recklessness in the Anglo-American system.^{Footnote 23} This has the advantage of eliminating the need to establish the offender’s attitude towards the risk he creates—something which is difficult to determine with a reasonable degree of certainty.^{Footnote 24} Because the distinction between intent and negligence is so problematic and its consequences are so significant—unless otherwise stated, only intent leads to criminal liability—several scholars in Germany have long argued for the adoption of a category of mens rea similar to common law recklessness.^{Footnote 25}

With regard to the cases at hand—which were decided by the LG Berlin—due to the fact that § 211 StGB does not explicitly state that negligence is punishable, pursuant to § 15 StGB, an intention to kill by the offender is required for a murder conviction.

II. Arguments For and Against the Assumption of Intent

The LG Berlin’s decision to affirm a conditional killing intent and to refute deliberate negligence was—and still is—a highly polarizing issue, with as many legal scholars approving of the decision as those disapproving. Hereinafter, the main arguments put forward by both sides will be presented.

The controversial question of whether or not the defendants acted with conditional intent raises two questions: Whether they realized that their behavior posed a possibly lethal threat to themselves and others, and whether they resigned themselves to that fact. Scholars in favor of the court’s decision argue that the defendants realized that they had created an objective danger to others with their excessive speed and their flouting of several red traffic lights in an area of Berlin that is bustling, even at night. Furthermore, they did not take any steps to minimize that danger, nor were they in an intoxicated-like state of mind where it is impossible to make rational considerations. This can be established by the fact that at least one of the defendants initially stopped at red traffic lights before continuing the race without further interruptionsFootnote ²⁶ —an act which shows that they did not heedlessly commence their race. Additionally, both defendants were driving their respective vehicles safely in demanding traffic and driving situations, which would rebut any argument that they were in an intoxicated-like state of mind.Footnote ²⁷

Because both drivers were aware of the fact that their behavior was extremely dangerous to others—yet, they nevertheless continued with their race—they also accepted that the outcome of the race could be fatal. There are no evident special circumstances which would substantiate the idea that the defendants did not have any reason to believe that an accident would not happen. A person driving at speeds of up to 170 km/h—three times more than the permitted speed limit of 50 km/h—and crossing several red traffic lights along the way on a major inner-city road, even late at night, cannot seriously dismiss the occurrence of an accident; they can only hope and leave it to chance.Footnote ²⁸ Kubiciel and Hoven compare that situation to playing Russian roulette: Even when one pulls the trigger for the first time, it is up to chance whether or not a shot is fired—and with every pull of the trigger, chance not only decides whether, but also when, a shot is fired. Footnote ²⁹ Due to the fact that the defendants could not see whether or not another vehicle had entered the intersection they were crossing, that is essentially what they did; they played Russian roulette with themselves and others. The risk of an accident increased with every red traffic light they ignored, and due to their excessive speed, they would—in any event—not have been able to react in time had another vehicle entered the intersection.

These are the reasons why, according to the ruling of the court itself and those in favor of the court’s decision, the defendants did realize that their actions posed a possibly lethal threat to others and—at the very latest, upon entering the intersection of Tauentzienstraße and Nürnberger Straße, when, due to their excessive speed, they could not have been in the position to be able to react to other vehicles—they did resign themselves to that fact and therefore acted with conditional intent.

Scholars opposing the ruling, however, argue that the defendants did not act with conditional intent and that they neither realized nor accepted the danger they were posing to themselves and others. While from an objective point of view they displayed extremely dangerous behavior, this fact alone cannot substantiate the claim that they accepted this danger. Special circumstances—in this case, the defendants’ intoxicated-like state of mind during the race—can lead to them not understanding that this could culminate in a possibly fatal accident.Footnote ³⁰

Due to the adrenaline, speed, and danger of the situation, participants in car races like the one in Berlin experience a state of elation, which is comparable to driving under the influence of alcohol or narcotics. These emotions—this “thrill of the race”—rendered the defendants bereft of any ability to think critically about their actions and, thus, they were unaware of the danger that they had created to other road users. In his case comment, Walter proposes a helpful analogy to comprehend the effects of this state of elation: He compares it to the attempt to form a reasonable thought while in the middle of looping the loop on a roller coaster ride.Footnote ³¹ Furthermore, assuming that the defendants did realize the possibility of an accident also implies that the defendants realized the possibility of an accident which could lead to serious damage to their vehicles and even their own deaths. If that were the case, one would have to assume that they acted with conditional suicidal intent too.Footnote ³² But even the LG Berlin stated in its decision that “in the adrenaline rush, possible thoughts towards the damage or the destruction of their own vehicles had been put aside.” ^{Footnote 33} However, if the defendants did indeed disregard any thoughts towards the damage or destruction of their own vehicles, then one must ask why they did not do the same with regard to the damage or destruction of other vehicles or the death of other road users?

Moreover, even if they were aware of their dangerous actions, they had confidence in the fact that no accidents would occur. The aim of the contestants in an illegal car race is to win the said race. However, a person who seriously believes that they can win a race also believes that they will cross the finish line as the winner. Therefore, that person has the utmost faith in everything going well and no fatal collisions occurring en route. This is one reason why the majority of participants in such races do not fasten their seat belts, do not carry first aid kits in their cars, and do not contact their family or close friends before they start a race.Footnote ³⁴

The defendants’ firm belief that nothing could and would happen to them or others was further emphasized by the fact that the defendants had already jumped several red traffic lights at excessively high speeds without any consequences. Thus, they had no reason to believe that this would change. Additionally, they assumed that the higher their speed, the less likely they were to collide with other road users. This may very well appear absolutely ludicrous. However, stupidity itself is not punishable—as much as everyone from time to time wishes it were—and each of the offender’s own ability—or, in this case, inability—to comprehend the possible consequences of their actions has to be taken into consideration when establishing whether or not this person, as an individual, acted with conditional intent.Footnote ³⁵

Another factor that has to be assessed is the offender’s behavior subsequent to the commission of the offense. After the accident had brought the race to an abrupt and premature end, the defendant H—the driver who had collided with the victim—repeatedly uttered the sentence: “How could this happen, how could this happen?”Footnote ³⁶ This is a clear sign that he did not believe that such an accident could occur; he may not have even foreseen the possibility that this could indeed happen.

The final argument against the LG Berlin’s decision is that by affirming a conditional intent to kill—and thereby convicting the defendants of murder in this case—in other similar cases where these races do not result in the death of another person, the offenders would need to be prosecuted for attempted murder.Footnote ³⁷ This is due to the fact that under German law, the intent in a completed offense equals the decision to commit the offense as an attempt. This decision to commit the offense is the key part of the mens rea when an offender is to be convicted of an attempt. However, if the race had not ended with an accident—but, for example, with the police stopping the defendants—it is highly unlikely that this whole incident would have been treated as more than merely an administrative offense. In fact, every single case with similar circumstances would have to be treated in the same way, even if nothing happened and the race participants were able to finish their race. The courts would always have to adjudge whether or not the offenders could be convicted of attempted murder—something which is also highly unlikely to happen. In addition, the LG Berlin did not even assess the possibility of convicting the defendants for the attempted murder of K, the girlfriend in the passenger seat of N’s car, who suffered severe injuries. Following its arguments on why the defendants had acted with conditional intent, the LG Berlin should have done precisely that. Instead, they were only convicted of the lesser offense of inflicting grievous bodily harm for K’s injuries. ^{Footnote 38}

III. Possible Motives Behind the Court’s Judgment

In the authors’ opinion, the main motive behind the LG Berlin deciding to affirm a conditional intent to kill was, arguably, that the alternative sentence for a charge of negligent manslaughter would have resulted in a term of imprisonment not exceeding five years. This sentence—given the facts of the case and the behavior of the defendants—intuitively appears to be too short. A further factor that may have exerted some influence on the ruling was that this case had attracted a great deal of media attention and many people had been demanding a harsh sentence, feeling that the numbers of highly dangerous car races had increased over the past few years and that a strong signal needed to be sent to these notorious speed merchants. This, however, cannot be the cause for convicting someone of murder based upon rather dubious reasoning, especially considering the fact that the sanction for a murder conviction in Germany is a mandatory life sentence—a punishment which might appear to be too high. However, at that time, those were the two options available to the LG Berlin, and it selected the one that—in the authors’ opinion—was the less favorable. Unsurprisingly, the defendants appealed this decision on points of lawFootnote ³⁹ and the case was referred to Germany’s highest court of ordinary jurisdiction, the BGH, which quashed the convictions and handed the case back to a different chamber of the LG Berlin for a retrial.

I. First Decision of the BGH

The BGH announced its ruling on March 1, 2018. Hereinafter, the main points of the judgment will be presented. The Fourth Criminal Senate of the BGH, the only senate at a federal level hearing criminal cases involving road traffic incidents, overturned the ruling of the LG Berlin. The judges opined that the course of events, as determined by the LG Berlin, did not support the assumption of an intentional murder. According to the verdict of the LG Berlin, the defendants had recognized the possibility of a fatal outcome of their race for other road users and had accepted it approvingly when they entered the intersection where the accident took place.Footnote ⁴⁰ However, the LG Berlin determined that, at the same time, the defendants had no possibility of preventing the accident because they were “completely unable to react.” ^{Footnote 41} According to these findings, the events leading up to the fatal accident had already been irreversibly set in motion before the requisite intent to kill had occurred among the defendants. ^{Footnote 42}

The BGH reiterated that in cases of homicide and offenses occasioning bodily harm, the decision of whether the offender acted with conditional intent or with deliberate negligence requires a complete overview of all the objective and subjective elements of the offense. ^{Footnote 43} The objective danger of the act and the probability of it successfully fulfilling the actus reus of a criminal offense alone are not the crucial criteria for assuming conditional intent, but rather the circumstances of the individual case need to be considered when dealing with highly dangerous acts. ^{Footnote 44} The BGH’s judgment stated that the behavior that caused the accident which resulted in the death of another road user was not based upon an intention to kill. ^{Footnote 45}

Besides this, the evaluation of the evidence by the LG Berlin also suffered far-reaching legal deficiencies with regard to the subjective elements of the offense. These related to the question of whether or not a possible risk of self-endangerment of the defendants in the event of an accident could contradict the existence of an intention to kill. ^{Footnote 46} The LG Berlin denied this on the grounds that the defendants felt absolutely safe in their vehicles and that they had dismissed their own risk of self-endangerment. ^{Footnote 47}

However, this is somewhat difficult to reconcile, considering that it is questionable whether or not the defendants—as the LG Berlin had further assumed—had accepted the actual, serious, and even fatal injuries suffered by the passenger as a result of an accident. ^{Footnote 48}

The LG Berlin did not solve this contradiction with regard to the defendants’ estimation of danger to persons who were in the same vehicle. In addition, the court did not prove its belief that the defendants felt completely safe in their own vehicles. The LG Berlin had based its assumption on the fact that drivers such as the defendants regularly felt safe—“like in a tank or in a castle”—in their heavy-duty, high-acceleration vehicles equipped with comprehensive safety technology. ^{Footnote 49} However, there is no empirical evidence to support this claim.

A further legal error concerns the conviction of the other defendant, whose vehicle did not collide with that of the victim. His conviction for complicity in murder could not—without legal errors—be upheld, even if the LG Berlin had been able to prove an intent to kill during the accident. ^{Footnote 50} It does not follow from the findings of the judgment that the defendants committed murder as a joint criminal act. For this to be the case, it would be necessary for the defendants to have made a joint decision to commit the killing of another human being and to have executed this jointly by division of labor. ^{Footnote 51} The agreement to jointly carry out an illegal car race—upon which the LG Berlin based its decision—has a different context and is not sufficient for the assumption of a joint homicidal offense. ^{Footnote 52}

As a consequence of the said deficiencies, the federal judges referred the case back to the LG Berlin. Nevertheless, in doing so, they made it clear that they were not stating that the defendants could not in theory be convicted of murder, but merely that the reasons that the LG Berlin had given in its ruling to affirm a conditional intent to kill were legally flawed.

II. Second Decision of the LG Berlin

The retrial began on August 14, 2018 at the LG Berlin.Footnote ⁵³ At the first hearing, the defendant N filed an application for the exclusion of the three professional judges on the grounds of possible bias. The defendant H endorsed the application. On August 27, 2018, the application was granted with the LG Berlin explicitly stating that there was no actual bias of the judges per se. Nevertheless, in accordance with the German Criminal Procedural Code (Strafprozessordnung; StPO), the judges were excluded for possible bias because they had relied heavily on the reasoning of the quashed conviction from the first trial when deciding whether the defendants should remain in custody pending trial.Footnote ⁵⁴ Subsequently, the retrial was properly conducted in front of a different chamber of the LG Berlin, and started on November 19, 2018.Footnote ⁵⁵

On March 26, 2019, the three professional judges and two lay judges of the Thirty-Second Grand Criminal Chamber of the LG Berlin once again convicted H and N of murder in conjunction with inflicting grievous bodily harm and intentionally endangering road traffic—pursuant to §§ 211 (II), 224 (I) No. 4, and 315c (I) Nos. 2(a), 2(d) StGB—and sentenced them to life imprisonment. Their driving licenses were also revoked for five years. ^{Footnote 56}

The LG Berlin took the decision of the BGH into account and—contrary to the first judgment—focused its reasoning for affirming a conditional killing intent on an earlier point in time: That being when H and N still had control over their vehicles and the events were not already irreversibly set in motion. According to the court, the defendants had recognized the risk their behavior posed to the lives of other road users but nonetheless carried on with their race in complete disregard of this. Thereby, they showed that they had resigned themselves to the potential death of others, and they did so at a time when they still had their vehicles under control and could have applied the brakes. Yet, the defendants did not remove their feet from the accelerator pedals and, thus, they acted with a conditional intent to kill.Footnote ⁵⁷

The LG Berlin also reestablished that the fact that the defendants had put themselves at risk of death did not in any way contradict the assumption of a conditional killing intent. This time, the court reasoned that H and N did in fact recognize the risk they were putting themselves in, but that they estimated the risk to be low and were willing to accept it for the sake of continuing with their race. ^{Footnote 58}

The court again stated that the defendants’ powerful, fast cars constituted a danger to the public (gemeingefährliche Mittel). Contrary to the first judgment, however, the LG Berlin did confirm that the defendants acted with base motives. Their aim to win the car race at any price was, morally speaking, at the lowest possible level. Therefore, the court saw fit to classify it as a base motive in accordance with § 211 (II) StGB. Additionally, H and N fulfilled the murder criterion of acting perfidiously (heimtückisch)Footnote ⁵⁹ because the victim W was unaware of any danger and, therefore, completely defenseless as he had understandably assumed that there would be no danger if he passed through the intersection at a green light. ^{Footnote 60}

The defendants once again appealed this verdict on points of law and the case was referred to the BGH for a second time.

III. Second Decision of the BGH

On June 18, 2020, the Fourth Criminal Senate of the BGH decided on the appeal of the two defendants against the second judgment of the LG Berlin.

The BGH rejected the appeal lodged by H, the defendant directly involved in the accident, and his renewed conviction of murder by the LG Berlin was upheld. However, the BGH corrected a part of the verdict from inflicting grievous bodily harm to inflicting negligent bodily harm (fahrlässige Körperverletzung), pursuant to § 229 StGB. ^{Footnote 61} This correction of the verdict (Schuldspruchkorrektur) does not, however, influence H’s sentence, which remains life imprisonment. ^{Footnote 62}

In the reasoning for its decision, the BGH largely followed the conclusions of the LG Berlin. It stated that the defendant had realized that the race could only be won by increasing the risk to the maximum and setting aside all doubts, and that the extraordinary dangerousness of the defendant’s driving behavior and his awareness of the inherent risk of a serious traffic accident indicated that he would accept such an accident with potentially fatal consequences for the other party. ^{Footnote 63} Therefore, the strict requirements for the existence of a conditional intent to kill were met. The BGH also confirmed that the LG Berlin’s deliberations on the contradiction between the assumption of conditional intent and the risk of self-endangerment sufficiently justified the LG Berlin’s decision that self-endangerment does not exclude intent.Footnote ⁶⁴ The assessment of the evidence by the LG Berlin regarding the mens rea of the murder criterion of “utilizing means constituting a public danger,” however, displayed serious legal errors—according to the BGH. Nevertheless, because the LG Berlin had—in the BGH’s opinion—additionally affirmed the murder criteria of “acting perfidiously” and “with base motives” without legal error, this did not affect H’s conviction or the sentence. ^{Footnote 65} This judgment is now final and cannot be appealed.

With regard to the appeal filed by the co-accused N, whose vehicle did not collide with that of the victim, the BGH overturned the conviction rendered by the LG Berlin. The conviction for jointly committed murder was quashed, as the assessment of evidence once again did not support the determination of a joint intent aimed at killing a person. In the context of the assessment of evidence, the LG Berlin only dealt with the question of the conditional killing intent of N in relation to a hypothetical fatal accident caused by himself, but not with a decision aimed at a joint execution of the crime with the defendant H. It was, however, not proven that this conditional killing intent could be attributed to N as well. It is far-fetched that the accused implicitly extended the car race plan to the killing of another person while driving towards the intersection—as the LG Berlin suggested—given their intense focus on the race. ^{Footnote 66}

As such, the case concerning the defendant N has been handed back to the LG Berlin, once again, for another trial.

I. Background of § 315d StGB and the Legal Situation Before Its Implementation

Section 315d StGB was implemented in 2017 after several cases of illegal car races were reported in the media—the most notorious and infamous one being the “Ku’damm Raser” case assessed above.

Before the introduction of § 315d StGB, the participation in or the organization of an illegal car race was categorized as a mere administrative offense—in accordance with §§ 29 (I), 49 (II) No. 5 StVO a.F.Footnote ⁶⁷ —resulting in fines up to 500€ and, in especially severe cases, a driving ban not exceeding three months.

The Bundesrat—the upper house of the German parliament—stated in its draft law that the existing sanctions had proven to be insufficient in practice and, therefore, more severe sanctions were required. ^{Footnote 68} This was because illegal motor races endanger the lives and limbs of other people, especially with regard to the speed that can be attained and the danger of losing control over one’s vehicle. The Bundesrat also deemed it insufficient that the criminal code could only be applied in severe cases: When the life or limb of another person has already been harmed, or when a specific danger has arisen as a result of a legally specified traffic violation in relation to one of the so-called “seven deadly sins of driving” (“Sieben Todsünden des Straßenverkehrs”) ^{Footnote 69} under § 315c StGB, the provision which deals with the endangerment of road traffic.

The purpose of the new § 315d StGB is to penalize illegal motor races—even if no one was harmed—and to achieve a lasting impact on participants or organizers of illegal car races by upgrading the act from a mere administrative offense to a criminal one. The distinction between an administrative offense and a criminal offense is severe. Administrative offenses are legal violations that have no criminal content and, therefore, are only punishable with fines and/or driving bans. Whether an administrative offense is actually sanctioned lies within the discretion of the responsible administrative authorities.Footnote ⁷⁰ In contrast, the violation of a criminal offense is punishable with either a fine or a term of imprisonment which is determined by the courts.Footnote ⁷¹ Its prosecution lies within the discretion of the responsible public prosecution office.Footnote ⁷²

II. Wording of the New Law—§ 315d StGB—Illegal Motor Racing (Verbotene Kraftfahrzeugrennen)Footnote ⁷³

1. (1) Whoever in road traffic

   1. 1. organizes or conducts an illegal motor race,

   2. 2. participates in an illegal motor race as the driver of a motor vehicle or

   3. 3. moves with inappropriate speed as the driver of a motor vehicle and in gross violation of traffic regulations and carelessly in order to achieve maximum speed incurs a penalty of imprisonment for a term not exceeding two years or a fine.

2. (2) Whoever, in the cases under subsection (1) no. 2 or 3, endangers the life or limb of another person or property of significant value belonging to another incurs a penalty of imprisonment for a term not exceeding five years or a fine.

3. (3) In the cases under subsection (1) no. 1, the attempt is punishable.

4. (4) Whoever causes the danger by negligence in the cases under subsection (2) incurs a penalty of imprisonment not exceeding three years or a fine.

5. (5) Whoever, in the cases under subsection (2), causes another person’s death or serious damage to another person’s health or causes damage to the health of a large number of people incurs a penalty of imprisonment for a term of between one year and 10 years, in less serious cases imprisonment for a term between six months and five years.

III. Analysis of § 315d StGB

Section 315d StGB aims to protect road safety and the related physical integrity of other road users—such as other vehicle drivers, cyclists, or pedestrians—and their property from damage caused by accidents. It penalizes the organization and carrying out of an illegal motor race, as well as the participation in such a race.

What is particularly noteworthy in the new provision is § 315d (I) No. 3 StGB. This paragraph deals with so-called “Alleinraser.” Alleinraser are drivers who, without any other race participants, drive at inappropriate speeds, carelessly, and in gross violation of traffic regulations in order to achieve maximum speed. Driving at an inappropriate speed means driving in a manner that is too fast and which violates the speed limit or is contrary to the current traffic situation. ^{Footnote 74} Inappropriate speed therefore means a speed which does not correspond to the road, visibility, and weather conditions, whereby the violation of the speed limit may be regarded as a decisive indicator. ^{Footnote 75} The crucial question is whether or not the vehicle can be controlled at the attained speed. ^{Footnote 76} In comparison with real car races, cases of Alleinraser appear less dangerous. The sanction for the offenses listed in § 315d (I) StGB is a term of imprisonment not exceeding two years or a fine.

In addition to terms of imprisonment and fines, § 315f StGB allows for the confiscation of motor vehicles which were used as an object in the commission of an offense listed under § 315d (I) Nos. 2, 3 (II, IV, V) StGB. Furthermore, § 69 (II) No. 1 StGB allows for the revocation of the offender’s driving license. In cases in which a revocation of the driving license was not utilized, there is also the possibility of imposing a driving ban in accordance with § 44 StGB. Thus, repetition of the offense can be prevented in the long term, or even permanently.

In accordance with § 315d (II) StGB, penalties are increased to up to five years’ imprisonment if the race participants endanger the life and limb of, or property of significant value belonging to another person. It is a specific-endangerment offense (konkretes Gefährdungsdelikt), the requirements of which are met when the endangered object comes within the effective range of the act causing the damage, so that the occurrence of the damage can no longer be averted, and its failure only depends on mere randomness—so-called “near-miss” scenarios. The endangerment must be attributable to an act under § 315d (I) Nos. 2, 3 StGB. It is penalized with a term of imprisonment not exceeding five years or a fine, and conditional intent is required with regard to the endangerment of others. In the event of negligently causing danger under § 315d (II) StGB, the term of imprisonment shall not exceed three years or a fine. Pursuant to § 315d (V) StGB, in cases where the race results in death or damage to the health of another person or larger number of people, the term of imprisonment shall be from one to ten years and—in less serious cases—from six months to five years.

Had § 315d StGB already been in force at the time of the collision on the Kurfürstendamm on January 31, 2016, the offenders H and N may well have been convicted pursuant to § 315d (I) No. 2, (II) and (V) StGB for carrying out an illegal car race and thereby damaging K’s health and causing the death of W. Their sentence would have been a term of imprisonment between one and ten years if they were only charged with participating in an illegal car race. Nevertheless, because the court determined that they acted with intent to kill, the murder charges would not have been dropped, resulting in them being punished for more than one criminal offense. This is due to the fact that a conviction pursuant to § 315d StGB does not replace a murder conviction. ^{Footnote 77} Pursuant to § 52 (I) StGB, if the act of an offender violates more than one criminal statute, only one penalty is imposed.

The penalty for murder is life imprisonment, while the penalty for participating in an illegal car race that causes another person’s death or serious damage to another person’s health is imprisonment for a term of between one year and ten years. Under § 52 (II) StGB, in cases of several offenses committed by one act, the penalty is determined according to the statute which provides for the most severe penalty. In the end, this means that even if § 315d had been in force, H and N could have also been convicted for murder and sentenced to life imprisonment.

Nevertheless, it can be assumed that the existence of § 315d StGB at the time of the collision would have evaded the issue that a sentence of maximum five years for negligent manslaughter appeared too low, but that the alternative sentence for murder—life imprisonment—appeared to many as too harsh.

IV. Critical Assessment of § 315d StGB

While the creation of § 315d StGB in principle was met with approval, ^{Footnote 78} the content of § 315d StGB was—and still is—rather controversial. During such illegal car races, numerous traffic rules and speed limits are wantonly and grossly flouted. The danger thereby created is increased when two or more vehicles are competing with each other as they distract and provoke each other.

Criticism of § 315d StGB was expressed in relation to § 315d (I) No. 2 StGB, because not every form of conduct mentioned therein justifiably deserves a criminal sanction. These are, for example, races which take part late at night on a deserted road, where the participants ensure that they do not pose any risk to other road users. ^{Footnote 79} In addition, the wording of the law suggests that a race where the participants comply with traffic regulations can also be punished by § 315d StGB. ^{Footnote 80} Problems arise in relation to § 315d (I) No. 3 StGB, where the term “achievement of the highest possible speed” is not clearly specified. There is thus no clear distinction between massive speeding—which is not punishable—and a race against yourself, which is covered by § 315d (I) No. 3 StGB. ^{Footnote 81} It must be welcomed, however, that vehicles used to commit an offense under § 315d StGB can be confiscated. Furthermore, engaging in unauthorized vehicle races will be included in the catalogue of offenses that result in the revocation of a person’s driving license.

Over time, the jurisprudence and judicial practice will shape the new law and clarify any ambiguities or application problems; this is what has happened to date. Since coming into force, § 315d StGB has already been applied in several cases—one of which the conviction has already been quashed by the appellate court. In their reasoning, the courts completely contradicted each other concerning the interpretation of the term “highest possible speed.” The LG Berlin, on the one hand, stated that the intention to achieve the highest possible speed does not require reaching the maximum speed of the vehicle, but rather the highest possible speed from the offender’s point of view.Footnote ⁸² The Regional Court Stade (Landgericht (LG) Stade), on the other hand, ruled that in contrast to mere speeding, a race is only present when the driver extends his vehicle to its technical and physical limits.Footnote ⁸³

In another case, the Higher Regional Court Stuttgart (Oberlandesgericht (OLG) Stuttgart) held that cases of “Polizeiflucht”—a situation where a suspect is trying to flee from the police in a vehicle—may also be punished under § 315d (I) No. 3 StGB, as the suspect was—in this instance—acting with the intent to achieve the highest possible speed in order to escape.Footnote ⁸⁴

The most significant case to date is arguably the one tried in front of the District Court Villingen-Schwenningen (Amtsgericht (AG) Villingen-Schwenningen). The reason for this is not due to the circumstances of the case but rather because of the court’s decision to suspend the proceedings and to submit the case to the Federal Constitutional Court (Bundesverfassungsgericht; BVerfG) to examine its conformity with the German Constitution (Grundgesetz; GG),Footnote ⁸⁵ on the grounds that the District Court was convinced that § 315d StGB was unconstitutional in relation to the principle of legal certainty (Bestimmtheitsgrundsatz).

The principle of legal certainty—with regard to criminal law—is defined in Article 103(II) GG and in § 1 StGB. The legislator is obliged to describe the scope of criminal liability as precisely as possible so that a layperson is able to construe the scope of a criminal offense directly from the law itself. In this context, the AG Villingen-Schwenningen decided that, though the elements “inappropriate speed,” “in gross violation,” and “carelessly” can be differentiated from each other and their legal meaning can be determined because there are many higher judicial decisions that shaped them, ^{Footnote 86} the legal meaning of the element “in order to achieve maximum speed” cannot be determined by the interpretation methods known to German law. ^{Footnote 87}

Should the BVerfG decide that § 315d StGB is unconstitutional, it will naturally have an enormous impact on all cases already tried on the basis of § 315d StGB. Rendering this, and any, provision void has a retroactive effect—meaning that it must be treated as if the law had never been enacted. ^{Footnote 88} At the time of this writing, a decision by the BVerfG is still pending.