Does the "speeder paragraph" also apply to races against oneself? the federal court of justice has confirmed that. lawyers for traffic law are nevertheless skeptical.
The video is speechless: the czech multimillionaire radim passer is raced across a german autobahn at 417 kilometers per hour – and filmed the ride for a youtube video. In the infobox of the video, he describes the conditions as follows: "the section of the A2 had three lanes, went straight for ten kilometers with a slight downward slope in the middle, and there was visibility over the entire section."
The ministry of transport under volker wissing (FDP) had already expressed its criticism of the driver’s behavior to the AP news agency, now the police is also investigating. But is the czech’s behavior actually punishable?? And if so, why?
In the event of an accident, the lawyer christian solmecke explains in a youtube video. As soon as one speed limit of 130 kilometers per hour exceeds, the insurance cover also falls away. Motorists could be held liable for damages under civil law and would automatically be held partly responsible for accidents.
The speed limit is a mere recommendation and the excess would not affect criminal law for the time being, also emphasizes the berlin law firm kirstein on tagesspiegel inquiry.
It also refers to paragraphs 1 and 3 of the road traffic regulations. It states, among other things:
- "participation in road traffic requires constant caution and mutual consideration." (§ 1)
- "whoever drives a vehicle may only drive so fast that the vehicle is constantly dominated." (§ 3)
Solmecke also mentions paragraph 315d of the penal code: the so-called "speeding paragraph". This was introduced in 2017 after a spate of fatal accidents, such as the one on kurfurstendamm in Berlin in 2016. Does this make it possible to convict passers?
"prohibited motor vehicle racing"
leif hermann kroll, an attorney for traffic law in berlin, also refers to the criminal law paragraph on "prohibited motor vehicle racing". This states: "anyone driving in road traffic
- organizes or carries out a motor vehicle race that is not permitted,
- As a motor vehicle driver participates in a motor vehicle race that is not permitted or
- As a driver of a motor vehicle, you are moving at an inappropriate speed and in a grossly irregular and reckless manner in order to achieve the highest possible speed,
Punishable by imprisonment of up to two years or a fine."
"in races against others, it’s easy," says kroll. such fall under the first two points of the paragraph. But the criminal law also knows racing against themselves – THE THIRD POINT. It is only more difficult to make him legally arrestable. "the criteria of the highest possible speed and gross violation of traffic regulations are certainly given in the present case. But for that of the reckless behavior the legislator has set high hurdles."
In kroll’s view, it is not mandatory for drivers to accept accidents and the death of passengers at speeds of 417 kilometers per hour. Because the traffic participants in the right lane would have to look in the rearview mirror anyway before they overtake. "this is certainly a case-by-case issue. But it must be recognizable when the punishability begins."
For this reason, the villingen-schwenningen local court submitted the new law to the federal constitutional court for review in 2020. In this particular case, a driver fled from the police at speeds of up to 100 km/h before causing an accident.
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Could the driver brake in time?
the kirstein law firm also emphasizes that a concrete decision depends on the individual case: "that can only be answered by an expert opinion that takes into account that this was not a small car with drum brakes, but rather an technically highly equipped super sports car with appropriately equipped braking system."
That the driver could have braked in time, she writes, does seem "at least extremely doubtful". nevertheless, the principle applies: "in doubt for the accused!"
in a comment under passers video his team refers to an alleged calculated braking distance of 490 meters, if the car is stopped from 400 km/h to speed zero. But in addition there is the time to even perceive possible obstacles.
Accident researcher siegfried brockmann, on the other hand, told the "spiegel" that he expects the following, including reaction time almost a kilometer of stopping distance. "it is absolute theory that you can still stop there in time".
Federal judges take a clear view of the "speeding law"
In contrast to attorney kroll, judge carsten krumm gives a relatively clear assessment of radim passer’s behavior in a blog entry: "i think, that if the speed limit is exceeded more than 3 times regardless of any individual traffic situation an area has been reached which constitutes a race within the meaning of the above-mentioned regulation."
in february 2021, the federal court of justice also confirmed the "speeding law" for the first time – after a fatal car race in stuttgart’s city center. The decision states, among other things, that the act must be "motivated by the intention of the offender to reach the maximum possible speed under the specific situational conditions" in the sense of an excessive inner tendency.
Lawyer david thieme, on the other hand, considers the paragraph to be "knitted with a hot needle". If you asked a hundred people if there could ever be a race against themselves, ninety-nine would answer in the negative, he says. But is radim passer, if not racing against others, then at least racing for others? Its video has been viewed by more than seven million people.
"there has to be a concrete potential danger," says thieme. Otherwise, a speed of 250 kilometers per hour would have to be considered a punishable offense. " there is a similar danger."
High, higher, highest speed?
Stopping the vehicle at this speed, as is customary in many segments of the automobile market, the manufacturer bugatti does not consider this to be necessary. In the super sports car segment, no one does that, the company replied to the "spiegel" upon request.
Also the law firm kirstein doubts that the millionaire will really be sentenced. " experienced defenders could certainly counter this with a number of arguments. " the "speeding" paragraph is really formulated too vaguely? Among other things, the lawyers suggest that the state should "prescribe maximum speeds on highways".