Focus Rule of Law – Police violence: Epileptic seizure after use of pepper spray, proceedings discontinued by Tiergarten County Court under sec. 153a (2) StPO (Published on 02/03/2023, latest update on 15/11/2024)

One of the worst police assaults known here occurred during demonstrations against an amendment to the Infection Protection Act (“Infektionsschutzgesetz”) by the “Fourth Law for the Protection of the Population in the Event of an Epidemic Situation of National Significance” („Viertes Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite“) in Berlin on 21 April 2021.

Following a blow to the head with a pepper spray canister and a close-range spray directly to the face by a member of the Berlin police the man concerned went down and suffered an epileptic seizure. The police officers standing in the immediate vicinity initially made no effort to help the convulsing man.

The incident was documented on film by Markus Hoffmann on his website doku.video under the title “Police attack with pepper spray, Berlin, 21/04/2021” („Polizeiangriff mit Pfefferspray, Berlin, 21.04.2021“). In May 2021, I had filed a criminal complaint against the police officers involved for assault and for failure to render assistance with reference to this documentation. 

As the public prosecutor’s office recently indicated, it has filed charges for assault against one of these police officers at the Tiergarten County Court. According to information from the court, the main hearing will take place there on 09/03/2023, the hearing is expected to be public (docket no. (271 Ds) 232 Js 4415/21 (166/22)).

This is the first of several cases of police violence for which criminal complaints were filed from here in which charges have been brought. It remains to be seen what the outcome of the proceedings is going to be.

Procedural documents related to the case cannot be published at this time (cf. sec. 353d no. 3 of the German Criminal Code (“StGB”)).

Addendum (Published on 11/10/2024):

As was recently announced, the previously postponed main hearing before the Tiergarten County Court in the criminal case against the police officer will now take place on Thursday, 31/10/2024 at 9:00 a.m. in room A101. Anyone wishing to attend the hearing as a spectator should confirm the date and the room by telephone with the court before setting off, as changes can always be made at short notice.

Addendum (Published on 15/11/2024):

As the Epoch Times reported in detail [link to archive] on 08/11/2024, the Tiergarten County Court has discontinued the proceedings against the accused police officer – in addition to the case described here, another one was being prosecuted in these proceedings – against payment of a fine of EUR 6,000, half of which to be paid to the injured, in accordance with sec. 153a (2) of the German Criminal Procedure Act (“Strafprozessordnung”, “StPO”) by means of an incontestable order. This concludes the proceedings.

The outcome of the proceedings is as unsatisfactory as it is remarkable, and after the proceedings have now been concluded it is possible to report on the case in more detail:

With regard to the actions described above, I had filed a criminal complaint with the Berlin public prosecutor’s office on 06/05/2021. The latter confirmed receipt of the complaint in a letter dated 14/05/2021, after which nothing happened for around 18 months; in response to inquiries about the status of the case, I was informed that the investigation was ongoing. In a letter dated 21/11/2022, the investigating public prosecutor announced that charges of assault in office had now been brought against the accused.

In response to an application for information from the file (sec. 475 (1) 1 StPO) (excerpt), the responsible judge at the Tiergarten County Court informed me in June 2023 that the statement of charges had been received there on 25/11/2022 and that discussions had been held in December 2022 between the court, the public prosecutor’s office and the defense about discontinuing the proceedings in return for payment of a fine in accordance with sec. 153a (2) StPO. The public prosecutor’s office had initially signaled its consent to such an approach, but had distanced itself from doing so in January 2023 without giving reasons.

The final outcome of the proceedings, the discontinuation of the criminal proceedings against the police officer pursuant to Section 153a (2) StPO, therefore only corresponds to what the court and the public prosecutor’s office apparently intended from the outset. The question is why the public prosecutor’s office backed away from its – according to the Tiergarten County Court – initially envisaged approval of this procedure, only to agree to it around two years later. Did they first want to allow some time to pass before settling the matter – as was apparently intended from the outset – without further clarification and, above all, without a criminal assessment of the conduct of the accused police officer “on the short official route”?

In any case, the prerequisite for such a procedure would be that the public interest in the prosecution and the seriousness of the guilt do not stand in the way (see sec. 153a (1) StPO). It is at least doubtful that both are the case here. However, it is sufficient that the court, the public prosecutor’s office and the accused agree on this, which was the case – apparently from the outset.

After all, this again leaves an extremely bland aftertaste and reinforces the impression that the organs of the constitutional state are not interested in prosecuting the obviously excessive use of force by the police – the case of the elderly lady who died in Berlin or the use of a so-called “head lever technique” against a 71-year-old man in Landau spring to mind. This benevolence on part of the public prosecutor’s offices and the courts, which is as strange as it is unlawful, is likely to only encourage excessively violent police action in the future.

(Head picture:
After the described incident on 21 April 2021 in Berlin,
source: Markus Hoffmann, doku.video/pfefferspray)

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