When Consent is Not Enough: Gangs, Public Policy and Criminal Law in Germany
| Author | Anni Pues |
| Published date | 01 August 2013 |
| Date | 01 August 2013 |
| DOI | http://doi.org/10.1350/jcla.2013.77.4.853 |
| Subject Matter | German Federal Court of Justice (Bundesgerichtshof—BGH) |
German Federal Court of Justice
(Bundesgerichtshof—BGH)
When Consent Is Not Enough: Gangs, Public Policy and
Criminal Law in Germany
Case No. 1 StR 585/12 (20 February 2013)
Keywords Consent; Germany; Public policy; Hooligans; Gang-related
violence
The District Court at Stuttgart convicted three men of causing bodily
harm by dangerous means (gefährliche Körperverletzung) under s. 224 of
the German Criminal Code (Strafgesetzbuch—StGB). The defendants were
members of a youth gang who agreed to a fight with another group of
young people following mutual provocation. The tacit agreement
among the participants included fist-fighting and kicking, taking into
account the possibility of serious injuries. In the course of the events in
question some members of the group opposing the defendants were
seriously injured. One person had to be treated in hospital for three
days, initially in an intensive care unit.
The court convicted the defendants for their own individual actions
and the actions of their group—their responsibility arose from joint
commission—for jointly causing bodily harm under s. 224 StGB. The
court did not accept the defence that participants had all consented to
fist-fighting and kicking. It found that these acts violated public policy,
notwithstanding the consent. The defendants appealed, arguing that the
court had erred by not accepting the defence of consent as a
justification.
H
ELD
,
DISMISSING THE APPEAL
, whenever rival groups are involved in
fighting and causing bodily harm, the defence of consent has to be
limited for public policy reasons because of the specific danger of escalat-
ing violence which these fights entail. If there is a lack of specific rules
and supervisory mechanisms to ensure compliance, the defence of
consent is not applicable for bodily harm caused in such fights. This is
the case even if the injuries are not potentially lethal.
C
OMMENTARY
The decision adds another interesting facet to the problem of how to
determine the boundaries of consent as a defence to non-fatal offences
against the person. The BGH clarified that for public policy reasons the
defence of consent was not applicable in cases of potentially serious
bodily harm. This will have an impact on all forms of group fighting—for
example, violence involving ‘hooligans’, such as those who engage in
group fights around football matches.
The volatile dynamics of group fights are seen as a danger in them-
selves, given the tendency for things to get out of control quickly. Even
296 The Journal of Criminal Law (2013) 77 JCL 296–298
doi:10.1350/jcla.2013.77.4.853
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