A decision of the German Amtsgericht Essen-Borbeck, which as a court of first instance deals with both criminal and civil cases, recently became world news. For example NOS, BBC News, der Spiegel Online, and the New York Times all reported about it. It became apparent to me after telephoning the court that the judgment has not been published yet, meaning that my writing will be based on these news items, and that it concerns a criminal case. The latter is important as news on court decisions (including terms such as ‘prosecutor’ and ‘fine’) should be interpreted with care especially when the court in question also has civil jurisdiction. Moreover, given the legal topic in this case (liability for omissions, i.e. liability that is not based on an act but on a failure to act, and duty to rescue), it could very well have been a civil case.

What had happened?
A 83-year-old man suffered severe brain damage due to a fall in a bank. Surveillance cameras recorded four people passing him by without offering help while he lay unconscious on the floor next to the cash machines. It was another 20 minutes before a fifth customer called an ambulance. The man was brought to a hospital where he died one week later. A medical report then showed that the lack of assistance did not (even partly) contribute to the man’s unfortunate death; his injury was so serious that he would have died anyhow.

Still, the refusal to help had certain consequences for three of the four ‘bystanders’ (the fourth was excused for medical reasons), who were suddenly considered criminal defendants and declared before the court that they believed the man was homeless and sleeping. The court imposed criminal fines on them ranging from 2400 to 3600 euros.

Liability – both criminal and civil – for omissions is generally problematic and can in principle only be established when there was a duty to act. This duty can for example result from a special relationship – think of employers who have a duty to prevent their employees from causing damage to third parties and doctors who have a duty to provide medical care when necessary – or from a statute. A clear example of a so-called statutory omission is article 450 of the Dutch criminal code, which penalizes the omission of a bystander to help someone in peril of death. A comparable provision in German law is § 323c, subsection 1, Strafgesetzbuch:

Wer bei Unglücksfällen oder gemeiner Gefahr oder Not nicht Hilfe leistet, obwohl dies erforderlich und ihm den Umständen nach zuzumuten, insbesondere ohne erhebliche eigene Gefahr und ohne Verletzung anderer wichtiger Pflichten möglich ist, wird mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bestraft.

This provision probably forms the legal basis of the court’s decision, which I am looking forward to reading and sharing with you in due time. Anyway, it is not surprising that the case received quite some media attention. In fact, it raises a number of important legal questions. What exactly is the legal basis and which arguments does the court use to establish a duty to rescue in this particular case? What does this case mean for the duty to rescue, both in criminal law and in civil law: does it for instance lower the threshold to impose liability? Why did the prosecutor initiate a criminal case (where imposed fines usually go to the treasury)? Was there no possibility for civil proceedings (where damages could have been awarded to surviving relatives)? What about holding the bank liable (instead of its customers)? And lastly, which reason(s) does the court give for awarding such substantial or, according to BBC news, ‘heavy’ fines?

Indeed, it would be interesting to read the exact argumentation of the court, but it is clear to me already that the court wants to send a clear message. The public prosecutor is quoted by der Spiegel as follows:

“Die solidarische Pflicht, Mitmenschen zu helfen, ist in besonderem Ausmaß verletzt worden”, hatte Staatsanwältin Nina Rezai in ihrem Plädoyer gesagt. Mit der Strafe müsse ein deutliches Zeichen gesetzt werden, “dass wir uns nicht in Richtung einer wegsehenden Gesellschaft bewegen”.

Monetary sanctions are used here as an instrument to contribute to general and special prevention, punishment as well as law enforcement. At all costs, we do not want ‘einer wegsehenden Gesellschaft’, a society that looks away.

 This blog was written by Lotte Meurkens
 Published on Law Blogs Maastricht and MEPLI