Focus Rule of Law – Police violence: Elderly lady apparently died after measures taken by Berlin state police, Berlin public prosecutor’s office closes investigation (Published on 31/07/2022, latest update on 22/01/2024)
I. Demonstrations in Berlin on 21 April 2021 and the proportionality of police action
These were disturbing scenes that took place in Berlin on 21 April 2021 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 a heated atmosphere, police officers in protective gear with closed helmet visors intervened against demonstrators with partly intense physical violence, documented in various video recordings (e.g. here, here [tellingly Youtube demands proof of age for review] and here) as well as reports from people present on site (e. g. that on reitschuster.de here [in German language]).
Not all of the video recordings show whether there may be a history for the sometimes harsh interventions of individual police officers, but the principle of proportionality as one of the core constitutional principles for lawful state activities must be strictly observed in all police actions.
This is also expressly provided for in the “General Law for the Protection of Public Safety and Order in Berlin” (“Allgemeines Gesetz zum Schutz der öffentlichen Sicherheit und Ordnung in Berlin”, “ASOG Bln”), which regulates the actions of the police in the federal state of Berlin. The first two paragraphs of sec. 11 ASOG Bln read (translated from German language):
“(1) Of several possible and suitable measures, the regulatory authorities and the police shall take the one that is likely to cause the least harm to the individual and the general public.
(2) A measure may not lead to a disadvantage that is recognizably disproportionate to the desired result.”
II. Action by Berlin state police against an elderly lady
This being said, in the footage of the police crackdown on protesters on 21 April 2021, one incident stands out as particularly disturbing (seen in the video recording here starting at Min 00:34):
An elderly lady, certainly beyond 70 years of age, is lying on the ground in a passageway through a police barrier. A policeman of the Berlin state police, easily recognizable by the corresponding uniform markings, grabs the lady with both hands by her left arm and drags the visibly shocked woman several meters by her outstretched arm across the ground out of the way. There she is surrounded by five to six policemen and straightened up. Subsequently, she is fixed by two more police officers by means of a police grip on each arm and, accompanied by – as far as can be seen in the video recording -another four police officers, she is quickly taken away on foot, apparently for identification treatment. The lady makes several sounds of pain and expresses – partly with a pain-distorted face – that she cannot keep up with the speed set by the police officers. The police officers nevertheless maintain their walking speed unmoved, so that the elderly lady stumbles several times and is only held by her fixation on the part of the police officers. Then the video recording of the event ends.
From the point of view of the author, this action of the Berlin state police against an elderly person was and is grossly disproportionate and thus a matter for the public prosecutor’s office.
III. Criminal complaint against the police officers involved in the incident for assault
On 4 May 2021, I therefore filed a criminal complaint (German language) against the police officers involved in the incident, in particular for assault, and asked to be informed about the outcome of the investigation.
In a letter dated 12 May 2021 (German language), the Berlin public prosecutor’s office informed me of the docket number of the proceedings, which were initially conducted against unknown persons. After that, nothing happened at first. Inquiries about the state of affairs on 3 November 2021, and 8 April 2022 were not answered.
IV. Investigation by the Berlin public prosecutor’s office for negligent homicide, discontinuation of proceedings
On 12 July 2022, around 14 months after filing the criminal complaint, I received a letter from the Berlin public prosecutor’s office dated 1 July 2022 (German language), stating that they did not see sufficient factual indications of a criminal offense and had therefore discontinued the investigation.
1. The elderly lady died
When reviewing the very superficial and incomplete notice, it was first noticed that investigations were apparently only conducted against one of the police officers involved in the incident, while the criminal complaint had been explicitly directed against all police officers involved in the action against the lady. In addition, it was astonishing that the original charge of assault had been extended to negligent homicide. Since at least I had no knowledge of a deceased person up to that point, I initially assumed a mistake. Wrongly, as became apparent upon further study of the notification.
The elderly lady apparently actually died in connection with the police actions against her!
2. The elderly lady had a brain hemorrhage at the time of her death
After introductory platitudes, the third paragraph of the letter from the Berlin public prosecutor’s office indirectly mentions the death of the lady by pointing out an autopsy and its results. It says there on p. 1 (translated from German language):
“As a result of the forensic autopsy, the experts commissioned from here, Prof. Dr. med. [redacted by the author] and Ms. [redacted by the author], were able to establish that the deceased died as a result of multiple organ failure with severe previous damage.”
A responsibility of the accused police officer could not be established (translated from German language):
“First of all, it remains to be stated that it could already not be established with the necessary certainty that the action of the defendant set a causal cause for this death at all.”
In passing, the Berlin public prosecutor’s office also mentions that the elderly lady had a subdural hemorrhage at the time of her death, i.e. a hemorrhage between the hard meninges and the brain. The causes of this hemorrhage are only succinctly stated (translated from German language):
“In particular, from a forensic medical point of view, no reliable findings could be made as to whether the subdural hemorrhage that occurred was a consequence of the police action at all or whether it was connected with the occurrence of death at all.”
3. Berlin public prosecutor’s office: “The actions by the accused were justified”
Following the explanations about the death of the lady, the Berlin public prosecutor’s office also deals with the events that were originally the reason for my criminal complaint, namely the dragging away of the lady and the manner how she was being led away in police fixation. To this is explained on p. 2 of the letter (translated from German language):
“On 21 April 2021, a large number of registered and unregistered demonstrations by people from the environment of the so-called ‘Querdenker’ took place in the area of ‘Platz des 18. März’ in 10117 Berlin. In the course of one of these demonstrations, Berlin state police officers set up a cordon in order to sanction violations of the Infection Protection Act and to take the relevant suspects to a police processing car for identification purposes. A passage point in this blocking chain was blocked by the later deceased. The accused therefore verbally requested the later deceased to clear the area, as only in this way could the persons concerned be taken to the processing vehicle. When the later deceased did not comply with this request, the accused grabbed the later deceased and pushed her aside. In the process, the later deceased immediately lashed out with her right fist and struck the accused’s chest. As a result of this action, the accused seized the later deceased and also took her behind the barrier chain in order to establish her identity. A little later, the later deceased fell to the ground. Since she was also blocking the passage there, the accused pulled the later deceased out of the way. Subsequently, she was lifted again, fixed and taken to the processing vehicle.”
So the Berlin public prosecutor’s office refers to an alleged use of force of the elderly lady against the accused policeman – who was dressed in full protective equipment including a closed helmet visor – by a fist blow against his chest. If this were true and the intensity of the “blow” had exceeded the petty limit – the latter can already be doubted – it would possibly be a reason to take her particulars and, if necessary, to start investigations into possible criminal liability against her. However, this is irrelevant for the treatment of the lady by the police. This treatment must nevertheless be carried out in full accordance with the principle of proportionality, i.e. by the mildest suitable means (sec 11(1) ASOG Bln) and by avoiding disadvantages that are recognizably disproportionate to the desired result (sec. 11(2) ASOG Bln). It must be taken into account that the elderly lady obviously did not pose any relevant danger, but that she herself required an increased consideration for her health due to her advanced age. Therefore, explanations by the Berlin public prosecutor’s office would be expected, why they regard the dragging away of the lady by her stretched out arm and the manner how she was led away in police fixation and under pain in particular in view of her age and her physical condition as proportionate with regard to the intended identification.
None of this takes place. The Berlin public prosecutor’s office lumps the two incidents together and makes a sweeping statement that it was a lawful measure and that milder means were not available. Their wording is the following (spelling errors in the original, translation from German language):
“The act of the accused was therefore a lawful deprivation of liberty for the purpose of establishing the identity pursuant to sec. 163b of the Criminal Procedure Act. There was the suspicion of a criminal offense – an attempted assault to the detriment of the accused as well as resistance against law enforcement officers – and the identity of the later deceased was unknown. There were no milder and equally suitable means available for establishment of identity. The later deceased first had to be seized, restrained and taken to the processing site. This was not possible without the use of direct force.”
As a consequence, the Berlin public prosecutor’s office could recognize criminal offences neither in connection with the death of the older lady, nor with their preceding treatment by the police and closed the investigation.
V. Assessment
The notification of the Berlin public prosecutor’s office is no more than an insubstantial and questionable fig leaf of criminal law for a shocking incident in connection with which an elderly lady lost her life.
1. Is there possibly an “unsuspicious” cause of death?
First of all, it is worthwhile wondering whether there could be an explanation for the death of the lady, unconnected with police actions. However, the original accusation of assault would hardly have been extended to negligent homicide and the death of the lady would not have been made the subject of the notification by the Berlin public prosecutor’s office if there had been no connection whatsoever with police actions. The public prosecutor’s office themselves establish a link between the lady’s death and the accused police officer when they state that “it could not be established with the necessary certainty” that the latter’s conduct caused or contributed to the death. The same applies to the cerebral hemorrhage suffered by the lady. Here as well, it is the public prosecutor’s office that raises, inter alia, the question of whether the subdural hemorrhage suffered by the lady “was a consequence of the police action”. If there were no connection whatsoever between the death of the lady or her cerebral hemorrhage and police action, there would be no need for the Berlin public prosecutor’s office to make any corresponding explanations.
2. Decision of the Berlin Public Prosecutor‘s Office “in dubio pro reo”
Similarly remarkable is the result of the prosecutor’s examination, which does not exclude a causality of police action for the injuries and the death of the elderly lady, but only states that the death “could not be attributed with the necessary certainty” to a behavior of the accused police officer and that with regard to the brain hemorrhage suffered by the lady “from a forensic medical point of view, no certain findings could be made” as to whether this was a consequence of the police action or had any influence at all on the occurrence of death. Here, in application of the presumption of innocence (“in dubio pro reo”), the accused is given the benefit of the doubt because proof of a criminal conduct – allegedly – cannot be reliably provided. Conversely, however, this means that the public prosecutor’s office cannot rule out the possibility that both the death and the injury were caused by police actions. However, in criminal law terms, this is not sufficient for an indictment.
3. Lack of milder means of equal suitability?
Equally insubstantial is the statement by the Berlin public prosecutor’s office that there were “no milder and equally suitable means available for establishing identity”; and that the elderly lady first had to be seized, restrained and taken to the processing center, which would not have been possible without the use of direct force. These remarks obviously miss the point. Even if all these allegations by the public prosecutor’s office were true and the use of direct force was necessary to establish the identity of the elderly lady, there are apparently milder means available to achieve this, while at the same time – as prescribed, for example, by sec. 11 ASOG Bln – preserving her health. The fact that the acting police forces were, for instance, very well able to lift the lady up from the ground and escort her out of the passageway can already be seen from the video recordings (cf. here from min 00:50), so that it was, of course, not necessary to drag her away by her outstretched arm. The same applies to the manner how she was led away. Here, too, the walking speed could easily have been reduced and adapted to the lady’s age and obvious infirmities.
4. What now?
With the recognizably meager decision by the Berlin public prosecutor’s office to discontinue the criminal investigation this matter is not closed. For a state pretending to abide by the rule of law, it is unacceptable that police forces act against elderly, infirm people with an obviously unreasonable harshness and fatal consequences, only to be issued – after a recognizably poor examination – carte blanche by the public prosecutor’s office, not even having to face a judicial review of their behavior. A red line has clearly been crossed here, and the matter will have to be fully clarified.
* * *
First addendum
(published on 10/11/2022):
While the actions of the Berlin police against the elderly lady and her subsequent death have so far – as far as can be seen – been completely ignored by the “mainstream” media, various alternative channels have reported on this in detail (cf., for instance, the reports of 04/08/2022 on reitschuster.de [German language], that of 05/08/2022 on epochtimes.de [German language] or that of 25/08/2022 on auf1.tv [German language]).
Unfortunately, the identity of the lady who died is still unknown.
At the end of the article of 31/07/2022 I had promised to further clarify the incident to the best of my ability. Since then, various measures have been taken to achieve this.
I. Supervision appeal (“Fachaufsichtsbeschwerde”) from 26/08/2022
One of these was a supervision appeal [German language] filed on 26/08/2022 against the discontinuation notice (German language , afterwards “EB”) issued by the Berlin Public Prosecutor’s Office, with the aim of reopening the investigations.
1. Incompleteness of the investigations
The first reason cited in the appeal was the apparent incompleteness of the investigations, which had been directed against only one police officer at all, while in any case at least two of them had been involved in taking away the elderly lady, and the criminal complaint had been expressly directed against all police officers involved.
2. The accusation of negligent homicide
Furthermore, the findings on the charge of negligent homicide were objected to. It had been excluded in the discontinuation notice on the grounds that “it could already not be established with the necessary certainty that the action of the accused set a causal cause for this death at all” (p. 1, last para. EB, translation from German language, emphasis added). Anyone reading the notice carefully will see that nowhere is it specified in more detail which “action of the accused” is referenced here. In any case, in the publicly available video recordings of the police activities – the following is based on the one shown on reitschuster.de –, no action can be recognized that could be designated as a potential act of killing. To which “act of the accused” does the Berlin Public Prosecutor’s Office therefore refer when they state that its causality of death could not be established? Did this act possibly occur only in the course of the actual establishment of identity in the custody of the police and thus beyond the publicly known video documentation? The appeal criticized, among other things, this ambiguity, due to which it also remains completely open, why at all (and possibly “only”) a negligent homicide was examined and how this may possibly have been committed.
3. The accusation of assault
Furthermore, with regard to the dragging away of the lady, the assertion of the Berlin Public Prosecutor’s Office was criticized that there had been “no milder and equally suitable means available for establishment of identity” (translation from German language). With reference to the pain repeatedly communicated by the lady while she was led away and her apparent frailty of health, it was pointed out that in view of her obvious defenselessness, neither her fixation nor the hasty speed were necessary to successfully carry out the intended establishment of her identity. Beyond doubt, this could have been achieved even without fixation and if she had been taken away at a speed appropriate to her age and state of health.
II. Berlin Public Prosecutor’s Office refers the the appeal to the Prosecutor General’s Office
In a letter dated 27/09/2022 [German language], the Berlin Public Prosecutor’s Office stated that it had not remedied the appeal and had referred it to the Berlin General Prosecutor’s Office. Remarkably, virtually nothing in this one-sentence-letter is correct; for instance, all mentioned dates are wrong. Neither is the appeal, called “opposition”, dated 19/09/2022, nor does the decision subject of the appeal date from 26/08/2022. My file number is also cited incorrectly. One may dismiss this as a trivial matter, but in fact it gives a very deep insight into the standards of care that apply at this institution.
III. Rejection of the appeal by the Berlin General Prosecutor’s Office
In a letter dated 19/10/2022, the Berlin General Prosecutor’s Office rejected the appeal. At the beginning of the appeal decision (German language, afterwards “BB”), they indicated (p. 1, second para. BB, translation from German language):
“After examining the facts of the case through official supervision, I do not see myself in a position to order that further investigations be carried out, contrary to the contested decision. The Berlin Public Prosecutor’s Office has discontinued the proceedings for correct reasons. Your appeal is not suitable to justify a different resolution.”
1. The grounds of appeal remain unaddressed
This is followed by about three pages of statements in which the Berlin General Prosecutor’s Office does not elaborate on the reasons stated in the appeal, but instead primarily provides further information on the events and the underlying evidence. It thus remains the case that, amongst others, it is still completely unclear with regard to which action of the accused police officer the Berlin Public Prosecutor’s Office pursued the suspicion of negligent homicide. The Berlin General Prosecutor’s Office did not wish to provide further explanations on this aspect either. Nevertheless, the statements contain some interesting new information about the course of events, which, however, raise new questions.
2. The events leading up to the death of the elderly lady
According to the explanations of the Berlin General Prosecutor’s Office, the elderly lady died on 19/05/2021, after the following events (p. 1, fourth para. BB, translation from German language):
“The affected person went to inpatient treatment two days after the facts you reported [Note: That is on 23/04/2021] because she complained of severe headaches. On admission, in addition to abrasions to her shins and a pressure-painful bruise mark on her forehead, she was found to have a subdural cerebral hemorrhage, for which she underwent emergency surgery. As she stated on admission that she had sustained these injuries in the course of a demonstration by police officers, the police were alerted. After initially returning to normal, her condition subsequently deteriorated until, regrettably, she finally passed away on 19 May 2021.”
According to this, the elderly lady herself stated that her injuries had been caused by her treatment by the police. However, also in the opinion of the Berlin Prosecutor General’s Office, a causality of police behavior for the lady’s injuries cannot be proven (p. 2, first para. BB, translation from German language):
“As already stated by the Berlin Public Prosecutor’s Office in the above-mentioned notice, however, a causal connection between the events of 21 April 2021, reported by you and the injuries found, let alone the subdural hemorrhage, cannot be established with the available evidence.”
3. The evidence of the Berlin Prosecutor General’s Office
The Berlin Prosecutor General’s Office then go on to describe the evidence on which they base their assessment of the lack of provability of criminal action on the part of the police. They state (p. 2, second para. BB, translation from German language):
“Based on the available testimonial statements of police officers involved in the operation, the testimonies of hearsay witnesses, and the video footage of third parties and the police that has been placed on file, it is impossible to attribute already the external injuries of the victim, let alone the cerebral hemorrhage that was detected two days later, to the event known here.”
a) Testimony of police officers involved in the operation
Upon a closer look, it becomes clear that the questioned “police forces involved in the operation” are apparently exactly those two who also took the lady away, namely a police superintendent (“POK”) and a “police commissioner in training” (“PKA”). In any case, only their statements are mentioned in the decision of the Berlin Prosecutor General’s Office.
b) Heardsay witness
The only hearsay witness mentioned by the Berlin Prosecutor General’s Office is the niece of the elderly lady, who was unable to provide any further information.
c) No testimony from the elderly lady herself
Insofar as the Berlin Prosecutor General’s Office considers it important to point out that the elderly lady herself “did not provide any information on the facts of the case” (p. 2, last sentence BB, translation from German language), it remains open whether in view of her state of health, bearing in mind her hospitalization from 23/04/2021 with subsequent emergency surgery and the occurrence of death on 19/05/2021, she could be questioned about the events at all. This seems doubtful at least.
d) Video recordings
In addition, the Berlin Prosecutor General’s Office base their assessment on the “video footage of third parties and the police that has come into the files”. This video footage, however, only starts when the elderly lady goes down in the passage through the police cordon (p. 3, second para. BB). How far it covers the subsequent events would be important to know, but also remains open.
4. The events according to the statements of the police officers involved
Thus, it remains to be stated first of all that the facts on which the assessment of the Berlin Prosecutor General’s Office are based originate essentially from the two police officers directly involved in the case. How truthfully will they, especially the PKA who is still in training, describe the facts of the case when they themselves are threatened (among others) with criminal prosecution?
According to the Berlin Prosecutor General’s Office, these two witnesses provided the following information (p. 2/3 BB, translation from German language):
“The accused POK [name removed by the author] states that he and his group secured two arrests. In the process, the affected person and others stood in their way at a passageway, which is why he pushed the affected person to the side, among others. She is said to have immediately lashed out with her right fist and hit him against his right chest. Furthermore, he says that he thinks he remembers that the affected person tried to hit him in the face under his visor. He then pulled her towards him and together with her passed the passage. Immediately behind the culvert, the affected person went down, saying that she had stumbled. She made no effort to get up again. When he saw that a group of other colleagues were on their way to the culvert and had the impression that they had not noticed either him or the affected person, he quickly pulled the affected person out of the danger zone by her arm. In doing so, he wanted to prevent others from running over her or even stumbling and falling on her. On the way to the Bearbeiterstraße [remark: A restricted police area for the registration of persons accused of legal violations], various insulting remarks were made by the affected person. Since she had indicated to be heartsick, he had asked her whether she needed an ambulance. This was denied by her. When he arrived at the Bearbeiterstraße, he noticed a scratch on the forehead and a bloody spot on the lip of the affected person and again offered her to call an ambulance. However, she again rejected.
This information coincides with that of PKA [name removed by the author], who assisted the accused in pulling up and removing the affected person. The latter also states that, at the request of POK [name removed by the author], he applied a light pressure point to the hand of the affected person after she had resisted being taken away by lowering and slowing down.”
In addition, the video footage considered contained the following findings (p. 3, second para. BB, translation from German language):
“The video footage submitted to the files by different bodies only starts when the affected person goes down at the culvert. It can be seen that this happens without any external impact. The affected person falls on her buttocks, but is still able to keep her upper body above the ground, so that there is no impact of the head on the ground – let alone with the forehead. In fact, several police officers follow and it can be seen how the affected person is pulled out of the way – just in time. During her subsequent removal, the insulting remarks mentioned by the accused and the witness [PKA, name removed by the author] can be heard. It can also be seen that she braces or slows down somewhat, whereupon the police officer identified as PKA [name removed by author] presses her palm down.”
5. The assessment by the Berlin Prosecutor General’s Office
The Berlin Prosecutor General’s Office considers the submissions of the two police officers directly involved in the case to be consistent and credible and concludes that the Berlin Public Prosecutor’s Office was justified in discontinuing the investigations.
a) The accusation of negligent homicide
On the accusation of negligent homicide, it is stated (p. 3 BB, translation from German language):
“The injuries mentioned by the accused and the witness [PKA, name removed by the author] in the form of a scratch on the forehead and a bloody spot on the lip cannot be attributed to these events. Just as little a fall on the head, let alone an influence on the part of a police member on this is to be observed. Already on admission to the hospital, the attending physician stated that it was a fresh hemorrhage, although the term ‘fresh hemorrhage’ could not be determined to the day. It was possible that this bleeding had occurred as a result of a trauma suffered within a few days prior to detection, as well as that it was a spontaneous bleeding that had occurred without any specific cause. In order to clarify a possible connection between the police action and the hemorrhage, an autopsy was ordered after the affected person’s death became known. As a result, no evidence of a bleeding-related event causing death was found during the examination. However, serious pathological findings were found in other organs, which, however, could be attributed to previous diseases.”
The accusation of negligent homicide could therefore not be sustained.
b) The accusation of assault
The assessment of the Berlin Public Prosecutor’s Office, according to which there was no assault, was also considered not objectionable. The actions of the police officers were “justified in the concrete situation and also proportionate”, for which the Berlin General Prosecutor’s Office gives the following remarkable reasons (p. 4 EB, translation from German language):
“The mere fact that the affected person made statements that indicate unspecified pain does not make the measure illegal per se. Moreover, concrete injury consequences resulting from the measure cannot be proven.”
IV. Assessment
The statements in the decision of the Berlin General Prosecutor’s Office contain a variety of peculiarities, some of which do not even stand up to comparison with the publicly available video material.
1. From “in dubio pro reo” to proven innocence
First of all, it is noticeable that the decision taken by the Berlin Public Prosecutor’s Office to discontinue the investigations only in accordance with the principle of “in case of doubt for the accused” (“in dubio pro reo”) is not shared by the Berlin General Prosecutor’s Office.
While it was stated in the notice of discontinuation of the Berlin Public Prosecutor’s Office that “it could already not be established with the necessary certainty that the action of the defendant set a causal cause for this death at all” and that “from a forensic medical point of view, no reliable findings could be made as to whether the subdural hemorrhage that occurred was a consequence of the police action at all or whether it was connected with the occurrence of death at all” (p. 1, last para. EB, translation from German language, emphases added), the Berlin General Prosecutor’s Office conclude that “a causal connection between the events of 21 April 2021, reported by you and the injuries found, let alone the subdural hemorrhage, cannot be established with the available evidence” (p. 2, first para. BB, translation from German language, emphasis added). Also during the autopsy “no evidence of a bleeding-related event causing death was found” (p. 3, fifth para. BB, translation from German language, emphasis added).
Thus, contrary to the Public Prosecutor’s Office, the General Public Prosecutor’s Office Berlin assume innocence beyond doubt.
2. Credibility of testimonies of the police officers directly involved?
It is astonishing to see with what uncritical matter-of-factness the Berlin General Prosecutor’s Office blindly trust the statements of the two police officers directly involved and assumes them to be true across the board. Can one really assume without further ado that the statements made by the two police officers directly threatened with criminal liability (and any accompanying consequential sanctions) are unreservedly true and credible?
The publicly available video footage shows numerous other police officers who witnessed the event at close range without being directly involved (see video, from 1:00). At times, four other police officers alone were present during the taking away of the elderly lady. Why were they apparently not questioned, but only the two police officers directly involved? A human being has lost her life under very dubious circumstances and both the Public Prosecutor’s Office as well as the General Prosecutor’s Office in Berlin limit themselves to obtaining witness statements only from the two police officers directly involved, whose statements are then uncritically assumed to be complete and correct?
3. Discrepancies in the testimonies of the interrogated police officers
Already a comparison of the statements provided in the appeal decision with the events documented by video footage shows several assertions of the two questioned police officers to be at least doubtful. In the video recordings, the accused POK can be recognized – according to the understanding here – by the fact that he is marked with the designation “BE 36223” on his back and wears a black balaclava under his helmet, on the left side of his chest there is a kind of black ring with a bright red lid. He fixes the left arm of the lady. The PKA wears a white “FFP2” protective mask under his helmet, he fixes the lady’s right arm.
According to the Berlin General Prosecutor’s Office, the accused POK claimed that “on the way to the Bearbeiterstraße, various insulting remarks were made by the affected person” (p. 2, third para. BB, translation from German language). As far as can be seen, this “way to the Bearbeiterstraße” is fully documented in the publicly available video recordings, including sound. At one point, a breathless utterance of the lady can be heared, colored in Berlin dialect, which sounds like „Ich wollte Euch ja verprügeln. Laß det sein, Du Arsch.“ [“You say that I wanted to beat you up. Let it be, you ass.”] (cf. video, 1:33). However, it remains completely unclear to whom this is directed. Other statements that could be considered insulting cannot be heard. So where are the alleged “various insulting statements”? Apart from that: The accused POK wears a helmet with closed visor and a balaclava under it. How could he have reliably perceived the lady’s remarks under these conditions and in view of the background noise?
The accused POK is also said to have testified that upon arrival at the “Bearbeiterstraße” he noticed “a scratch on the forehead and a bloody spot on the lip” of the elderly lady (p. 2, third para. BB, translation from German language). However, at least in the publicly available video recordings, which according to the understanding here end shortly before the arrival at the “Bearbeiterstraße”, such injuries are not visible. So when are they supposed to have occurred?
According to the Berlin General Prosecutor’s Office, the interrogated PKA stated that he had “applied a light pressure point to the hand of the affected person” at the request of the POK, after the latter had “resisted being taken away by lowering and slowing down” (p. 2, fourth para. BB, translation from German language). The Berlin General Prosecutor’s Office state to have recognized this in the video footage available there (p. 3, third para. BB). This cannot be reconstructed at least in the publicly available video recordings. These show the accused POK putting the left wrist of the lady under pressure from the outset by bending it downward, while the PKA, who holds the right arm of the lady, does not do so; also towards the end of the recording nothing alike can be seen (see video, from 0:56):
How can these discrepancies in the statements be explained? Have they escaped the attention of the Public Prosecutor’s Office and of the Berlin General Prosecutor’s Office? Shouldn’t they not be a reason to critically assess the truth of the statements? Are these really supposed to be criminal investigations satisfying the principles of the rule of law, in particular the principle of legality under sec. 152 (2) of the German Code of Criminal Procedure?
4. The elderly lady indicated her heart disease to the acting police officers
According to the statement of the accused POK, the elderly lady is said to have stated that she has a heart condition (p. 2, third para. BB). Also during the video, she complains about the speed of her taking away with the words „Ich kann so nicht…mit dem Herz“ (“I cannot go on like this…with my heart“) (cf. video, 1:45). It is not clear from the appeal decision issued by the Berlin General Prosecutor’s Office when the lady first reported her heart disease. According to its contents, however, this seems to have happened before she was taken away to the “Bearbeiterstraße“. If this were the case, it would mean that the two police officers led the lady away in police fixation in full knowledge of her heart disease, thus possibly consciously accepting a damage of her health. Also here neither the Public Prosecutor’s Office nor the Berlin General Prosecutor’s Office seem to care. In any case, no efforts are apparent on their part to clarify the question, which is also not irrelevant to the overall context, of when the acting police officers were aware of the elderly lady’s heart disease.
5. “Undefined expressions of pain do not make the measure illegal per se”?
The statements by the Berlin General Prosecutor’s Office according to which the mere fact that the elderly lady, when being dragged away, “made statements that indicate unspecified pain” would not “make the measure illegal per se”, especially since “concrete injury consequences resulting from the measure cannot be proven” (p. 4 BB, translation from German language), are completely absurd already from a technical standpoint. Ethically and morally, they are an oath of revelation. It goes without saying that when an elderly person in particular expresses pain, especially one with a heart disease that is obviously known to the police protagonists, the question of proportionality of police action arises without further ado. It goes without saying that police action is not disproportionate only when the person affected suffers concrete injuries, this should not require any further discussion.
6. “The injuries cannot be attributed to these events”? Or: What happened to the elderly lady in the unobserved care of the police?
Overall, it is noticeable that both the Public Prosecutor’s Office as well as the Berlin General Prosecutor’s Office apparently limit their assessment to those incidents that are also shown in the publicly available video recordings, namely the events between the time when the lady was dragged away from the police cordon until she arrived at the “Bearbeiterstraße” for the purpose of establishing her identity. Although expressly raised in the appeal (cf. para. 7), the question of what events may have occurred there when the elderly lady was in the custody of the police, unobserved by the public, while her identity was being established, is still not addressed.
From this limited perspective, the Berlin General Prosecutor’s Office state that the injuries suffered by the elderly lady, which apparently refers to the “scratch on the forehead” and the “bloody spot on the lip”, “cannot be attributed to these events” – namely apparently to these documented by video. There is said to have neither been “a fall on the head, let alone an influence on the part of a police member”, which is apparently supposed to allow the conclusion that these injuries as well as the subdural hemorrhage and also the later death of the elderly lady were not caused by police behavior.
Actually, it should be obvious that the Public Prosecutor’s Office as well as the Berlin General Prosecutor’s Office should review for criminal behavior of police officers the entire time during which the elderly lady was in the custody of the police, i.e. beginning with her being dragged away from the passage in the police cordon until her release after her identity had been established. Instead, the assessment is apparently limited to only a section of the events, namely the one documented by the publicly available video recordings, as to which it is then stated that in this respect “a causal connection between the events of 21 April 2021 reported by you (…) cannot be established with the available evidence”, while no investigations are being made into the remaining events. However, if a part of the events is excluded from the investigations from the outset and, in addition, it is left open which action/s of the accused have been reviewed, the conclusion of allegedly not being able to prove a causal connection with the occurrence of death can be made without difficulty. Perhaps they trust in not having to answer questions that they does not ask in the first place.
V. What now?
In accordance with the principle of legality under sec. 152 (2) of the German Code of Criminal Procedure, the Public Prosecutor’s Office is generally obliged to intervene in respect of all prosecutable offences if there are sufficient factual indications. The principle of legality means a compulsory prosecution of every suspect and, if the relevant conditions are met, a compulsory indictment (cf. BVerfG, 23/07/1982 – 2 BvR 8/82 = NStZ 1982, 430). Incompatible with this is an obviously incomplete investigation of the overall events, as appears to have occurred in the present case. The fact that and why corresponding indications of criminal acts could exist in the present case, in particular in sequences of events that have apparently not been assessed yet, has been described here in detail. The Berlin General Prosecutor’s Office will therefore have to deal with the matter again.
* * *
Second addendum
(published on 15/01/2023):
Since the last report on the state of affairs on 10/11/2022, some news, both remarkable and disturbing, has emerged concerning the death of the – still unknown – elderly lady:
1. Most interesting: The investigations on the case were initially led by the so-called “Zentralstelle Hasskriminalität“ (“Central Unit Hate Crime“) (Department 231) of the public prosecutor’s office Berlin; so they apparently assumed that the elderly lady fell victim to a so-called “hate crime” (see more below under cipher I.)!
2. By means of a further supervision appeal (“Fachaufsichtsbeschwerde”) against the decision of the Berlin Prosecutor General’s Office not to order any further investigations, the matter was referred to the judicial administration of the Berlin Senate as the highest supervisory authority of the State of Berlin; this appeal was also rejected in a sweeping manner and without any consideration of its grounds (see cipher II.).
3. After the possibilities of a legal clarification of the case have now, as things stand, been exhausted, the matter will now be taken up politically; on 12/02/2023 the last election for the Berlin senate will take place (see cipher III.).
In detail:
I. The investigations were initially conducted by “Zentralstelle Hasskriminalität” (“Central Unit Hate Crime“) of the Berlin Public Prosecutor’s Office
Those who have followed the reporting on this page from the beginning will remember that the department responsible for processing the criminal complaint was originally Department 231 of the Berlin Public Prosecutor’s Office, as indicated by the file number 231 UJs 1135/21 in the corresponding confirmation of receipt. The discontinuation notice was then issued by Department 278, cf. the file number 278 Js 212/21 indicated therein.
It is not easy to determine which offenses these departments are responsible for in each case. While the business allocation plans that determine the internal jurisdiction of an authority must be publicly accessible in the case of courts (keyword: fundamental right to the lawful judge, Article 101 (1) 2 of the Grundgesetz), this is usually not the case with public prosecutors’ offices. There is no discernible legitimate reason why the internal distribution of jurisdiction of the public prosecutor’s offices should be withheld from the interested citizen.
1. The Berlin Public Prosecutor’s Office initially refuses to provide information about the responsibilities of the departments involved in the investigation
At the end of August 2022, the Berlin Public Prosecutor’s Office was asked, on the basis of the Freedom of Information Act of the State of Berlin, to provide written information on which responsibilities Departments 231 and 278 had in 2021 and which they have in 2022. The request was quickly rejected, stating that there was no entitlement to information from the business allocation plans. Upon the appeal against this decision, the information was finally made available, stating, however, that the responsibilities from 2021 were no longer known because the Berlin Public Prosecutor’s Office overwrites its business allocation plans every time there is a change. This may also be an interesting piece of information. From the information provided, it appears that Department 231 of the Berlin Public Prosecutor’s Office is the so-called “Zentralstelle Hasskriminalität” (“Central Unit Hate Crime“) and Department 278 conducts, among other things, proceedings against public officials on charges of negligent homicide.
2. The jurisdiction of “Zentralstelle Hasskriminalität” (“Central Unit Hate Crime“) of the Berlin Public Prosecutor’s Office
In the jurisdictional catalog of Department 231, “Hate crime” is defined as (translation from German language)
“Group-based misanthropy, the victims of which are attacked solely or primarily because of suspected or actual membership in a group, including but not limited to skin color, sexual identity or orientation, disability, racial ascription, nationality, ethnicity, political affiliation, religion, belief, origin, physical appearance, or social status.”
More details can be found on the website of this Department (link to archive). Interesting is also the leaflet offered there for download, in which, among other things, is explained strikingly (translation from German language):
“NO MATTER WHY YOU ARE INSULTED, HUMILIATED OR ATTACKED – IF YOU ARE A VICTIM OF A HATE CRIME, REPORT IT! WE CARE about you, …”
One wonders now, under which aspect the competence of this department for the investigations into the death of the elderly lady was initially assumed and why these were later transferred to Department 278. Why, in view of the facts described in the present criminal complaint of 04/05/2021, was it initially assumed that there was a “hate crime” against the elderly lady, which, according to the above-mentioned definition, necessarily requires an attack based on “group-based misanthropy”, which in the present case would necessarily have to have been committed by police officers? Was this assumption subsequently dropped – which could be indicated by the subsequent takeover of the investigation by Department 278 – and if so, why? Was the fate of the elderly lady suddenly of no importance to the Berlin Public Prosecutor’s Office, contrary to the statement in their fact sheet reproduced above? Do they perhaps predominantly pursue certain cases of “hate crime” while disregarding others?
In the present case, it seems that the jurisdiction of Department 231 can only be established based on two items of its jurisdictional catalog, namely (translation from German language)
- item 2.a) (“Offenses directed against a person solely or primarily because of his/her political views (…),”) or else
- item 6. (“Adult brutality offenses [offenses against bodily integrity, in the commission of which a particularly callous, inhuman attitude is apparent], insofar as the jurisdiction of Department 278 is not given.”).
The inquiry sent to the Berlin Public Prosecutor’s Office in this regard in October 2022 as to on which item(s) of the jurisdictional catalog of Department 231 its initial jurisdiction was assumed and on which item(s) the jurisdictional of Department 278 is based has not been answered yet.
II. Second supervision appeal (“Fachaufsichtsbeschwerde”) against the discontinuation of proceedings and its rejection by the Senate Department of Justice of the State of Berlin
On 07/12/2022, an appeal was filed against the decision of the Berlin Prosecutor General’s Office dated 19/10/2022 confirming the discontinuation decision of the Berlin Public Prosecutor’s Office. If the Prosecutor General’s Office did not remedy this appeal, it would have to submit it to the Senate Department for Justice of the State of Berlin (link to archive) under Justice Senator Lena Kreck (link to archive, party DIE LINKE [“The Left”]) as the highest supervisory authority of the State of Berlin for a decision.
1. Grounds of appeal
The complaint largely raised the issues already presented in the first addendum to the present article of 10/11/2022.
With regard to the negligent homicide, it was noted, among other things, that it remains unclear which action of the accused police officer was even examined for causing the negligent homicide of the elderly lady. It was criticized that the investigation, to all appearances, only concentrated on the events documented in the publicly available video recordings and left out what may have happened afterwards, when the elderly lady was in the unobserved custody of the police to establish her identity (appeal of 07/12/2022, paras. 9 ff.).
With regard to the accusation of assault, it was criticized that the elderly lady had informed the acting police officers, according to the information provided by the Public Prosecutor’s Office, that she had a heart condition, but that they had restrained her despite this knowledge of her health problems and led her away at an obviously excessive speed, thus inflicting unnecessary pain on her and approvingly accepting damage to her health (ibid., paras. 20 ff.).
2. Rejection of the appeal by the Senate Department of Justice of the State of Berlin
Already on 09/01/2023 the answer of the Berlin Senate Department of Justice of 03/01/2023 was received, which means that the General Prosecutor’s Office had not remedied the appeal. The answer comes from Department III C 9 of the Senate Administration (see the organizational chart of the Senate Department of Justice) and has the expected thin content.
The person responsible, apparently a judge seconded there from the Berlin Regional Court, stated cursorily that (translations from German language) “after examining the factual and legal situation (…) there is no reason to take measures by way of official supervision”, because “the decision issued to you is based on correct and extensively explained considerations, which I agree with”. Without a new presentation of the facts, moreover, “further correspondence cannot be envisaged”.
The issues raised in detail in the appeal, in particular the obvious gaps in the investigation, were thus ignored not only by the Berlin General Prosecutor’s Office but also by the Berlin Senate Department of Justice. The legal avenue of appeal is thus exhausted, at least on the basis of the currently known facts.
III. What now?
After the Senate Department for Justice of the State of Berlin under Justice Senator Kreck, as the highest supervisory authority of the State of Berlin, was thus involved in the case and turned a blind eye to the existing questions, the matter has now taken on an even stronger political dimension.
As is known, the last election to the Berlin House of Representatives held on 26/09/2021 will be repeated on 12/02/2023 after the Constitutional Court of the State of Berlin annulled the election results due to numerous serious organizational deficiencies.
The case of the death of the elderly lady will now be addressed at the political level.
* * *
Third addendum
(published on 27/01/2023):
On 18/01/2023, the case of the death of the elderly lady and the handling of the criminal investigation on the part of the Berlin Public Prosecutor’s Office was brought to the attention of the currently three opposition groups (link to archive) represented in the state parliament of Berlin, the Abgeordnetenhaus (“House of Representatives”), namely those of CDU, FDP and AfD. They were asked to raise the issue with the Berlin Senate (link to archive) – the government of the state of Berlin, currently formed by a coalition of SPD, Bündnis 90/Die Grünen and DIE LINKE – and it was suggested that the latter be asked to answer several questions on the matter.
The letter to the CDU group, as the largest opposition group, is available here; the letters to the other two parliamentary groups are identical in content.
The CDU parliamentary group answered the letter already on 20/01/2023 by E-Mail and refused to deal with the matter for a reason which is just as remarkable as it is absurd. “Team citizen correspondence” of the CDU parliamentary group Berlin – a contact person by name apparently does not exist there – stated (translated from German language):
“Thank you very much for your message and for sending us the documents.
For reasons of separation of powers, we cannot deal with criminal investigations. However, there is the possibility to submit a petition. We gladly attach the link to the petition committee:
https://www.parlament-berlin.de/Ausschuesse/19-petitionsausschuss
Yours sincerely
Team citizen correspondence”
Apparently, the CDU parliamentary group in Berlin has not quite understood the meaning of the principle of separation of powers. Part of this elementary constitutional principle is precisely the control of the executive, in particular the government, by the legislative, i.e. the parliament. The public prosecutor’s offices and the supervisory authorities responsible for them are part of the executive and, as is well known, are dependent on the instructions of their superior offices (cf. sec. 146 of the Court Constitution Act [Gerichtsverfassungsgesetz – GVG]), in the present case thus ultimately on that of the Berlin Senator of Justice. Therefore, the conduct of the Berlin Public Prosecutor’s Office in the present case, as well as the subsequent supervision activities exercised by the Prosecutor General’s Office and by the Senate Department of Justice, fall entirely within the responsibility of the Berlin Senate, the executive branch, which is controlled by the Berlin House of Representatives, the legislative branch.
So when the CDU parliamentary group Berlin declares in its message that it cannot deal with the public prosecutor’s investigations into the death of the elderly lady “for reasons of separation of powers”, it not only lacks elementary knowledge of the structure of a state system abiding by the rule of law, but, because of this fundamental misconception, also denies to exercise one of its core functions as part of the parliamentary opposition, namely the control of the government’s actions.
On 12/02/2023, the Berlin House of Representatives will be newly elected, and the CDU under its frontrunner Kai Wegner will also be standing for election there. Whether their expertise, exemplarily displayed in the present case, is sufficient to cast one’s vote in their favor, is a question that every eligible voter should consider carefully.
* * *
Forth addendum
(published on 02/06/2023):
For the sake of completeness, with regard to the last addendum dated 27/01/2023 it should be mentioned that the described response of the CDU parliamentary group remained the only one from the opposition parliamentary groups in the Berlin House of Representatives at that time. There was no reaction from the FDP and AfD parliamentary groups.
All attempts to obtain further information about the circumstances of the death of the elderly lady have so far been thwarted by the Berlin public prosecutor’s office. Two applications to provide information from the file (sec. 475 StPO [German Criminal Procedure Act]), which were submitted already in October 2022, were not decided until the end of March 2023, when they were flatly rejected.
The legality of these refusals to provide information is now being reviewed by the courts.
* * *
Fifth addendum
(published on 29/09/2023):
In the meantime, the Tiergarten County Court has ruled that the Berlin Public Prosecutor’s Office’s refusal to provide information about the elderly lady who was killed, the circumstances surrounding her death, and the internal allocation of responsibilities within the public prosecutor’s office was lawful.
The court justified this in its corresponding decision as follows (translation form German language):
“Attorney Dr Stjerna essentially justified his applications by stating that he intended to bring the information provided to him to the attention of an interested group of persons. Thus, the possibility of the public prosecutor’s office to decide on a case-by-case basis whether and which information is to be provided would in fact be eliminated and information could be obtained by an indeterminable group of persons, which is obviously not the purpose of the provision, which is why the interest based on this cannot be a legitimate interest within the meaning of the provision.“
This reasoning is astonishing. It evades the decisive legal questions and gives the Berlin public prosecutor’s office carte blanche for its very questionable handling of the two requests for information based on a more or less creative understanding of the law.
First, an intent to “bring the information provided to him to the attention of an interested group of persons” has not been stated at any point. There was already no talk of publishing the demanded information. Rather, it was argued that the information demanded was to be used for reporting on the matter here, which, however, does not necessarily require its publication. Apart from that, anonymizations were already made so far, where this appeared to be necessary. Thus, the basis of the Tiergarten County Court’s alleged publication intent remains unclear – apart from the question, whether even such an intent could be a reason for refusing information.
The “possibility for the public prosecutor’s office to decide on a case-by-case basis whether and which information is to be provided”, which the Tiergarten County Court claims to be worthy of protection, is a pure fiction that has found no recognizable expression in the relevant statutory provisions (sec. 475 and 479 of the German Code of Criminal Procedure (“StPO”)). If this alleged “possibility of the public prosecutor’s office” had any legal relevance, e. g. any press reporting on investigations by the public prosecutor’s office would always have to be inadmissible, because it intends from the outset that this information is “obtained by an indeterminable group of persons”.
In short, the Tiergarten County Court’s decision is not convincing and has therefore been appealed.
* * *
Sixth addendum
(published on 22/01/2024):
As reported in the addendum of 29/09/2023, an appeal had recently been lodged against the decision of the Tiergarten County Court, which had confirmed the refusal to provide various information from the investigation file about the deceased elderly lady, the circumstances of her death and the internal allocation of jurisdiction by the Berlin Public Prosecutor’s Office.
I. The information in question and the confirmation of the refusal to provide information by the Tiergarten County Court
The following information was requested from the Berlin Public Prosecutor’s Office on the basis of sec. 475 of the German Code of Criminal Procedure (“StPO”) (translation from German language):
1. what is the full name of the deceased lady?
2. what is the date of birth of the deceased lady?
3. what is the date of death of the deceased lady?
4. where did the lady die?
5. when was the autopsy of the deceased lady commissioned and by whom?
6. when was the autopsy of the deceased lady carried out?
7. when was the result of the autopsy of the deceased lady available to the public prosecutor’s office?
8. a copy of the autopsy report;
as well as
9. on the basis of which item(s) of the list of responsibilities of Division 231 was its initial responsibility assumed?
10. on which item(s) of the list of responsibilities of Division 278 is its jurisdiction based?
In its decision dated 12/06/2023, the Tiergarten County Court declared the refusal to provide information lawful on the grounds that the intention here was to bring the requested information “to the attention of an interested group of people”.
II. The appeal against the decision of the Tiergarten County Court
An appeal (excerpt) was therefore lodged against this decision in September 2023.
In particular, it was pointed out that this was based on several false premises and that the Tiergarten County Court had ignored all the circumstances presented for the admissibility of the provision of information. Above all, the assumed intention of indiscriminate publication of the requested information did not exist, as the anonymizations carried out to date already showed.
It was also noted that the appellant, as a lawyer, was responsible for the admissibility of the transmission of the information and not the public prosecutor’s office as the transmitting body (cf. sec. 479 (5) 2 StPO). 2 StPO), whereby it was in line with the case law of the Federal Supreme Court (“BGH”) to provide information under less strict conditions if the recipient has a special responsibility in dealing with this information (cf. BGH, 5 AR (Vs) 112/17, decision of 20/06/2018 [affirmed for the transfer of a criminal judgment to a press representative]).
III. Rejection of the appeal by the Berlin Regional Court
Initially, there was no communication from the court regarding the appeal filed on 19/09/2023. The otherwise obligatory confirmation of receipt and notification of the file number did not take place until the end – even after repeated requests – and inquiries about the status of the case remained unanswered. It is important to note that the appeal must be submitted to the court of origin, which can either accept it or, otherwise, must submit it within three days to the court of appeal, in this case the Regional Court Berlin (see sec. 306 (2) StPO).
Only after a corresponding request to the President of the Tiergarten County Court had been made in December 2023, it was declared at the beginning of 2024 that the appeal had been submitted to the Berlin Regional Court on 12/10/2023.
Shortly thereafter, the decision of the Regional Court Berlin dated 04/01/2024 was transmitted, in which its 33rd Enlarged Criminal Chamber (“Große Beschwerdekammer”) dismissed the appeal.
The reason given for the negative decision was that the intended reporting on the case did not constitute “a legitimate interest of the appellant as a private individual” (this an the following citations are translated from German language). His position as a lawyer did not change this either, as the public prosecutor’s office had to “in any case carry out a conclusive examination (…) as to whether the request for information was within the scope of the recipient’s duties”. That “the requested information could serve the performance of the appellant’s duties” was “neither presented nor otherwise apparent in the present case”. In case the complainant regarded himself as a representative of the press, sec. 475 StPO was stated not to be applicable to the transmission of information to the press and other media.
The decision cannot be appealed.
This means that the identity of the deceased elderly lady remains under wraps, as do the circumstances of her death.
New developments will be reported on this blog.
(Head picture and pictures of addendum 10/11/2022:
Police action against the elderly lady in Berlin on 21 April 2021,
sources: Youtube channels Liberty News Berlin and Boris Reitschuster)
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