Berlin Prosecutor's Office

       Lawyer
June 11, 2019

Received by counsel: June 17, 2019
      
Pre-trial against Dr. P.N.
In response to your letter of 05/20/19

 

Dear attorney,
      
Your letter, which I value as opposed to the local attitude 03/28/19, was referred to me by the competent investigative department for verification.
After a careful study of the materials and documents that you sent me, I can not initiate an investigation.

Firstly, I would like to express my condolences to your client. The pain and constant horror that brings with it the loss of a close and beloved relative, I fully understand. I have the appropriate understanding for this - to be suspect statements made by your client regarding your own opinion and opinion regarding the incident of 01/08/19.

Nevertheless, I, as the responsible department, when legally considering this incident, made my decision alone on the basis of objectively verifiable and unverifiable facts. Therefore in the interests of fair criminal justice and prosecution, I can not humanely, although quite understandably, allow the assumptions, conjectures or statements, as well as moral values included in my decision.

The only thing that should be studied is the presence of the accused sufficient suspicion of committing a crime of which he is accused, that is, whether it is possible to accuse the accused of the death of a person by his own negligence, there is a reasonable suspicion, or a specific suspicion of a criminal offense justified by the person concerned.

A sufficient suspicion is given if, after a preliminary assessment of the facts of the case and the results of the evidence, the conviction of the accused is more likely than the acquittal, and therefore the overwhelming prevailing probability of conviction (BGHSt 15, p. 155).

In the present case, I do not accept sufficient suspicion for the following reasons.
      
At the beginning of the discussion, I would like to express that I can not only understand your dissatisfaction with the lack of expertise in accidents at the scene, but also express my dissatisfaction. To provide the necessary expert advice on road transport accidents, I accepted the general order that in the event of a traffic accident related to the consequences for the deceased person, it is necessary to immediately call an expert to the scene.
      
If, as in the present case, it is expected that at least a sudden death of the victim is expected, the police should immediately contact the prosecutor's office after taking security measures in place to order the involvement of an appropriate expert. This is missed in the present case.
      
However, it should be noted that this error cannot be eliminated or retroactively eliminated due to the elapsed time. The same applies to inadequate or due to rain-washed marking during an accident, which makes reverse reconstruction of the accident and its consequences difficult or even impossible.

Therefore, lessons learned from research are important. The content of the case should be examined to determine whether the facts obtained, together with the evidence available at the end of the main hearing, are likely to be determined to satisfy the court, and that the evidence legal liability for the accused. The principle of doubt about the guilt of the accused is not directly applied, because it is used only in court decisions i.S.d. 261 StPO terminate the case after the evidence has been accepted. However, in my forecast decision, I must indirectly take this principle into account, since the verifiability of the charge is included in the forecast of the prosecutor, and it should be expected that any doubts are mainly proceedings can be overcome. In my opinion, this is not the case here.

A crime of negligence of a murder should be confirmed only if the death of a person is caused by an objective violation of the obligation to care, the death was foreseen for the accused with taking into account specific circumstances, a specific case and it could have been avoided with ordinary evasion. These conditions must be proved to the defendant using objective evidence.
      
The death of one person, the mother of your client, was, unfortunately, caused by accident. However, this alone is not enough for a criminal charge. accused, despite all the tragedy.
      
Also required is a violation of the duty to care for the accused, which led to the death of a causal.
      
It is already missing here.

Firstly, it should be noted that only the age of a person does not give information about his suitability for driving. The contents of your client’s letter do not contain any specific evidence that the accused cannot drive. Your customer’s statements are easy assumptions or statements without evidence.
      
Moreover, the late Bella Gelfand, who was almost the same age as the defendant, would also disagree with this argument regarding fitness for participation in traffic - even as a pedestrian - for which there is also no evidence.

Even the denial of the fact that the injured party fled to the red light at the traffic lights cannot be disputed. According to the results of the investigation, the injured party crossed the street with a red light for pedestrians. This result cannot be denied, even by qualified denial. of this fact.
      
Neutral witness A., who does not have any of the persons involved in a family or other relationship, she plausibly stated that she saw with her own eyes when the victim crossed the street into the red light of a traffic light.
      
I see no reason not to believe this statement, since the witness could have watched the process well because of the circumstances described, and there is no reason why she should have invented it only because of the importance of her observation.
      
The fact that the victim has never crossed the street before the red light may be true, but this story does not guarantee that this time - perhaps due to heavy rain or an urgent meeting - did not change her habits.
      
Rather, for me - as in the case of an impartial person accident - a statement by witness A. about my decision for the above reasons should be based.
      
By the way, this statement also coincides with the testimony of witness G., who stated that the accused slowly drove into the intersection zone. Due to the fact that it was very dark and heavy rain, the victim was dressed in a dark suit and quickly ran to the red light of the traffic light, the accused reached the intersection in an uncertain, but slow driving on the basis of testimony, objectively due diligence is impossible to establish.

Even if the expert’s opinion, which, given the initially described unsuccessful recording of the accident, will only lead to the expectation of an accident hypothesis, just like your client concluded that the defendant drove at a speed of 25-30 km / h, there will be no prudence, because the intersection zone at the green traffic light may well be passed at such a speed, in particular, since pedestrians based on the principle of trust in red pedestrian lights should not be expected.
      
Any further expert hypotheses will also have to be contrasted again and again with factual evidence, thus existing witness testimonies.
      
In the event of a final doubt in the fault of the accused, the investigation will have to decide in favor of the accused so that your request for an expert opinion on the accident did not promise any chance of success.
      
In any case, the accident would not have been predictable and preventable, even if there had been a violation of duties. Ultimately, this should be accepted after the results of the investigation, since in no case can it be ruled out that an accident was inevitable for the accused.
      
Rather, the circumstances described by witnesses indicate the inevitability of the accident. The visibility for the accused was poor due to darkness and ongoing rain. Records made by your client do not speak against this moment of the accident. On the contrary, they show how poorly a pedestrian on the right side of the road cannot be seen - thanks to the principle of trust, which is used in traffic. Moreover, the deceased was very small and dressed in dark clothes. Based on the testimony of the accused’s adapted speed and the fact that he was allowed to go through a regulated intersection of traffic lights, it’s unclear how the accused had to avoid an accident. Relevant requirements would mean that the accused in such circumstances - like any other road users - with his vehicle probably should have move at a pace or not move around the city at all.

No matter how difficult the death of a loved one may be, especially in the context of such circumstances, the mere fact that the death was caused by another influence should not lead to defamation, which, according to the results of the investigation, does not justify sufficient suspicions, for indictment.
 
 
Best regards,
D., chief prosecutor