The speeding trial continues: Is it possible to become a defendant for negligent homicide without participating in the collision?

Facts After the two defendants had agreed to hold an illegal motor-vehicle race on the B 229 road near Arnsberg, a collision occurred during the race with a vehicle that was not participating in it. There were a total of five passengers in the car, one of whom lost his life as a result of the accident; the others were injured, some of them seriously. In its first decision, the Regional Court of Arnsberg sentenced defendant H., the driver of the car that caused the collision, to three years and nine months’ imprisonment for intentional dangerous interference with road traffic causing death; defendant P., the driver of the non-colliding vehicle participating in the race, was sentenced to nine months’ suspended imprisonment for illegal motor-vehicle racing. Following the prosecution’s appeal, the proceedings came before the Federal Court of Justice, which supplemented the conviction entered against defendant P., the second defendant, to include negligent homicide and negligent grievous bodily harm in four cases, and set aside the first-instance judgment. The proceedings gave the Federal Court of Justice the opportunity to clarify fundamental questions concerning the new section 315d of the German Criminal Code. In particular, the concept of “racing” and the question of attributing specifically realised dangers directly caused by other racers had to be clarified. It was essentially established that section 315d(2) constitutes an independent offence. Accordingly, a participant in an illegal motor-vehicle race within the meaning of section 315d(1) may commit the qualified offence under subsection (2) only if, through his or her driving conduct during the race, he or she independently creates a concrete danger to one of the listed individual legal interests. In addition, the existence of an internal connection between the causal contribution and the result of the endangerment must also be mentioned. Co-perpetration as a form of participation may be established where the same endangering effect was jointly caused by the participants. This, however, requires that the participants in the race were in the same racing situation and that there was a close temporal and spatial connection between the individual negligent contributions. In the specific case, the Federal Court of Justice held that defendant P. had himself negligently contributed to the homicide and bodily injuries. He contributed to the danger to the life and physical integrity of the occupants of the oncoming vehicle by participating in the development of the traffic-endangering overtaking manoeuvre carried out by his competitor, defendant H. In the present case, it was considered irrelevant that he himself had remained in his lane and therefore did not collide with the victims’ car, and that, for his part, he had not breached any further obligations arising from his status as the driver entitled to overtake.