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Hamburg judge Johann Krieten (center), rapper Gzuz (right) and his lawyer Christopher Posch (left), September 8, 2020
Photo: Daniel Reinhardt / dpa
Judge tough
Last week it was that time again: We were allowed to experience the repeated appearance of a new "Richter Knallhart" from Hamburg, printed, digital and streamed.
We remember: A later performer of a particularly greasy container format began his remarkable career at the Hamburg district court on a crest of waves from Germany's largest daily newspaper and with the honorary title "Merciless" awarded by the above-mentioned paper.
And whoever thought that the container basement was quite far down, learned that it can go deeper.
Thomas Fischer, arrow to the right
Born in 1953, is a legal scholar and was Chairman of the 2nd Criminal Senate of the Federal Court of Justice.
He is the author of an annually revised standard short commentary on the criminal code and numerous other specialist books.
In 2017, "Bild" made another attempt at sequels with a new leading actor and on August 29, 2017 they reported under the headline: "This is Hamburg's tough judge":
"The first trial against a G20 angry (21) on Monday ended with a tough verdict: 31 months in prison, no release from pre-trial detention, a blood sample submitted for the criminal database! Who is the judge, who is left scene shows where the hammer hangs? "
We don't want to pursue the matter any further here.
The speech was - that's why we come to it - from the judge at the local court Johann K., criminal judge at the Hamburg court.
Only one hero story should be told, which "Bild" revealed to us in 2017:
“An intensive offender (14), who was completely transverse during the trial, once said during the trial:“ Well, I'll show you now where you'll end up soon. ”Then Krieten took off his robe and led the boy from the courtroom In the basement in the remand prison. There he locked him in a cell for a few minutes. Then the boy in the courtroom confessed to everything a little pale and promised to work with his tutors in the future and not to run away. "
This is a story to the liking of that simple mind that dominates the public opinion market about "fighting" criminals.
In this special case, however, I recommend refraining from imitating the pedagogical demonstration in 14-year-old "intensive" criminals.
If you are not a criminal or juvenile judge, this is recommended with regard to paragraphs 239, 240, 241 StGB (deprivation of liberty, coercion, threats).
As a judge, even if your constitutional compass should fail for a short time, you should definitely keep your hands off an imitation after you have read the decision of the Federal Court of Justice of August 15, 2018 (Az. 2 StR 474/17) as well as the in have read the same case already issued on May 31, 2012 (Az. 2 StR 610/11).
It concerned a criminal judge at the district court who had taken a defendant unwilling to confess to the basement of the court during the main hearing and temporarily locked him in a cell to show him what his life would be like if he did not confess.
This absurd event brought the judge, confirmed in two rounds by the Federal Court of Justice, a conviction for the crime of perverting the law (Section 339 StGB).
We mention this - in jurisprudence and science undisputed - decision to round off the quoted "Bild" story about the "tough judge".
I don't know whether this is true.
The statute of limitations for an official offense to be prosecuted ex officio is five years.
It would be interesting to find out whether and, if so, how the responsible public prosecutor's office was involved and present in that tough criminal case.
So now another heroic deed, this time against a terrible "gangsta rapper" who not only had multiple criminal records and was under probation, but also "shot around with a blank pistol on New Year's Eve, although he is not allowed to carry any weapons", and also committed other crimes of a similar intelligence caliber (bodily harm, possession of narcotics).
These weren't crimes (minimum one year sentence, such as perversion of the law), but (especially if repeated) they weren't trivial either.
We do not want to "trivialize" anything here - as otherwise.
However, today we are more interested in the local side of the "barriers of the court".
In this case it is so "badass" that the press starts to cheer:
"Hamburger Abendblatt", September 29: "The judge who doesn't accept anything"
"Hamburger Morgenpost", September 30th: "Beloved and feared: This is the judge who gave 'Gzuz' the mega-punishment"
And "Focus", September 30:
"
This is Hamburg's tough judge Johann K .: Beloved and feared: This is the judge who gave rapper Gzuz a mega-punishment. The Hamburg magistrate Johann K. (63) knows no mercy . "
You read that right: "Beloved and feared" he is supposedly.
Should a longing father actor have directed himself into the heart of Hamburg's youth?
No, it's not that bad yet: Mr. K. is "loved", we learn, "by the press for his pithy sayings".
Even the chutzpah of conjuring up a small work of art of lies with the attributive combination of "loved and feared" shows us: It is not that the editorial offices do not know how to do it, and that the tendentious distortions are only slips on the language keyboard would be.
The "mega-punishment" of the - not final - judgment consisted of a prison sentence of one year and six months and an
additional
fine of 300 daily rates.
Just a reminder: In Germany, contrary to the mostly incomprehensible reporting, fines are not imposed as a sum.
Because then the poor would be hit much harder than the rich.
The fine is awarded according to "daily rates".
The daily rate is one-thirtieth of the (actual or expected) monthly net income (minus provision, maintenance, rent);
and it is converted to days because in the event of non-payment, one day of "substitute custodial sentence" must be served for each daily rate (see Sections 40, 43 StGB).
Now, if you think about it, it is clear that the daily rate principle is most fair for middle incomes.
At the lower as well as at the upper end it actually no longer fits because the sums (products of daily rate number and daily rate amount) that come out are no longer appropriate to the guilt.
Example: Take a shoplifting worth ten euros and a fine of 15 daily rates.
A penniless homeless person pays at least 15 times one euro, a CEO of a large DAX corporation pays 15 times 30,000.
A 15 euro fine is also too little for a petty theft, and 450,000 euros, despite all the love for social envy, are also no longer appropriate.
Mr. "Gzuz", the artist, is supposed to pay 300 times 1700 euros in addition to his 18 months without parole because he used his "gangsta" deeds for self-staging, that is, for "advertising" for gangsta rap;
The clever judge hits hard with Section 41 of the Criminal Code:
"If the perpetrator has enriched himself or tried to enrich himself through the act, a ... fine can be imposed in addition to a prison sentence ..."
Well: Maybe you can do it (I don't know the written reasons for the judgment), but you certainly don't have to.
And 510,000 euros "additional fine" are in a somewhat magical range, even if the artist Gzuz should have a monthly net income of 51,000 euros.
I don't know whether you can increase your income as a rapper by shooting a blank gun in the air on New Year's Eve.
Maybe that works in Hamburg.
Negotiation culture
The case itself is not particularly exciting.
But it gives rise to two considerations.
The first concerns the negotiating culture, which is described here and assessed by the press reports mentioned with partly express approval, partly with cautious horror, but in no case as what it is in my opinion: overreaching and inappropriate.
"Focus" reported on the "tough judge": "There are defenders who no longer greet him in the courtroom, they are so annoyed by what they call the 'Krieten Show' at the expense of their clients."
Now we certainly do not want to uncritically sing the song of the defenders, whose sensitivity when it comes to the interest-based simulation of emotions is not always the best.
However, the following still applies: A criminal defense lawyer has to serve the interests of his client.
After that, nothing comes for a long time, and then, protected by the limit of justifiability, comes the big picture, called the legal system.
That doesn't mean that decency doesn't matter - on the contrary.
But defense lawyers are not required to interpret the role of Solomon in court.
Neither are judges, but for a different reason: Anyone who thinks that he has become a judge because he has such an incomparable sense of what is right, the truth and human nature has already lost before the world judgment of ridiculousness.
In fact, judges are on average neither wiser, more intelligent, more experienced in life, nor more moral than the average of the people they judge.
An exception applies to formal literacy: the vast majority of those who are covered by the criminal justice system continue to come from the lower social classes of society, are less informed, educated, agile, wealthy and self-confident than the average and certainly than the average judge. who, as always, come predominantly from the so-called upper middle class: the parents are senior civil servants, lawyers, doctors, freelancers.
Relatively few come from entrepreneurial families, even fewer from the lower class.
There are reasons and consequences for this;
we will come to that shortly.
At this point it is important to say first of all: to mock people who are firstly biographically-personally and secondly structurally-systematically inferior is neither difficult nor courageous;
it is easy and rather pathetic.
As a rule, judges are rhetorically superior to the people who have to appear before them as accused, including the majority of witnesses.
They are where they operate, and also "at home" in almost every respect: The place, occasion, program and form of communication correspond to their professional routine;
in any case, they are not afraid of the surface of this familiarity.
For the accused and witnesses, however, the matter presents itself as a tense, exceptional situation;
in almost no respect they can show a "normal" behavior corresponding to their everyday life;
precisely this is (also) the purpose of the staging.
Incidentally, it is always interesting and occasionally amusing to experience what happens when one of the professionally present people who are not involved in the proceedings is surprisingly led into the role of evidence person: a journalist or spectator suddenly witnesses an assistant defense attorney is supposed to give explanations and so on.
In a very short time, the attitude of casual coolness turns into strained excitement, and with slightly trembling fingers the "experienced court reporter" (a popular job description that is supposed to refer to a magical cognitive power gained through years of sitting there) leafed through, alone on the witness chair their notes.
The "Hamburger Morgenpost" quotes the tough judge with the characteristic saying: "If someone is joking in my room, it's me!" And adds that "disrespectful defendants" get to hear this.
We are impressed, not only by the fact that the judge is allowed to call an entire hall of the district court his own (other presidents limit themselves to "my senate" or "my chamber", which is also very nice, but has not yet become real estate) , but also from the reflected constancy of humor.
There is, however, a certain amount of anankasm inherent in legal humor, which those affected sometimes mistake for anarchism.
It gets especially bad when someone always says: "I always say ..." and then spits his jokes out of his robe and down and is really excited that he will say it again today.
In principle, this can of course happen to anyone, because humans are absurd and sometimes vain and would like to be recognized as the sovereign, desirable being who looks at them from the mirror.
Merely amused condescension over such ingrained misconceptions is therefore not enough and ultimately repeats what it claims to criticize.
It seems to me more important to reflect oneself in such distorted images and to take both seriously.
Everyone wants to "realize" themselves in their job, one way or another, and contrary to all claims, the job of the criminal judge is not a hard-fisted handling of lies and trivialities heard a thousand times, but a constant battle with emotions, empathy, others and one's own Fear and with the power that one does not have for the sake of one's own merits.
Even in the funniest case reports, with which witnesses of the judges' leisure time are tortured without end, in all the prepared stories about the absurdities and uniqueness, the nastiness, badness and incomprehensibility, but also the hopes and efforts of the clientele, the small, tormented soul often shimmers , unable to integrate the excess of violence, sadness and disappointment into one's own life other than in formal systems.
One thing seems clear to me: Anyone who says "my room" and can only endure their own jokes has a problem and makes others one.
If it is true what the "Focus" quotes as the "closing words" of the chairman K. to a criminal defense lawyer: "You played ships sinking in this case, but the only one you sank is your client", that's it , popularly speaking, completely wrong.
And the explanation of the sentence against the accused with the words: "If your defense attorney were better prepared, then your fine would be 210,000 euros lower", moves on the verge of confessing an act according to Section 339 of the Criminal Code.
Incidentally, there is nothing badass, nothing funny, and nothing defensible about it;
it's just plain embarrassing.
If the judge knows that the defense counsel's information on the income of his client is incorrect or insufficient, he is ex officio obliged to clarify, but not entitled to overestimate the fine against his better judgment.
You can endure tough polemics among professionals, and you certainly don't have to like or appreciate everyone who understands the main hearing as a backdrop for your own importance.
But mocking a criminal defense attorney in front of the client and the public is wholly inappropriate because it is on the level of an imaginary, malicious audience and pulls the institution in the mud.
Between us
That leads to the second remark.
Criminal judges love the idea that they know life in all its heights and especially its abysses.
Very often, however, they do not know anything more to tell about the abysses than the number of knife stabs with which the most brutal of their accused got rid of their enemies, the dismemberments of the corpses and the methods of violence.
In case of doubt, the expert is responsible for the remaining abyss, who deals with the topic "Is he culpable or not?"
has to express itself in such a way that the court can once again "fully endorse the easily understandable, convincingly presented expert opinion of the expert who is known to be reliable after its own examination".
In the smaller coin, at the district court, where drunkards, rappers, housewives and sales assistants pick up their life aids, there are usually no professors at hand;
the magistrate has to know everything himself.
Fortunately, he and his superiors think, he's been doing the job for 20 years and has seen it all.
That is why a 49-year-old criminal judge, an only child from a dentist's household, knows exactly how things go on the street prostitution, in the social welfare office, in the station hall and among amphetamine addicts after a short training period;
and what a 21-year-old woman with a broken hairdressing apprenticeship and a large area tattoo thinks, wants, dreams and can reflect on Saturday night when she takes a seat on the passenger seat with two ecstasies in her pear, the judge can certainly imagine very well.
By the way, she spent exactly zero hours learning this during her entire eight-year training.
In other words: Criminal judges have to do to a large extent with facts that they never experience themselves, and with people from whom they are in many ways very remote.
Criminal judges do not grow up in Hartz IV families;
six of them don't live in 65 square meters;
on the 25th of the month the money is usually not drunk;
they can speak French and a little Latin and are deeply afraid of falling socially and of being despised, while their clientele has already inhaled this feeling in daycare.
No reason for social romance!
The columnist has, as biographically liked to point out, an "unusual curriculum vitae", in which besides a somewhat atypical childhood and an early separation from the parental home, a quite long time as an unskilled worker of varying degrees of hardship is included.
The interview question is very popular as to whether this was of use to the interviewee later "in his judicial work".
The answer is yes.
But this does not explain much if the questioner does not also have such experiences.
Sometimes experience is also detrimental: one does not simply experience some conversations at the coffee table and many judgment deliberations as the epitome of the inevitable, the should and the enlightened and occasionally only endures them with a high degree of discipline, which, like everything, does not always succeed.
If the life of a criminal judge fits perfectly between early piano lessons, intermediate French lessons and late "FAZ" feuilleton, it is easier.
You just have to take it as it comes and make an effort!
However, if you are already studying something so exciting and powerful and important and you are allowed to put on your robe and present all the power of the state to the world, you have to think a few things about the point of view from which the other characters in the hall look at you Look at the scene.
I mean: a little empathy is not bad in the job.
And by that I don't mean the chatter that has become common these days as a constant excitement about the wickedness of the world and the double mirrored self-pity.
I mean: just work on being humble before the matter.
There is still enough space for the greatness, if it is actually somewhere.
"Who, if not you, belongs in jail?", The tough Mr. K. is supposed to have asked the rapper G.
Well, some just have it.
Icon: The mirror