Using a mobile phone while driving is very common, yet very dangerous, because it distracts the driver from the actual task of driving. That is why in Germany you may not make calls while driving, or even let your phone distract you to read messages, check your inbox or quickly type a text. Any contact with the phone is prohibited — you are not even allowed to reject an incoming call. The only exception is use that does not involve your hands. There are special devices for this, such as hands-free kits (Freisprecheinrichtung), headsets and the like; using them is not a violation, because you do not have to pick up the phone. Nevertheless, many drivers ignore the Straßenverkehrsordnung (StVO, the German Road Traffic Regulations) and cannot put the phone down even behind the wheel. Yet using a phone while driving can cost you not only a fine but also a full point in Flensburg (the central register of driving offenses). So before you pick up your phone, it is worth thinking about the consequences.
Vyacheslav (name changed) had heard about fines for using a phone while driving, but, without looking into it any further, he naively believed that only actually talking on the phone was prohibited and that simply holding it was allowed. That day he was driving to work as usual when, for a split second, he thought a call was coming in. Out of sheer habit he picked up the phone and held it to his ear. The young man had no intention of taking the call; he only wanted to check whether the phone was really ringing. At that very moment, as luck would have it, a police officer appeared out of nowhere and pulled Vyacheslav over. Without further ado, and without listening to the young man's explanations, he issued him a fine.
Some time later Vyacheslav turned up at the door of our law firm — but with a rather different problem. As it turned out, he had recently received a letter from the police summoning him to the station for questioning. The young man was accused of Beleidigung (insult) under § 185 of the German Criminal Code (Strafgesetzbuch, StGB). Vyacheslav was at a loss: he insisted that he had not insulted anyone and did not understand what this was about. He tried hard to recall everything that had happened over the past few days. And since the roadside incident with the fine was his most vivid and most recent memory, he told us about it in more detail.
According to Vyacheslav, after pulling him over the police officer first explained that using a mobile phone in road traffic is prohibited and counts as a violation of the Road Traffic Regulations. He then quickly wrote out the fine and wanted to leave. Our client, however, did not feel guilty at that moment, because he knew perfectly well that he had not been on the phone. Although Vyacheslav found it extremely hard to express himself in German, he still tried to explain the whole situation to the officer and why the phone had been at his ear. The officer replied that if the young man disagreed with what he had done, he could file a complaint with the competent authorities and try to challenge the decision through the usual procedure. With these words he started to walk away. Our client, however, believing that he had been punished for nothing and not quite understanding what the officer meant, could not calm down. He was frantically thinking about how to prove that he had not made a call. A moment later he opened his call log, jumped out of the car and ran after the officer to show him the list and demonstrate that there had been no incoming or outgoing calls during that time. The officer did not react at all, asked to be left alone, and once again recited his well-rehearsed speech about the young man's right to file a written complaint if he disagreed with the officer's decision. According to the client, realizing at that moment that he would get nowhere with the officer, he simply turned around and walked back to his car. He had not said a single insulting word to the officer, Vyacheslav insisted.
The firm's lawyer requested the investigation file (Ermittlungsakte). Once it arrived, the following emerged.
The officer's statement in the file painted an interesting picture. The beginning of the story resembled our client's version. It also described our client's dissatisfaction and disagreement with the fine. The ending, however, was considerably different. The officer stated that after repeating that a complaint could be filed with the competent authorities, he had turned away from our client and taken a few steps when he heard Vyacheslav say the words "yob… tvoyu mat'". As the officer explained, having worked in Berlin for many years, he had heard all kinds of swear words and expressions in many of the world's languages — Turkish, Czech, French and others. Russian swear words were particularly familiar and understandable to him, as he frequently dealt with Russian-speaking offenders. He therefore had a certain idea of what the various swear words meant. And when he heard what Vyacheslav said, he knew that the expression meant "f...ck your mother". In Germany such an expression is considered an insult, which is why he had, of course, filed a criminal complaint (Strafanzeige) against our client.
Insults affect a person's honor and dignity, so they are regarded as a serious criminal offense and are punishable by law. Under German law, insulting remarks directed at a person are punishable by imprisonment of up to one year or a fine (§ 185 StGB). The law makes no distinction if the insult is uttered in a foreign language. An insult to a police officer is treated under the same provisions as one directed at an ordinary citizen. For legal action to be taken against an obvious display of contempt for a person, the insult must be expressed publicly and at least be directed at the person concerned. But what can actually count as an insult in real life, and where does the line run between an insult and an ordinary expression of opinion?
Article 19 of the Universal Declaration of Human Rights and practically every constitution in the world enshrine freedom of expression as one of the fundamental proclaimed rights. In particular, Article 5 of the German Basic Law (Grundgesetz) provides that everyone has the right freely to express and disseminate their opinions in speech, writing and pictures, and to inform themselves without hindrance from generally accessible sources. There is a vast body of literature and case law on the subject of insult. The reasoning boils down to this: freedom of expression ends where insult begins. Whether a statement or an act is perceived as an insult, however, is a highly individual matter. Moreover, words can be spoken in different situations and particular contexts, with different intonation and facial expressions, which are difficult to assess objectively.
Our firm's lawyer, who has a perfect command of both German and Russian, had no difficulty recognizing, when reviewing our client's file, the context in which the remark had been made. A native speaker — someone for whom the language is their mother tongue — can correctly identify the context that makes it possible to understand the meaning and overall sense of the words used, taking into account their linguistic surroundings and the communicative situation. It is common knowledge that every language in the world has expressions whose literal or direct translation does not reflect their actual meaning. And swear words very often fall into this category.
In our client's story it was obvious that, owing to his incomprehension and frustration and his failed attempt to explain and resolve the situation on the spot, the young man was in a state of extreme disappointment and despair. And even if he had uttered such words at that moment, they were more likely said into thin air as an expression of indignation, not directed at a particular person — in this case, the officer. Anyone with a full command of Russian would, given the situational context and despite the literal translation of the phrase, equate "yob… tvoyu mat'" with the word "Scheisse" so beloved by Germans or the word "Fuck" favored by Americans. Accordingly, the phrase our client uttered had nothing to do with either the officer or his mother. Vyacheslav said he did not even remember saying anything at all, because at that moment he was no longer addressing the police officer.
Seen from this angle, then, there was no insult at all, and the accusation was unfounded. After setting out all the circumstances and highlighting the context in which our client used the phrase, the lawyer wrote to the public prosecutor's office (Staatsanwaltschaft) demanding that the proceedings be discontinued under § 170 Abs. 2 of the German Code of Criminal Procedure (Strafprozessordnung, StPO) because no criminal offense had been committed. The prosecutor's office, however, did not take our arguments seriously and informed us that it had applied to the court for a Strafbefehl (a penal order issued without a trial) against our client for insult. If necessary, it said, an interpreter could be consulted when the court reviewed the case. The lawyer therefore applied, in turn, for an independent expert — a Russian-language interpreter — to be called in. The judge granted the lawyer's application and obtained the interpreter's assessment of the situation. After reviewing the file, the interpreter confirmed our position. He explained that, in such a context, the expression was not directed at any particular person and must not be translated literally. It therefore could not be regarded as an insult. So it turned out that the police officer had simply misinterpreted the expression by taking its meaning too literally. There was clearly not enough evidence for a penal order, and the judge, having heard our arguments and the interpreter's expert assessment, could not object to the proceedings being discontinued under § 170 Abs. 2 StPO for lack of a criminal offense.
With this case, our law firm wants to stress that every case has its own depth, individuality and particular features. Every story calls for its own approach. And only an experienced lawyer who correctly assesses all the circumstances and your legal position, and sets the right emphasis in the proceedings, can help you achieve a positive outcome. We therefore recommend that you seek qualified legal assistance to protect your interests.
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