Most of us know the feeling: emotions run so high that you want to tell the person who hurt you exactly what you think of them, straight to their face. But what if your words go so far that you have to answer for them before the law… That is exactly what happened to our client Nikolai (name changed).
Nikolai had lived in Germany with his wife Marianna (name changed) for many years. A year ago, however, she decided to divorce him. As it later turned out, she had found a new lover. One summer day she told Nikolai she was leaving him for another man. For the young man this was a stab in the back — he had never once suspected his wife of being unfaithful. Yet despite his broken heart and emotional wounds, he still loved Marianna and tried to forgive her. He begged her not to go, but she had made up her mind, and some time later she packed her things and left. There was nothing else to be done, and the young man wanted to forget everything and start a new life. That was easier said than done. The town was small, and running into Marianna was inevitable. One day he also saw her new partner Günther (name changed) in town — an older, self-satisfied man strolling arm in arm with Marianna along the waterfront. Over time these encounters kept repeating and turned into open confrontations between the two men; it never came to blows, but they certainly exchanged a few "pleasantries." Günther clearly saw himself as the winner and tried to show it at every opportunity. Even that was not enough for him. According to Nikolai, Günther called him several times just to mock him, describing his life with Marianna in vivid colour and sharing every detail of their intimate life. Unsurprisingly, Nikolai's patience eventually ran out. One evening, after drinking a considerable amount of alcohol in a short time, our client — suffering from his unrequited love for Marianna and filled with hatred for her new admirer — began calling his ex-wife over and over again. She did not pick up, and Nikolai, refusing to give up, decided to send her a WhatsApp voice message. It seems that at that moment he was so emotionally agitated that what he said in the message already amounted to a criminal offence.
Shortly afterwards, Nikolai received a summons from the police. As it turned out, Günther had been right next to Marianna when she listened to the voice message. Having heard its content, he took it seriously, immediately filed a criminal complaint (Strafanzeige) with the police and handed over the recording.
The young man was accused of threatening life and limb — Bedrohung (criminal threat) under § 241 of the German Criminal Code (Strafgesetzbuch – StGB). Under German law, this offence is punishable by imprisonment of up to one year or a fine; where the threat is to commit a serious crime (Verbrechen) such as murder, the penalty is imprisonment of up to two years or a fine (§ 241 Abs. 2 StGB).
A criminal threat is understood as a person's stated intention to cause serious harm to another person's health or to take their life.
A threat can be made in different ways: orally, in writing, by gestures or over the phone. For the legal assessment it makes no difference whether the threat is addressed directly to the victim or conveyed through third parties. What matters is that the threat is specific and meant seriously. A threat counts as serious if the offender intended to put psychological pressure on the victim's will, with the aim of making them feel uneasy, anxious or afraid for their own safety.
It is irrelevant that the offender never meant to carry out the threat and only wanted to intimidate the other person. The decisive factor is direct intent: the person deliberately makes threats calculated to be perceived by the victim as real and intimidating, causing fear and a sense of danger — and that is precisely what the person intends.
Immediately after Nikolai came to us, we requested the investigation file (Ermittlungsakte) from the police. It contained the very recording that had become direct evidence of the young man's guilt. On it, Nikolai — in broken German and with a drunken voice — tried to express all the feelings that had overwhelmed him that evening. From his incoherent speech, the following could be made out. If Günther caused Marianna any trouble, things would go badly for him. Nikolai mentioned criminal friends of his who would step in if needed and were only waiting for his signal. He claimed he had already given them the addresses where Günther lived and worked, along with all his details. And if Günther did anything bad to his ex-wife, he would no longer be alive. He said several times that this was no joke. Imitated pistol shots could also be heard on the recording. Although Nikolai's German was very poor, the gist of the recording was clear enough to be interpreted as a threat to kill Günther or to cause him serious bodily harm.
Despite the obvious threats made by our client, Günther's statement — unsurprisingly — said not a word about his own intrusive calls and earlier provocations towards our client. To explain to the police why Nikolai had behaved this way, the lawyer of our firm representing him submitted a written application setting out the whole situation in detail and requesting that the proceedings be discontinued.
In such a sensitive matter it was essential to present all the circumstances competently and to place the emphasis correctly. The lawyer therefore pointed out the following. First, our client had been heavily intoxicated; he could not even remember recording the voice message or what exactly he had said. Moreover, shortly beforehand Günther had once again called our client and openly mocked him, describing in vivid detail his intimate life with Marianna, laughing at him, insulting him and clearly provoking him. Under the influence of alcohol and against the background of all these events (the hurt inflicted by his wife, his unrequited love and, above all, the mockery, insults and provocations of his ex-wife's new admirer), our client, unable to bear this humiliation any longer, attempted to defend his own honour and that of his ex-wife. At that moment he was at the peak of an emotional breakdown. In addition, our client has no criminal friends at all and had passed on no addresses to anyone. He is a law-abiding citizen whose circle consists solely of relatives and a few school friends whose reputation has never been tarnished in any way. The fact that he has no criminal friends is further shown by the fact that, by the time we received the investigation file, more than six months had passed. Nothing had happened in that time — our client had made no attempt to act on what he had said in the heat of the moment, and none of the criminal friends he had made up had ever appeared. In light of the above, our client had no intention of actually carrying out the threat. Furthermore, given his far from perfect German, what he said could be interpreted in different ways. And judging by the way it was spoken, the part of the recording about invented criminal friends sounded more like a joke or drunken rambling than a serious threat.
Taking all the circumstances of the case into account — the nature of the relationship between the accused and the injured party, what had prompted the threat, our client's emotional and physical state, and the absence of any intention on his part to cause another person serious harm, let alone death — our client's guilt could only be regarded as minor. In addition, the offence under § 241 of the German Criminal Code (Strafgesetzbuch – StGB) belongs to the category of less serious offences. Procedurally, therefore, the proceedings could be discontinued under § 153 of the German Code of Criminal Procedure (Strafprozessordnung – StPO) on the grounds of minor guilt (Geringfügigkeit der Schuld).
The public prosecutor's office (Staatsanwaltschaft) examined our lawyer's arguments carefully and agreed to the discontinuation of the criminal proceedings under § 153 StPO that we had proposed, bringing the case to a successful close.
Without the help of our firm's lawyer, Nikolai would have faced criminal liability in the form of imprisonment or, at best, a fine. This case shows how important it is to consult a qualified lawyer in criminal matters. By assessing the evidence in the file correctly and choosing the counter-arguments that are decisive for the outcome, a lawyer can help you turn a difficult situation in your favour.
All rights reserved. Copying or republishing this article requires a link to the original source.
