When is resistance against law enforcement officers punishable?

The Bavarian Supreme Regional Court specified the concept of violence in Section 113 of the Criminal Code in a decision dated June 1, 2021 (Az: 202 StRR 54/21). According to this, the assumption of violence within the meaning of § 113 Paragraph 1 StGB as well as a physical attack within the meaning of § 114 Paragraph 1 StGB presupposes that the act is directed against the body of the public official. According to the order, the aim of the action must always be to have an effect on the body of the enforcement officer.

In the decided proceeding, a jogger wearing a balaclava was stopped by police. The police officers had taken away the mobile phone as part of an identity check. According to the findings, the accused had apparently only wanted to make a telephone call to the Turkish Consulate General.

According to the ruling, the decision of the BayObLG also does not explain why it was not possible to wait until the end of the telephone call.

The BayOBLG rightly criticizes the fact that one of the two police officers was only “grazed” once. It should have been discussed whether the beatings against the police officers were aimed at all. Even “rowing” arm movements by a free-standing person are not to be interpreted as blows directed against the body of the other person.

Irrespective of the case described, resistance against law enforcement officials is not punishable under Section 113 (3) of the Criminal Code if the official act is not lawful. Even if the perpetrator mistakenly assumes that the official act is lawful, he remains unpunished.

An official acts lawfully if he is locally and factually responsible, if he complies with the prescribed essential formalities and any discretion that may have been granted to him dutifully exercised (cf. BGH, judgment of June 9, 2015 – 1 StR 606.14).