A car driver in Fürth, Franconia, who was wearing a face mask to protect himself from the coronavirus, was fined in early April 2020. The curious case was reported in the media. [1] According to the catalog of fines, the fine amounts to €60, No. 247a BKat. [2] He was coming from the grocery store and was stopped by a traffic police officer. He was charged with violating the ban on veiling.
According to § 23 IV 1 StVO, which applies from 19.10.2017,[3] a road user may not cover or conceal his face in such a way that he is no longer recognizable. The ban is intended to prevent a road user from being unable to be identified after committing an offense and getting off scot-free. Furthermore, the ban serves traffic safety and is intended to ensure an unobstructed all-round view for the driver. 4] The section was certainly not aimed at people who want to protect themselves and others from the Covid-19 pandemic.
The police chief of the Fürth department acknowledged upon inquiry that the regulation was to be applied less strictly than usual because many citizens are currently wearing face protection out of concern about infection with Covid-19.
The office issuing the fines apparently overlooked § 16 OWiG, and the driver was in a justifiable emergency: anyone who, in a present danger to life or limb that cannot be averted in any other way, commits an act to avert the danger from themselves or another is not acting unlawfully if, when weighing the conflicting interests, namely the legal interests at stake and the degree of the danger threatening them, the protected interest significantly impairs thethe protected interest substantially outweighs the impaired interest when weighing the conflicting interests, namely the legal interests involved and the degree of the danger threatening them.
Meanwhile, even the Robert Koch Institute recommends wearing a face mask to protect against the risk of infection. Added to this was the fact that the road user was over 70 years old, and thus belongs to a risk group. It is also understandable that a face mask would be worn in the car, for example if the driver had just taken the car over from someone else. Furthermore, wearing a face mask makes sense if there is a passenger in the car.
[1] www.nordbayern.de v. 7.4.20 ("Fürther trug Gesichtsmaske: Wegen Vermummung verwarnt").
[2] No point is due in Flensburg.
[3] 53rd StVRÄndV.
[4] Heß, in Burmann/Heß/Hühnermann/Jahnke, Road Traffic Law, 26th ed. 2020, § 23 StVO Rn 28a.
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