Donnerstag, 18.07.2019
Regarding the request to send the raw measurement data from speed measurements
from
Dr. jur. Ingo E. FrommLawyer
Specialist in criminal law
Specialist in traffic law
Give me a call: 0261 - 404 99 25
E-Mail:
The Higher Regional Courts, the highest court of appeal in matters of fines, have recently rejected the obligation of the fine offices to send the entire series of measurements (digital measurement series together with the life file or alternatively, evidence of the maintenance, repair and calibration of the speed measurement device used since it was first put into operation) to the defense attorney's office. This included, for example, the Higher Regional Court of Koblenz, decision of 17 July 2018 - 1 OWi 6 SsBs 19/18, and also cited data protection concerns that would preclude the disclosure of a large amount of measurement data unrelated to the proceedings.
The publication of the entire series of measurements is sought by defense lawyers to enable the private expert to evaluate this data. The legal profession had always argued that the person concerned could only successfully cast doubt on the reliability of the speed measurement (concrete indications of measurement errors in a standardized measurement procedure) if he had the series of measurements and other measurement documents technically checkedand thereby report any measurement errors found to the court. The Constitutional Court of Saarland has now endorsed this in its judgment of July 5, 2019 (case reference: Lv 7/17), which is very welcome. In the future, courts in Saarland will not be allowed to convict a person without allowing him an effective defense and allowing him to check the validity of the standardized measurement. A person concerned must not be cut off from the outset from investigating such objections.
The fact that the measurement is based on a standardized measurement procedure does not change this result. Initially, the decision is only binding for courts in the Saarland, but it is an exciting question whether the higher regional courts in other federal states (e.g. also in Hesse) will now change tack and modify their case law. If the courts in Saarland and outside of this federal state were to rule differently, the result would be that whether or not the person concerned is convicted and whether or not they are entitled to call in a technical-physical expert would depend on where the person was caught speeding. Lawyer Dr. Ingo E. Fromm, a specialist in traffic law, can confirm from his practical experience that even with standardized measurements, incorrect measurements occur regularly, which are determined by experts without there being any indication of this after evaluating the fine file. It seems inconceivable that only in the Saarland should the person concerned have the right to check the validity of the standardized measurement and not in other federal states. In fact, as the Constitutional Court of Saarland has correctly ruled, the possibility of verification and the comprehensibility of technical processes are among the basic prerequisites of liberal and constitutional proceedings. It is to be expected that in the future, technical-physical expert opinions will be obtained more frequently if the person concerned requests them. This may also lead to a significant delay in court proceedings.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.