Sonntag, 16.02.2020
Verdict of the Constitutional Court (VGH) of Rhineland-Palatinate on the PoliScan FM1 measurement method
from
Dr. jur. Ingo E. FrommLawyer
Specialist in criminal law
Specialist in traffic law
Give me a call: 0261 - 404 99 25
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After the Constitutional Court of Saarland ruled in its significant judgment of July 5, 2019 on speeding that measurements with the Traffistar S350 speed camera from the manufacturer Jenoptik are not verwertbar, especially since measuring systems of this type do not store all measurement data and a review of the allegationsis thus impossible, there is now another important and eagerly awaited decision by the Rhineland-Palatinate Constitutional Court (VGH) that is of interest to road users (judgment of January 15, 2020, VGH B 19/19). It concerned speed measurements using a PoliScan FM1 measuring device from Vitronic installed in a trailer (so-called enforcement trailer). This measurement is often used nationwide. The Central Fines Office in Speyer had imposed a fine of €120.00 on the complainant for exceeding thespeed limit outside of built-up areas by 34 km/h. In this case, the defense also argued that in a standardized procedure, the defense must have the opportunity to have the case reviewed by an expert, which is only possible if the raw measurement data from the digital measurement series is provided by the fine-imposing authorities. Otherwise, anyone who is caught speeding will not be able to adequately defend themselves against the speeding ticket. Lawyer of the person caught speeding near Wittlich had requested the provision of various measurement data as well as the installation and assembly instructions for the use of the device in an enforcement trailer, as well as the suspension of the proceedings and the obtaining of an expert opinion on the inaccuracy of the speed measurement. All of this had been rejected by the district court, which was in line with the previous case law in the higher regional court district. The higher regional court in Koblenz did not grant legal remedy in the appeal against the judgment of the district court in Wittlich. However, the Rhineland-Palatinate Constitutional Court (VGH) has now accused the Higher Regional Court of Koblenz, the lower court, of having overlooked the fact that there are several contradictory rulings on the matter by various higher regional courts throughout Germany. The Higher Regional Court of Koblenz should therefore not have refused to allow the appeal due to the existing divergence. The Constitutional Court (VGH) of Rhineland-Palatinate was clear in its words, and it is rare for a decision by the Higher Regional Court of Koblenz to be judged not only as "untenable" but also as arbitrary. In other words, the Higher Regional Court of Koblenz must deal with the case again and examine the legal complaint in a substantiated manner. It is likely that the Higher Regional Court will then submit the matter to the Federal Court of Justice for a uniform decision. The Rhineland-Palatinate Constitutional Court is absolutely right with its decision. Only the Federal Court of Justice can clarify the controversial questions. The urgent need for a uniform approach throughout Germany is demonstrated by the reactions to the above-mentioned ruling of the Constitutional Court of the Saarland of July 5, 2019 on a different measurement method. So far, higher regional courts in other federal states, such as Cologne or Berlin, which are ranked below the constitutional courts, had explicitly decided that they could not follow suit and rejected legal complaints from drivers. Confidence in the justice system is not exactly encouraged in such a constellation, in which even the courts are at odds with each other. In the future, measurements taken with the PoliScan FM1 measuring device from Vitronic must be viewed with particular skepticism. In view of the decision of the Constitutional Court (VGH) of Rhineland-Palatinate, ongoing fine proceedings are to be suspended until there is a uniform federal jurisdiction. There is much to suggest that the decision can also be applied to other measurement methods. It is imperative that a specialized lawyer be consulted.
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.