The courts have recently ruled again on whether the criminal offense of unauthorized removal from the scene of an accident pursuant to § 142 of the German Criminal Code (StGB) is fulfilled if, for example, someone in a supermarket parking lot causes damage to another vehicle with a shopping cartand leaves the "scene of the accident". Interestingly, this was rejected by the District Court of Dortmund (NZV 2021, 334). Criminal liability was ruled out because there was no "accident in road traffic". The court ruled that the elements of the offense as set forth in § 142 StGB only extend to dangers associated with the process of vehicle locomotion. The driver was unloading his purchases from a shopping cart into the trunk of his car in the parking lot of a shopping center. Suddenly, the shopping cart he was using rolled away and hit the rear of a car parked opposite. The car was significantly damaged, which the user of the shopping cart also noticed. The district court rejected the issuance of the order for payment requested by the Dortmund public prosecutor's office on July 24, 2020.
Controversial case law
Several years earlier, the Düsseldorf judiciary had already had to deal with a similar case. The case went through three instances. In an appeal judgment of May 6, 2011, the Düsseldorf Regional Court (29 Ns 3/11) had acquitted the defendant on legal grounds. In the court of first instance, the defendant had been fined 40 times the daily rate and banned from driving for three months for leaving the scene of an accident. The offense of leaving the scene of an accident requires an accident in road traffic. This is any sudden event that is causally related to road traffic and its dangers. According to the court, such a road-traffic-specific chain of events is lacking in "shopping cart" cases because the accident is not specifically an expression of the dangers associated with the movement of a vehicle within the meaning of the German Road Traffic Regulations (StVO). The vehicle is parked and not moving. However, the defendant was again convicted in the court of appeal (NStZ 2012, 326); the Higher Regional Court found that there was a "typical traffic accident risk". Despite this worryingly broad interpretation of the wording, even the Higher Regional Court considered a driving ban under § 44 (1) StGB to be inappropriate because the accident was not a criminal offense committed in connection with driving a motor vehicle. The Higher Regional Court's decision ends with the conciliatory words that a discontinuation pursuant to § 153a StPO (Code of Criminal Procedure) should be considered.
Road traffic accident mostly affirmed
Other courts outside of North Rhine-Westphalia have also ruled against drivers in similar cases, so caution is advised. Since an accident in road traffic has occurred, the shopping trolley user is obliged to wait (OLG Koblenz MDR 1993, 366; OLG Stuttgart VRS Vol. 47, 15). According to this view, a person who pushes wheelie bins past parked vehicles on public roads so that they can be taken to the garbage truck later is also liable to prosecution (LG Berlin NZV 2007, 322).
Uncertainty about the legal situation
In view of contradictory rulings, it is likely that many shopping cart users lack the insight to do wrong. It cannot be expected of the layman to know better than fully-fledged lawyers and judges who have ruled differently in the past. Many shopping cart users are not even aware that they may be engaging in criminally relevant behavior. The layperson might know that a traffic accident does not necessarily require an accident between two vehicles. However, it cannot be expected that an accident in road traffic can even occur between a shopping cart and a parked car without an engine running. In the event of an unclear legal situation or contradictory court decisions, Section 17 of the German Criminal Code (StGB) can lead to a person being found not guilty "if they could not have avoided this error". In a recent investigation by the public prosecutor's office in Koblenz, the proceedings were dropped due to minor fault. In this case, strong winds had caused a shopping cart to damage another car.
If in doubt, the incident should be reported to the police; leaving a note behind the windshield wiper is not enough.
It is strongly recommended to seek the help of a Lawyer specialized in traffic law.
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.