The Curious Case of “Owl”, the Unknown Prisoner

German environment activists have been protesting the planned destruction of a part of the Hambacher Forest to allow the expansion of a coal mine. There have been many arrests, injuries, and even a death (a journalist fell from one of the treehouses activists have built).

One of the activists was tried and convicted of attempting to kick a police officer. The first remarkable thing about this case is that, at the time of the assault, her hands and feet were bound (g). Officers gave conflicting accounts of how exactly she planned to kick one of them in this position. Another odd thing is that the judge gave her an extremely harsh sentence by German standards, 9 months’ imprisonment without probation. She was just released from prison.

But the most curious thing about the case, at least to me, is that the court never found out who she is. She had no identification with her when she was arrested, and refused to cooperate with police and court attempts to identify her. She’s still known only as Eule (Owl). I know of no other criminal case ever in which the defendant was arrested, put on trial and prosecuted, without their identity ever being confirmed.

This shows you, on the one hand, how powerful Germany’s obsession with privacy can be. If you’ve never been arrested, your fingerprints will not be on file anywhere. Even cops can’t force you to reveal your identity, or take other steps to investigate and determine who you are. So if you stubbornly refuse to cooperate, there’s no way even the combined force of the German state can find out who you are.

On the other hand, this seems like yet another rule of German criminal law which is going to have to be tightened. This case involved an arrest at a protest, which isn’t a major threat to public safety, in my view. But what if word gets around that you can hide your identity from the state forever? Do we want violent criminals to be able to be convicted, and even serve their sentence, and then be released in to the community without anyone knowing who they are?

I’ve argued here before that German criminal laws were written in an era in which Germany was a relatively homogeneous, tight-knit society with a broadly-shared sense of right and wrong, high social trust, and low crime levels. Believe it or not, German criminal law is based on the idea that accused criminals will cooperate with the system, and in return the system will treat them more like wayward family members than dangers to society. Confess, my son, and we will help you get back on the right track.

This system was never designed to foil active attempts to undermine it by clever, determined criminals — especially foreigners who don’t share, and may not even be aware of, the presumptions and ethical world-view of the average German. If Germany wants to achieve meaningful sanctions and deterrence of these folks, it’s going to have to tighten its laws.

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