Dascher was in a black and white situation. He had the choice to do what he did or not to do what he did. He could’t half-threaten the guy with torture and anything more than he did would have been actual torture. If society says that what he did was wrong but justified in that context - fine, he is exonerated. If what he did, despite the circumstances, was wrong in society’s eyes then he is punished depending on the severity - which was great. However, here we seem to have society saying: “you were right, but we don’t want to send a wrong message so we are going to punish you just a little bit.”

The objective, surely, is to define for the next person in that position what society considers right and wrong, and verdicts like this don’t tell me that. They’re judicial cop-outs.

I don’t know if Dascher took the best course of action, but it was a course of action that as a fellow citizen I can live with.

perhaps you’d find ‘Monday-morning quarterback’ a more culturally accessible sporting metaphor.

“It is easy to be the hurler on the ditch”

It is? I wouldn’t know where to start.

Incidentally, I agree with your assessments.

certainly a non-policeman may, under the StGB’s doctrine of Nothilfe, use force against another to prevent a crime. So too may a policeman, of course. At issue here, though, is not Notwehr (a factor that, if present, means that an act is not illegal (rechtswidrig) even if the act fulfils all the elements of a crime (Tatbestandsmerkmale); Nothilfe being simply Notwehr in defence of a third party rather than oneself). What is at issue is a specific clause of the StPO (which is, BTW, like the StGB, a federal law, not Hessian state police law) that prohibits the police from using torture and other illegitimate methods on a suspect. That clause would not apply to Ms von Metzler, who is not a law-enforcement official; it does apply to Daschner.

Whether a hypothetical Ms von Metzler threatening a hypothetical G?fgen in the interrogation room with a baseball bat to make him disclose the location of her brother would constitute Nothilfe is an interesting question. If I remember my Strafrechtsvorlesungen correctly, probably not. But it’s a question I gladly leave to the German courts.

BTW, even under Notwehr one can’t simply do any old thing; it’s not the Tony Martin Act, you know. If it goes beyond what’s necessary, it’s not Notwehr and the act is illegal. Under certain circumstances, though (e.g., the actor goes beyond what’s necessary out of terror), an actor may be non-punishable (wird nicht bestraft) even though the act was illegal.

The term here is “Nothilfe” (= selfdefense by proxy). A private person is allowed to use any force necessary against a criminal threatening an innocent person’s life. That’s a matter of federal criminal law, not state police law.
Isn’t that the case in every jurisdiction?

However the police is required by law to protect anybody it has arrested against attack.

This leaves us in the awkward situation that the police arresting a criminal might endanger the victim. And, of course, why could police kill him if the need arose, but not torture him?

On the third hand parliament has passed a law allowing airliners to be shot down to prevent them being used for a 9/11 style attack. The constitutionality of that is questionable, but clearly equality before the law is violated here.

? 56 StGB forbids probation for only a part of a prison sentence (i.e., in advance; ? 57 deals with Aussetzung zur Bew?hrung of the rest of a prison term already partly served, but that is, I believe, closer to what the English-speaking world would call parole). Without doing a bit of homework, I confess that I do not know what rules would apply to probation for a monetary penalty.

As for the sister, I heard from a legal expert on police law (in the “heute journal”) that it’s allegedly almost permissable for non-officials, certainly relatives, of a threathened person to use physical violence against the perpetrator, a privilege not available to state officials, for good reason. So, in the future, is a more proactive role for brothers, sisters, other relatives in interrogations of this kind conceivable? I mean, if she’d “found” a baseball bat lying around and security had been on a “coffee break” while she threatened him, wouldn’t that then be (almost?) legal, or would it be just a circumvention?

This stuff is tricky.