BGH confirms ruling against darknet marketplace operator

The Karlsruhe Regional Court sentenced the defendant to a total term of imprisonment of six years for several narcotics and weapons offenses as well as for aiding and abetting the acquisition of a semi-automatic handgun in two cases and for trafficking in firearms in combination with involuntary manslaughter in nine cases and with involuntary bodily injury in five cases. The defendant appeals against this verdict with his appeal limited to parts of the conviction. He complains that he is accused of negligent conduct with regard to the killings and bodily injuries.

According to the findings of the now final judgment, the defendant operated a platform on the darknet as sole administrator. This was designed for the greatest possible anonymity and compartmentalization and was provided with the addendum: “No control, everything permitted.” Accordingly, he had set up various subcategories that served to advertise narcotics and the sale of weapons. In November 2015, after his platform was linked by the press to the acquisition of the weapons for the Paris attack on November 13, 2015, the defendant deactivated the weapons category in order to contain the media interest in it. Already on January 2, 2016, he activated this category again, so that it and the requests deposited in it were visible for registered users of the platform.

This platform was used by users to conduct illegal arms transactions without the required weapons permits. The subject of one of these transactions was the sale of a Glock pistol and 567 cartridges to 18-year-old David S., which the seller, Philipp K., who has since been convicted by final judgment, handed over to him on May 20 and July 17, 2016.

In the early evening of July 22, 2016, David S. fired the gun and ammunition at a group of youths in a McDonalds branch in Munich’s Olympia shopping center. Five teenagers died, one was seriously injured. David S. then left the shopping center and shot at those fleeing on foot. In the process, he killed three other people and three suffered serious injuries. He went back to the mall and shot a young man there. During his escape, he injured another person with a gunshot. He managed to hide for about two and a half hours; when he was finally discovered by the police, he shot himself.

David S. had not involved anyone in the planning of this act. The defendant was also unaware of these plans. But he could and should have recognized that the possibility of anonymous firearm acquisition away from the regulated legal market could lead to the acquirer using a firearm acquired in this way to kill and injure people. This is true, especially since the defendant had become aware of such a possibility through the coverage of the Paris attack.

The Federal Court of Justice dismissed the defendant’s appeal as unfounded. The proceedings are thus closed with legal effect.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.