Less severe case of manslaughter
The less serious case of manslaughter is, according to the prevailing opinion, a rule of sentencing within the homicide offenses of German criminal law , which is standardized in Section 213 of the Criminal Code. The regulation provides for a reduced sentence of one year to ten years imprisonment for the perpetrator if he was provoked by the person killed through no fault of his own and was thereby carried away to the act or if there is another less serious case.
According to established case law , the provision only applies to manslaughter in accordance with Section 212 of the Criminal Code, but not for murder .
development
The regulation was amended and tightened with effect from April 1, 1998 by Art. 1 No. 34 of the sixth law for the reform of criminal law (6th StrRG) . According to the old version, the range of sentences was between six months and five years imprisonment. This sometimes led to extremely mild punishments , which did not do justice to the value of the legal good life and which arose from the contrast to the normal penalties for manslaughter.
It has happened that homicides in partnership relationships were inappropriately punished, since the assertion by the perpetrator alone that he had been massively insulted by the victim in a violent argument was sufficient.
As part of the criminal justice reform, which was unfair privileges to § 217 of the Criminal Code ( infanticide ) canceled, the relation to the homicide provided for a milder penalties and the special psychological situation of the mother immediately upon birth of an illegitimate child should be taken into account. In order not to overlook this constellation, the scope of the second alternative of § 213 StGB was extended.
If there is a killing on request according to § 216 StGB, which constitutes a privilege in its own right, the less serious case of manslaughter cannot be used.
provocation
The regulation names two cases of provocation towards the perpetrator or his relatives - abuse or serious insult . His resolution must cover the respective requirements of the provocation; he must therefore know their actual circumstances and make their own assessment.
Abuse
Under an abuse only severe impairments can (in the sense of injury of § 223 are understood to significantly affect the physical well-being or physical integrity of the Criminal Code). There must not have been any actual damage to health . Mental impairments that lead to physical reactions are also included in the offense, such as a failed, albeit threatening, attack.
insult
The high status of life as a protected legal asset of homicides allows a milder punishment only for particularly serious insults.
According to case law, such an insult occurs only in the case of provocations that can be assessed as serious not only from the perspective of the respective perpetrator, but also from an objective point of view. All relevant circumstances of the perpetrator-victim relationship and the respective development of the crime must be taken into account. According to established jurisprudence, insults that are not serious in and of themselves can open the scope of § 213 StGB if they were the “drop” that “broke the barrel” after a long development.
Sexually related offenses and infidelity have always been important applications of this provision. According to life experience, it is precisely in these cases that many perpetrators tend to provide dubious information, which the court must therefore examine extremely critically. The admission of the perpetrator that the victim wanted to separate from him or her after a long period of estrangement turned to someone else is usually not considered a serious insult. This characteristic is also missing if the provocation originated from an obviously mentally ill person.
Without your own fault
The provocation must also have taken place through no fault of the offender's own, so he must not have caused it to be accusable or contributed to the aggravation of the situation and must have been carried away with the act on the spot .
If he has merely behaved inappropriately or made well-founded reproaches to the victim, it is not yet possible to speak of his own fault . The reaction of the killed must, however, be checked from the point of view of appropriateness. The perpetrator can be accused of ignoring his previous misconduct, which ultimately led to the victim's violent reaction.
Context of action
The provocation has to act the offender on the spot carried away have. The insult or abuse need not have been the only motivation. If other motives have not suppressed the anger, a bundle of motives may also suffice.
The characteristic on the spot does not in all cases require spontaneity in the sense of an immediate context of action. The judge must therefore check whether the anger caused by the insult continued and later discharged, which is still possible after a few hours.
The connection is missing if the perpetrator was already fundamentally determined to kill the victim before the act.
Other less serious case
If the perpetrator was not provoked , there may be another less serious case . According to established case law, an overall assessment is also important here. In this case, the weight of the guilt-reducing circumstances must be comparable to the affect situation. The decisive factor here is not the individual reason for mitigation, but the weight of all the reasons that come together in a situation.
Such cases were accepted, for example, when acting in distress or fleeing, in emergency-like conflict situations (killing of a severely disabled small child ), or when the limits of self-defense were exceeded if the affect had not yet reached the limits of Section 33 of the Criminal Code. If the perpetrator acted out of compassion , if he was part of a chain of command ( wall rifle trials ) or involved in a state injustice system, the reduced range of punishment was also applied. A milder penalty is also possible if there is a typified reason for mitigating acc. the § 21 , § 23 Abs. 2 or § 27 Abs. 2 StGB is available. If several mitigation reasons come together, the principles of Section 50 StGB must be observed.
Individual evidence
- ↑ Thomas Fischer , § 213, Minor serious case of manslaughter, marginal no. 1, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1414
- ↑ Thomas Fischer, § 213, Minor serious case of manslaughter, marginal no. 4, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1415
- ↑ Thomas Fischer, § 213, Minor serious case of manslaughter, marginal no. 6, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1415
- ↑ Thomas Fischer, § 213, Minor serious case of manslaughter, marginal no. 8, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1416
- ↑ Thomas Fischer, § 213, Minor serious case of manslaughter, marginal no. 9- 9a, in: Criminal Code and Additional Laws, CH Beck, Munich 2012, p. 1417
- ↑ Thomas Fischer, § 213, Minor serious case of manslaughter, marginal no. 12, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1418
- ↑ Thomas Fischer, § 213, Minor serious case of manslaughter, marginal no. 13, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1418
