Murder (Germany)

Murder is in Germany one of § 211 of the Criminal Code (CC) recognized fact of substantive criminal law , the one with the sentence of life imprisonment is threatened.

The murder of a person is characterized by a greater injustice than manslaughter . According to current law, this greater injustice is indicated by the implementation of the so-called murder marks. As a result, murder is threatened with the higher and fundamentally mandatory sentence of life imprisonment compared to other homicides . What exactly this higher injustice is to be seen in is the subject of an extensive and long-lasting legal dispute.

Since the Imperial Criminal Code was enacted in 1871, the offense of murder has undergone considerable legislative and legal dogmatic development. That is precisely why it is repeatedly criticized and the subject of reform projects. However, the paragraph has not been fundamentally changed since a major reform by the National Socialists in 1941 (RGBl. I p. 549). The legal situation has therefore been further developed since then, above all by jurisprudence and jurisprudence .

According to crime statistics , the number of murders in Germany has declined: Including attempts, there were 1,299 cases in 1993, or 1.6 per 100,000 inhabitants. In 2019 it was 720 cases, or 0.87 per 100,000. This almost halved the frequency in this period. This decrease is therefore much larger than that of total crime , which fell by 21% over the same period. The decline in crime in Germany follows the trend that can be observed in all western countries.

In 2015, 68.4% of relatives or close acquaintances were suspected of committed murder and manslaughter . Only recently has the number of victims of committed murder and manslaughter in partnerships been recorded . In 2017 there were a total of 455 victims, of whom 364 were women (80%) and 91 men (20%). Murder is often mentioned in the context of internal security .

Penalty

In jurisprudence it is controversial why the law differentiates between murder and manslaughter. A uniform concept to explain this distinction therefore does not exist to this day. Rather, the various explanatory approaches form the basis of different results of the interpretation of the law . The inconsistent understanding of the murder paragraph is in turn the cause of considerable disputes over individual dogmatic questions. In this respect, two camps in particular have developed that want to base the distinction either on a particular socio-ethical reprehensibility or on the particular danger of murder.

Particular reprehensibility

There is disagreement among the representatives of the so-called reprehensible conception as to why murder should be particularly reprehensible compared to manslaughter and therefore should be punished more severely.

In this regard, reference is made in part to the extreme disparity between ends and means that characterizes the murder. This is revealed in the fact that the perpetrator "walks over corpses" in a particularly selfish manner in order to achieve his comparatively futile goal. In the case of killing out of greed (Section 211 (2), case group 1, variant 1 of the Criminal Code), the murder allegation is therefore not based on the perpetrator's pursuit of profit, but on the fact that he is pursuing this at the expense of a human life. While the murder characteristics of the lower ( case group 1 ) and criminal ( case group 3 ) motives can be explained in this way, this approach fails in the case of the murder characteristics related to the commissioning ( case group 2 ) such as cruelty or insidiousness. In addition, this approach is countered by the fact that manslaughter, conversely, could only consist in the killing of a person for which there is a recognized, understandable reason. However, since hardly any reason for killing other people is recognized, there would hardly be any room left for the application of the manslaughter paragraph ( § 212 StGB).

In contrast, other representatives point to the perpetrator's particularly reprehensible attitudes that characterize the murder. It is crucial that the perpetrator violates a minimum of moral requirements with his act. This should be determined by taking an overall view of the perpetrator's personality and the circumstances of each individual act. In the application of the law , this leads to the addition of a subjective element to the murder features related to the crime. The murder criterion of cruelty (Section 211 (2), case group 2, variant 2 of the Criminal Code) should not be fulfilled when the person inflicts particular pain, but only when this occurs out of a callous disposition. This is countered by the fact that the crime-related characteristics of murder are not explained in this way either. Rather, they would simply be expanded to include subjective elements, which in legal practice mainly lead to difficulties in providing evidence.

Particular danger

The representatives of the so-called concept of danger , which the Federal Constitutional Court also relies on , are becoming increasingly important in specialist literature. It is based on the assumption that the characteristics of the murder are in each case indicators of a particular criminal energy of the perpetrator and therefore suggest that he is particularly dangerous. Representatives of this position use the theories of punishment for a more detailed explanation of the murder features .

The characteristics of murder in case groups 1 and 3 were linked by Gunther Arzt with the idea of ​​special prevention. He assumed that they were characterized by a particular risk of repetition, which in particular legitimized life imprisonment as a kind of precautionary measure. However, it is held against that he as the boundary between imprisonment and secured custody blurs.

Most advocates of the concept of dangerousness, on the other hand, fall back on the idea of ​​general prevention to legitimize the murder paragraph. Accordingly, the absolute threat of punishment in Section 211 of the Criminal Code is primarily intended to deter potential perpetrators and thus strengthen the general public's sense of security. That is why a murder should be characterized by such crime modalities that can shake the general public's sense of security and thus have a disintegrative effect. The special scope of punishment is based on the particular social danger of murder. The objection to this, however, is that this position does not fully explain the murder paragraph either. In particular, the murder characteristic of particularly low motives (Section 211 (1), case group 1, variant 4 of the Criminal Code) cannot simply be associated with a particular danger to the general public's sense of security.

Legal position

In its current version, which has been in force since January 1, 1975, the murder section of the German Criminal Code reads :

Section 211 murder

(1) The murderer is punished with life imprisonment .

(2) Whoever is a murderer

out of lust for murder, to satisfy the sexual instinct, out of greed or otherwise for low motives,

insidious or cruel or with dangerous means or

to make another criminal act possible or to cover it up,

kills a person.

According to the now generally accepted criminal law interpretation, a punishment for murder is therefore dependent on two conditions:

1. The perpetrator must have killed another person and willfully
2. have realized one of the so-called murder features listed in paragraph 2.

According to the wording of the law, this then necessarily results in a life sentence.

Constitutionality

This absolute threat of punishment in the murder paragraph is considered constitutionally problematic. It conflicts with the principle of guilt-appropriate punishment , which is expressly regulated in Section 49 of the Criminal Code , which the Federal Constitutional Court derives from the rule of law , which in turn is laid down in Article 20 of the Basic Law (GG). According to this principle, a penalty may only be imposed to the extent that the person concerned can be individually accused of his act. This is to ensure that criminal law is not used to retaliate for events for which the convicted person is not responsible. It is therefore necessary for the judge to have some leeway in determining the sentence in order to be able to assess the circumstances of an individual case, which, however, prevents the clear and absolute threat of punishment under Section 211 StGB.

Nevertheless, the threat of punishment under Section 211 of the Criminal Code was recognized by the Federal Constitutional Court as constitutional. It demanded, however, that the judge should come to a punishment commensurate with the principle of guilty punishment in individual cases. How this is to be achieved was left open by the court. Therefore, two possible solutions to this problem could subsequently be developed. On the one hand, it was proposed to reinterpret the threat of punishment in Section 211 of the Criminal Code "with up to life imprisonment" (so-called legal consequence solution ). On the other hand, this was countered by the suggestion of a generally cautious application of the paragraph, which is achieved through a closer understanding of the characteristics of the murder (so-called factual solution) and should only cover those cases in which life imprisonment seems appropriate to guilt.

Although representatives of academic legal doctrine are almost unanimously in favor of the second alternative, legal practice initially resorted to the legal consequences solution and has since faced constant criticism. In the meantime, however, both approaches have been combined with one another in practice, so that an overall restrictive application of the murder paragraph is achieved. Therefore, legal disputes of opinion take place today mainly in the theoretical-fundamental and in peripheral areas.

Object and act

Its application initially requires the killing of another person. In this respect, the murder still corresponds to manslaughter . The method of killing is basically irrelevant. However, an insidious, cruel or dangerous approach can at the same time realize a murder characteristic of the second group of cases .

However, it is disputed whether and under what circumstances a murder can also be committed by failure to do so under Section 13 of the Criminal Code, or whether the perpetrator has to act actively in any case. In particular, representatives of the solutions to the offense object that failure to intervene in an ongoing, fatally ending causal process can hardly be assessed as an act of killing which justifies the maximum penalty. Therefore, the possibility of murder by omission violates the requirements set by the Federal Constitutional Court for compatibility with the rule of law. The case law, on the other hand, generally assumes the possibility of murder by omission and only requires certain restrictions for individual characteristics of murder. By reinterpreting the threat of punishment, it has the necessary restrictive application and thus achieves conformity with the principle of punishment commensurate with guilt.

In any case, the perpetrator has to contribute to the death of another person, possibly by not intervening . Contrary to common usage, no murder is suicide because it is not committed on any other person. Furthermore, murder cannot be committed either on unborn children (an abortion is an option here ) or on people who are already brain dead .

After all, the perpetrator must act with intent with regard to the subject and act of the crime , the causal process set in motion and the characteristics of the murder.

Homicidal traits

In contrast to the original criminal law conception , according to today's understanding, such a deliberate killing of another person only becomes murder if one of the variants mentioned in paragraph 2 has also been carried out, which are commonly referred to as characteristics of murder. It is precisely in their restrictive interpretation that the different views on the criminal grounds for murder manifest themselves . The law summarizes them in three groups of acts:

Case group 1 - Low motivations

The first of these groups of cases links the existence of murder to an act “out of lust for murder, to satisfy the sexual instinct, out of greed or otherwise for low motives” and thus to a particularly low motive. Especially advocates of the reprehensible concept point out that this formulation makes “lust for murder, satisfaction of the sexual instinct and greed” examples of low motives. They therefore propose to make the existence of a murder dependent on an overall judgment of the circumstances of the crime. However, this view could not prevail.

Lust for murder

The murderous characteristic of lust for murder is generally considered to be realized when the killing of a person serves the perpetrator as an end in itself . This should always be the case when the perpetrator's only concern is to see a person die, to show off, to stimulate himself nervously or to pass the time or when the perpetrator regards the killing of a person as a sporting pleasure. It is crucial that the perpetrator had no reason to kill his victim. The particular reprehensibility or danger is seen in the fact that the perpetrator shows with his act a fundamental disregard for the life of others, which manifests itself in any interchangeability of his victim. A limitation is stipulated that the perpetrator acts with full intent , which in particular means that killings with contingent intent can be excluded.

Satisfaction of the sex drive

Recorded cases of sex murders from 1987-2019

The murder characteristic of killing for the satisfaction of the sexual instinct is primarily intended to encompass three case constellations:

1. Lust murders in the narrower sense, in which a " sexual offender " wants to obtain satisfaction by killing himself
2. Cases of necrophilia in which the perpetrator first kills the object of his desire and then sexually assaults him
3. Cases of rape in which the perpetrator approves of the fact that his victim will die as a result of the use of force

The act of killing must therefore be directly related to the satisfaction of the sex drive and must be directed against the sexual victim himself. Whether a sexual act actually takes place is irrelevant. Acts of jealousy are therefore just as little recorded as the killing of third parties, such as witnesses, to enable sexual intercourse. In the case of Armin Meiwes (the so-called cannibal von Rotenburg ) in particular, it was disputed whether such a direct connection can also be assumed if the perpetrator only wants to obtain sexual satisfaction when viewing video recordings of the act of killing later. Although so represented by the Federal Court of Justice and the predominant doctrine, there was still occasional violent criticism. The reprehensibility or danger of the act is seen in this murder characteristic in the fact that the perpetrator makes life for the purpose of his sexual interests and thus reveals himself to be reckless in a socially damaging way.

Jill Bühler devoted a separate section to the outdated concept of lust murder, against which the sexologist Friedemann Pfäfflin in particular turned in her book Das Unnuütze Wissen in der Literatur, which she published together with Antonia Eder .

The police crime statistics record murder in connection with sexual offenses . This shows that this is a rare offense with a strong downward trend. Since 1987, the highest number was 58 cases in 1988. Since then, the number of cases has fallen into the single digits. In 2019 there were 4. In comparison, there were between three and five thousand crimes against life during this period . The pattern of a decline in homicides - usually since the early 1990s - can be found in all Western countries. It's part of an overall decline in crime .

greed

Typical cases of the killing of greed are the robbery , the return for payment contract killing and the killing of obtaining a life insurance or inheritance . What they have in common is that the perpetrator kills exclusively or primarily to increase his or her fortune. However, there are considerable deviations in the understanding of the norm, depending on what its reason for punishment is seen. Representatives of the concept of reprehensibility, to which the Federal Court of Justice also belongs, see in greed as a reprehensible instrumentalization of life for economic purposes. Insofar as the reprehensibility is seen in a means-end disproportion, some representatives take the characteristic of greed as given precisely when the killing is committed for the sake of a small gain. Most legal scholars, however, reject such offsetting of human life against economic values. They see the reprehensibility of the pursuit of profit justified in the fact that the perpetrator is prepared to destroy human life in order to gain economic advantages. In judgments in particular, jurisprudence often uses moralizing adjectives, e.g. B. "repulsive pursuit of profit" or "pursuit of material goods or advantages, which in its recklessness and ruthlessness far exceeds the tolerable level". Proponents of the concept of danger, on the other hand, refer primarily to a dangerous character disposition of the perpetrator, which should be expressed in the killing. According to this, avarice occurs if the killing was carried out out of a ruthless and unrestrained pursuit of wealth growth and is not limited to resolving a one-off conflict. On the other hand, there should be no greed murder, in particular if the perpetrator carried out the killing out of an emergency.

Since greed as a murder feature is primarily economically oriented, there are some borderline cases, the classification of which is extremely controversial in legal literature: Not every object desired by the perpetrator (objectively or subjectively for the perpetrator) has an economic value. In this sense, objects of pure connoisseur value are worthless , but also intoxicants that the perpetrator immediately consumes or incriminating evidence that he wants to destroy. However, since greed presupposes killing for a property interest, most jurists consider the criterion of greed as not fulfilled. A killing is also conceivable, which serves less to increase and more to preserve the property. This is the case, for example , when the perpetrator kills a creditor (e.g. a maintenance claim) in order to evade his claim. Especially advocates of the concept of dangerousness reject the application of the murder paragraph to these cases at least if the concrete assertion of a corresponding claim is to be regarded as a one-off conflict situation. Occasionally, such “defensive” acts are not classified as greedy at all, while jurisprudence and predominant doctrine equate “wanting to have” and “wanting to keep” as property interests and also assume greed murders. Finally, the perpetrator can covet an asset to which he is actually entitled. This is especially the case if he has a claim to benefits against a victim who is unwilling to pay . Since the interest of the perpetrator in these cases is directed towards the establishment of a legally compliant state of the property order, representatives of the reprehensible concept deny its reprehensibility and therefore no greed is assumed. In particular, it is stated that criminal law generally rates the use of force to enforce legitimate claims more lenient. However, this does not apply to the view that bases the reprehensibility on an end-means imbalance. Because especially with justified claims, the perpetrator can fall back on state aid in order to realize his claim. In this respect, the disproportion appears particularly blatant in these cases. Representatives of the concept of danger classify the question of the legality of a claim as being irrelevant to the social danger of the perpetrator's behavior.

Other low motives

The murder characteristic of the other base motives is a general clause and as such is subject to special criticism . According to constant jurisprudence, this is a motive "which, according to general moral evaluation, is at the lowest level, determined by unrestrained, instinctual selfishness and is therefore particularly reprehensible, even contemptible." Perpetrator to be determined. Regularly are foreigners and racial hatred and hatred commonly known as examples of such particularly low motives. Other typical examples, which in any case require an overall assessment of the individual case, are reactive motives such as anger , envy , revenge or jealousy . Also honor killings are classified here. On the other hand, there are cases in which the perpetrator calculates the killing to achieve his goals, for example to be able to enter into a new marriage or to assume the identity of his victim.

Which case constellations are to be subsumed under the other low motives, their indefinite definition is accordingly very controversial. Above all, the jurisprudence regularly counts the prevention of an arrest or the escape from a prison to the lower motives. The question of whether political motives for a killing can be classified as lower motives is also very controversial.

Case group 2 - Reprehensible inspection method

The second group of cases is linked to the external appearance of the killing, while the motives of the perpetrator are irrelevant here. Therefore, the characteristics of murder in this case group are sometimes referred to as objective characteristics of murder. They classify a killing as murder if the perpetrator carried it out “insidiously or cruelly or by means that are dangerous to the public”.

Insidiousness

The understanding of the murder characteristic of maliciousness depends in a central way on whether the criminal reason for the murder is seen in the particular reprehensibility of the perpetrator's behavior or the particular danger for the victim. Accordingly, two basic understandings of this characteristic of murder can be distinguished, the boundaries of which, however, often blur into one another, especially in the application of the law:

By advocates of the concept of danger as well as by the jurisprudence, insidiousness is defined as the exploitation of the victim's innocence and defenselessness to kill him. The thus purely victim-oriented definition means that the motivation of the perpetrator as well as the degree of his guilt remain irrelevant for the question of a punishment according to § 211 StGB. Since this appears to be problematic in view of the principle of guilt-appropriate punishment, the murder characteristic of maliciousness is subject to considerable criticism . In addition to the legal consequences solution, the case law also falls back on the idea of ​​the factual solution and determines additional factual features . These include a “hostile direction of will” on the part of the perpetrator and the crossing of a special “ inhibition threshold ”. This case law was expressly confirmed by the Federal Constitutional Court in 2001 as being in conformity with the constitution. In this sense, he is considered innocent who does not expect an attack on life or limb in the actual situation. In detail, however, two questions are extremely controversial. On the one hand, it is discussed whether innocence requires an actual feeling of security or whether a lack of awareness of danger is sufficient. On the other hand, it is controversial whether innocence requires at least the ability to actually feel safe. While the first question is largely answered in the negative, the views on the second question differ. In accordance with the requirement of a restrictive application, insidiousness is only recognized in the fact that the perpetrator makes use of a specific situation that leads to the victim's innocence. Accordingly, small children, the unconscious and the seriously ill are almost unanimously denied the ability to be innocent in the sense of the murder paragraph, since they are constantly innocent due to their condition. Instead, in these cases, the focus should be on whether a third party willing to protect (e.g. the parents) existed and was innocent. In the case of the unconscious and sleeping, however, a differentiation is sometimes made according to whether the victim lay down in the expectation that nothing would happen to him. In the actual situation, the innocence must have led to the victim's defenselessness. The victim must therefore have been considerably restricted in his willingness to defend himself. After all, the perpetrator must have consciously exploited this very situation for his killing act. The prevailing doctrine in particular suggested that increased demands be placed on this awareness of use. Accordingly, a treacherous murder requires a particularly devious and devious approach. So far, this has received little attention in legal practice.

Representatives of the reprehensible concept oppose this by defining insidiousness as a particularly reprehensible breach of trust, or sometimes combining both approaches. It is therefore crucial that the perpetrator exploits the victim's particular trust in killing. Since this definition, in particular, classifies the killing of a so-called domestic tyrant as murder, it could hardly prevail.

cruelty

The murder characteristic of cruelty characterizes an act of killing in which the victim is caused particular pain or agony. In order to increase the injustice of the killing as such, the torture inflicted must go beyond what is necessary for it. This is the case, for example, when the perpetrator deliberately slows down the death of the victim (e.g. killing by dehydration / food deprivation) or intensifies the suffering (e.g. crucifixion of the victim, torture). Jurisprudence and representatives of the reprehensible concept also demand a callous, ruthless attitude on the part of the perpetrator. On the other hand, the danger concept emphasizes that the increased infliction of suffering as such is socially dangerous and justifies the increased punishment. Representatives of this position therefore consider the additional attitude requirement superfluous.

Publicly dangerous means

Killing using an agent that is dangerous to the public also counts as murder. This is characterized by the fact that in the concrete factual situation it can endanger the life and limb of a majority of people because the perpetrator cannot control the danger emanating from him. Typical cases of this are the detonation of a bomb in a busy place, stones being thrown from a motorway bridge or arson in a house inhabited by several people. However, this should not obscure the fact that the nature and intensity of the danger to be created is controversial. In this respect, no uniform direction has yet emerged in the case law. Representatives of the reprehensible concept, like the jurisprudence, also demand an additional subjective requirement with regard to the publicly dangerous crime. You then see the aggravation of the punishment based on a particular recklessness of the offender. On the part of the dangerousness concept, this is in turn considered to be dispensable, since the manner in which the offense was carried out already justifies the particular dangerousness and thus the increased punishment.

Case Group 3 - Offense Objective

The third group of cases finally establishes a connection between the killing and another crime. Accordingly, it is always considered to be a murder if the perpetrator kills another person, "in order to make another crime possible or to cover it up". In part, this is seen as a special case of low motives.

If the judgment assumes that the accused wanted to cover up a different criminal offense than assumed in the indictment, this exchange of the reference offense in the case of cover-up murder requires a judicial notice in accordance with Section 265 StPO.

Enablement intent

The intention to enable is an undisputed trait of murder. Their legitimacy is based both on the reprehensible and the dangerous conception on the fact that the perpetrator destroys a human life in order to commit further injustice. It is necessary in this respect that the killing offender aims to encourage the implementation of another criminal offense. Since it is a subjective element of the offense, only the idea of ​​the perpetrator is relevant here. If he kills a person in order to enable an act which he erroneously considers to be punishable, it is murder. Conversely, it is not a case of murder either if he kills a person because of a planned act which he erroneously considers not punishable.

Concealment intention

On the other hand, the murder feature of the intention to cover up causes considerable difficulties. The Federal Court of Justice sees its justification with the representatives of the reprehensible concept in the fact that it is a special case of low motives. Specifically, the perpetrator instrumentalizes people's lives for selfish goals. This is countered, however, by the fact that the tendency towards self-favoring is otherwise considered an attenuating circumstance (e.g. in Section 157 or Section 258 (5) of the Criminal Code). Instead, advocates of the concept of dangerousness see the characteristic of murder as justified by the fact that the perpetrator sees the destruction of a human life as an effective means of evading criminal liability. In order to realize this murder characteristic, the perpetrator must specifically want to prevent the discovery of his act or his identification. As with the intention to make it possible, only the perpetrator's point of view is decisive. However, it is extremely controversial whether a murder can be committed by omission because of the intention to cover up if the perpetrator does not seek help in order not to be recognized as the perpetrator by third parties and thus cause the death of his victim. While the Federal Court of Justice previously emphasized that not uncovering an act is not covering it up, it has now abandoned this case law. It is still unclear whether the perpetrator should just want to prevent his criminal prosecution. The jurisprudence denies this question and also regards a murder with the intention of concealment as given if the perpetrator wants to prevent the victim's acts of revenge by killing. This is countered, above all by the literature, that this view is excessive and extremely indeterminate .

Legal consequences

As soon as the perpetrator has committed murder, the law attaches a number of legal consequences to it . However, these are not limited to the threat of punishment, but also extend in particular into the procedural area:

Lifelong prison sentence

The law expressly and compulsorily orders life imprisonment for murder. With regard to a later suspension of parole , the court must therefore in accordance with § 57a paragraph 1 sentence 1 number 2 StGB determine in the judgment whether the perpetrator is particularly guilty . According to the law, deviations are only possible if other laws stand in the way of life imprisonment. This is in particular in the youth criminal law § 18 of the Youth Courts Act (JGG), according to which a youth penalty has a maximum duration of 10 years. A reduced criminal liability according to § 21 StGB has a mitigating effect . Another important reason to mitigate the punishment is the leniency notice under Section 46b of the Criminal Code.

Since the absolute threat of punishment under Section 211 StGB can collide with the Basic Law, the punishment according to Section 49 StGB reduced to 3 to 15 years even if it appears entirely inappropriate. In practice, however, this is rarely used and mostly only for treacherous murders.

Jurisdiction

For the conviction of a murder is acc. § 74 paragraph 2 number 4 in conjunction with § 74e number 1 of the Courts Constitution Act (GVG) the jury court is responsible. While this was still a real jury court until 1924 , this term now only describes a large criminal chamber of the regional court , which is staffed with three professional judges and two lay judges . Against their judgment is no appeal possible, but can audit be inserted. The locally responsible criminal panel of the Federal Court of Justice, which is made up of five federal judges , decides on this in accordance with Section 135 of the GVG .

Statute of limitations

→ Main article : Statute of limitations debate

Until 1969, the statute of limitations for murder was 20 years. Since the murders committed during the Nazi era would be statute-barred in 1965 at the latest, the law on the calculation of criminal statute of limitations was passed in 1965 , Section 1 of which excluded the period from the end of the war until the end of 1949 from the calculation. After broad public discussion, the grand coalition decided to abolish the statute of limitations for genocide and to increase it to 30 years for murder. In 1979, murder was added to the provision in Section 78 (2) of the Criminal Code, which previously only exempted genocide from the statute of limitations.

Murder and genocide as well as crimes against humanity (relevant under international law) are consequently not subject to either the statute of limitations on prosecution or enforcement (“murder never expires”). If the perpetrator dies, ongoing proceedings are only permanently suspended under criminal law so that third parties can be further investigated as accomplices.

This statute of limitations is of particular importance in dealing with Nazi injustice. Especially since it was established in the judgment against John Demjanjuk that no proof of direct involvement in a homicide in an extermination site is required for a conviction, the provision has become more important. The proceedings against Oskar Gröning were also based on them. However, since only a few perpetrators from the Nazi era are still alive, there are repeated calls for the special statute of limitations to be abolished for reasons of legal peace .

attempt

Since murder with its threat of punishment is a crime under Section 22 of the Criminal Code , its attempt is also punishable. In this respect, two options can be considered:

1. The act can go wrong altogether, so that the victim survives or dies for a completely different reason. For an attempted murder it is necessary that the perpetrator has at least a decision to act in relation to the death of a person, starts killing that person and thereby realizes a murder characteristic.
2. The act can objectively be categorized as manslaughter , while the perpetrator himself erroneously assumes that he can realize a murder feature.

In principle, an attempted murder is also punished with life imprisonment and is subject to the same statute of limitations. However, the court can mitigate the sentence in accordance with Section 23 (2) StGB. In this case, the sentence under Section 49 (1) number 1 StGB is 3 to 15 years.

Incitement and aiding and abetting

Anyone who makes a corresponding contribution to the killing of a person can always be punished for inciting or aiding and abetting if he knows on the one hand that the perpetrator realizes a murder characteristic and at the same time fulfills this himself. How an instigator or perpetrator are to be punished if they do not realize the murder characteristic themselves is the subject of a fundamental dispute between jurisprudence and prevailing doctrine.

Basically, in German criminal law, a main act and participation in it are ancillary . This means that inciting or aiding and abetting an act depends on the criminality of the main act. However, this principle is modified by Section 28 (1) StGB. If special personal characteristics justify criminal liability, they must therefore also be available to an instigator or accessory himself. Otherwise the penalty according to Section 49 of the Criminal Code should be mitigated. The case law classifies the murder characteristics of the 1st and 3rd case group as motives and therefore such special personal characteristics. If the perpetrator acts out of a base or criminal motive, the punishment for the participant will be lessened, unless he himself realizes a murder feature. If, on the other hand, the perpetrator realizes a murder characteristic of the second case group, this must be attributed to the participants. However, the case law itself also sets limits to the possibility of mitigation. No mitigation is possible in the case of incitement or aiding and abetting manslaughter. However, since Section 28 (1) in conjunction with Section 49 (1) StGB enables a lower minimum sentence, participation in murder can theoretically be punished more leniently than participation in manslaughter. To prevent this, the Federal Court of Justice is assuming a corresponding blocking effect. The case law assumes a further limitation in the constellation of crossed murder features , in which the perpetrator and participant each realize different murder features. According to Section 28 (1) of the Criminal Code, the participant's punishment would also have to be reduced here. However, since he does not deserve this, the Federal Court of Justice makes an exception here too. This view is heavily criticized by the literature, as such an exception is not provided for in the wording of the law.

The doctrine, however, understands all murder features as aggravating grounds. With regard to crime-related features of murder, this leads to no different results. However, if they are to be classified as special personal characteristics, according to this view, Section 28 (1) of the Criminal Code instead of Section 28 (2) of the Criminal Code applies. The elements of the offense that aggravate the punishment must therefore be carried out by each party involved. In particular, a participant can accordingly also be punished for inciting or aiding and abetting murder if the perpetrator only commits manslaughter while the participant himself realizes a murder feature. The exceptions developed by the Federal Court of Justice are not necessary here, as their result already results from the application of the law.

Relationship to other offenses

Apart from the controversial relationship to manslaughter , which is the subject of considerable criticism of the murder paragraph, murder must be distinguished from several other offenses and can be carried out at the same time:

Demarcation

Since murder can only be committed on a person who has already been born, an abortion is not a murder in the legal sense. Nonetheless , it is criminalized by § § 218 ff. StGB. However, this makes it necessary to draw a clear line between the two offenses, as which the onset of the opening labor has established itself. In the case of a caesarean section , the opening of the uterus is the relevant point in time. The protection under criminal law begins a little earlier than the legal capacity under civil law , which according to Section 1 of the German Civil Code (BGB) begins with the completion of the birth .

The applicability of murder ends with the onset of brain death . From this point in time, among other things, an act of violation on the corpse due to disturbance of the peace of the dead according to Section 168 of the Criminal Code.

Furthermore, the murder requires at least contingent resolution in terms of killing a person and realizing the characteristics of the murder. If the offender acts with intent to kill, but without being aware of the realization of a murder feature and without wanting to do so, he is only liable to prosecution for manslaughter . If a perpetrator causes the death of a person without any intent to cause harm, he can only be accused of negligent homicide acc. § 222 are prosecuted. Finally, a series of so-called success - qualified offenses covers the case that the perpetrator intentionally commits another offense and negligently causes the death of a person. There is no murder in the form of killing on request , which is covered by Section 216 of the Criminal Code.

In addition, there is no murder in the lawful exercise of duty, which intervenes as a justification and does not make a killing carried out in this way appear to be an injustice. Accordingly, the killing of opposing soldiers in the context of military conflicts - also under international martial law - is not regarded as murder. The striking statement “ soldiers are murderers ” is therefore factually incorrect from a legal point of view.

Competitions

If the perpetrator realizes several characteristics of murder through the same act, it is only a matter of different forms of commission of the same offense.

Murder and manslaughter can actually be committed. Thus the perpetrator commits attempted murder if he acts under the mistaken idea of ​​killing a victim insidiously, and in fact accomplishes an accomplished manslaughter when the victim actually dies. If the perpetrator kills on request, Section 216 StGB takes precedence over all other homicides.

The relationship with crimes of bodily harm causes particular problems . Today it is generally accepted that assault is a necessary transition stage for murder. Therefore, the injustice of bodily harm is completely covered by the murder paragraph, so that § § 223 ff. StGB are superseded as subsidiary criminal provisions. If the victim does not die, attempted murder / manslaughter is possible as a unit of bodily harm.

In the case of robbery and murder, the offense of robbery resulting in death is usually also in accordance with Section 251 StGB also implemented. To that extent, this is also a case of unity. The same applies to violations of the Weapons Act .

history

In Germany, the idea of ​​a murder of its own has a long tradition. A differentiation between malicious and accidental killings can already be demonstrated for the Teutons . The concealment of the deed, which was then considered an indication of bad intent, became a fixed fact of murder in the High Middle Ages . With the reception of Roman law in the late Middle Ages, however, there was a break with the tradition of the Germanic legal system . Instead, the Constitutio Criminalis Carolina in 1532 took up models of Roman law . As early as the republican period , the Romans made a distinction between killing with foresight (propositum) and killing with affect (impetus) . The Prussian General Land Law and the Criminal Code of the North German Confederation later adopted this distinction, known as the principle of reflection . It is reflected in popular culture to this day in the often strong focus of crime novels on the so-called “murder motive” of the perpetrator.

Original conception (1872)

The penal code of the North German Confederation was editorially revised in 1872 as the Reich Penal Code . It intended for crimes against life:

Section 211

Anyone who deliberately kills a person will be punished with death for murder if he has carried out the killing with deliberation.

Section 212

Anyone who deliberately kills a person, if he has not carried out the killing deliberately, will not be punished for less than five years for death in prison.

During the Nazi era , this definition of murder , which is still used today in Belgium , Luxembourg , France , Finland , the Netherlands , Israel and the United States, came under increasing criticism. Since the deliberation principle can be traced back to Roman legal notions, it was increasingly perceived as "un-German". In contrast, one wanted to “return” to a demarcation of murder and manslaughter based on “ethical criteria”. In addition, the principle of deliberation stood in obvious contrast to the deliberate mass killings of the National Socialists, which radicalized in 1941. The Limburg bishop Antonius Hilfrich protested in a letter to the Reich Minister of Justice on August 13, 1941, a few weeks before the revision of paragraph 211, against the euthanasia killings in the Hadamar killing center with the words: “The population cannot understand that Planned actions are carried out that are punishable by death according to § 211 StGB! "

New conception (1941)

Especially at the instigation of Roland Freisler , the President of the People's Court , Sections 211 and 212 StGB were fundamentally redesigned with the law amending the Reich Criminal Code of September 4, 1941:

Section 211

(1) The murderer is punished with death.

(2) Whoever is a murderer

- out of lust for murder, to satisfy the sexual instinct, out of greed or otherwise for low motives,

- insidious or cruel or by means that are dangerous to the public or

- to make another criminal act possible or to cover it up,

kills a person.

(3) If in special exceptional cases the death penalty is not appropriate, the penalty is life imprisonment.

Section 212

Anyone who deliberately kills a person without being a murderer will be punished as a manslaughter with life imprisonment or with imprisonment for no less than five years.

At the core of this amendment to the law was the transition from a criminal offense ("for murder", "for death blow") to a criminal offense ("the murderer ...", "as a death thug ...") conception. The point of contact for the punishment was no longer the act, but the convictions of the perpetrator itself. According to the Reichsgericht, the distinguishing feature between the two groups of perpetrators lay “in the overall personality of the perpetrator, as can be recognized from the act and other circumstances”. The act itself serves as a reflection of the perpetrator's inner disposition.

The basis for this was the theory of offender types originally propagated by Franz von Liszt and then mainly developed by the Kiel School around Georg Dahm and Friedrich Schaffstein . It was taken up by Roland Freisler and modified in such a way that the type of offender could be normatively determined: In practice, the respective individual offense should be compared with the expected behavior of a typical offender. Accordingly, the murder features mentioned in paragraph 2 only served as illustrations of the perpetrator type "murderer", who is of a completely different character than a manslaughter. The actual facts of the norm should, however, be comprehensively described with the term “murderer” in paragraph 1. Since there is an intuitive idea of ​​this type of offender in the popular conception, the legislature has it ...

“Not constructed through the combination of elements. He just put it there. So that the judge can look at him and say: The subject deserves the rope. "

- Freisler , Deutsche Justiz 1939, p. 1451.

The judges were thus assigned the task of determining the type of perpetrator of the accused in the judgment. To this end, it should first be clarified whether it is a "murderer type". Only if this was denied did the “manslaughter” regulated in Section 212 RStGB act as a catch . As a result, the judges were given the widest possible scope for assessment. As a criterion for determining the type of offender, the case law therefore mainly used the reprehensibility of the act and not the implementation of the examples mentioned in paragraph 2. Of these, the murder characteristic of treachery was supposed to tie in with a “Germanic legal tradition” which, in the form of a “secret” type of inspection, should refer back to the Germanic model of secret killing.

The Potsdam criminal law scholar Wolfgang Mitsch points out, however, that features of murder, such as those in the revised Section 211 StGB, go back to the Swiss lawyer Carl Stooss , who as early as 1894 worked out a formulation proposal for the Swiss Criminal Code with most of the features later also used in Section 211 StGB. Criminal laws of other states - such as today's StGB of the Russian Federation (Art. 105) or the French code pénal (Art. 221-1ff.) - also contain features that are similar to those of Section 211 StGB.

Reform in the GDR (1968)

The Reich Criminal Code initially continued to apply in the area of ​​the German Democratic Republic . It was not until 1968 that a legislative reform came about , in the course of which the deliberation principle was reintroduced. However, it was expanded to include further socio-ethical and political criteria, above all to legitimize the death penalty. The new law determined:

Section 112. Murder

(1) Anyone who deliberately kills a person shall be punished with imprisonment not under ten years or with life imprisonment.

(2) The death penalty can be recognized if the act

1. is a crime against the sovereignty of the German Democratic Republic, peace, humanity and human rights or a war crime or is committed out of enmity against the German Democratic Republic;

2. Is committed by means or methods that are dangerous to the public or is intended to arouse fear and terror among the population;

3. Is committed insidiously or in a particularly brutal manner;

4. is committed multiple times or the perpetrator has already been punished for willful homicide;

5. is committed after multiple punishments for violent crimes (Sections 116, 117, 121, 122, 126, 216).

(3) Preparation and attempt are punishable.

Section 113. Homicide

(1) The intentional killing of a person is punishable by imprisonment for up to ten years if

1. the perpetrator, through no fault of his own, has been brought into a state of extreme excitement (affect) by mistreatment, severe threat or severe offense inflicted on him or his relatives by the victim and thereby carried away or determined to kill;

2. a woman kills her child during or immediately after birth;

3. There are special circumstances that reduce criminal liability.

(2) The attempt is punishable.

Little is known about murders in the GDR, especially since crime in doctrine was alien to socialism.

Reforms and reinterpretations in West Germany since 1949

In the Federal Republic of Germany, too, the Reich Criminal Code continued to apply under the name of the Criminal Code. However, the death penalty had already been abolished in the West since the Basic Law came into force in 1949 ( Art. 102 GG). The corresponding amendment to the penal code was not made until 1953. The death penalty in paragraph 1 was replaced by life imprisonment. In this context, paragraph 3, which had previously provided this penalty for less severe cases, was also dropped. Since then, the murder paragraph has remained unchanged, with the exception of editorial revisions. While the legislature largely held back, the development of the law was largely driven by jurisprudence and jurisprudence. A ruling by the Federal Court of Justice of September 22, 1956, pointed the way. Contrary to the historical situation, the court found that Section 211 of the Criminal Code in Paragraph 2 had been given “clear and well-defined facts”. In this way, the standard examples of paragraph 2 , which previously served to clarify a type of offender, have been upgraded to established facts . The court converted the previous offense of paragraph 1 into a mere legal consequences order, which always intervenes immediately when one of the features mentioned in paragraph 2 is implemented. Above all, however, the characteristics mentioned in paragraph 2 related to the offense and no longer to the perpetrator. This criminal reinterpretation of the murder paragraph subsequently prevailed in jurisprudence and jurisprudence. After all, criminal law against offenders is hardly compatible with the rule of law and the principle of guilt . Nonetheless, the discrepancy between the conception of criminal offense and the interpretation of the norm in criminal law gives rise to numerous dogmatic problems and the difficulty in reconciling the principle of guilt.

criticism

For some time now, Section 211 of the Criminal Code has been exposed to the most severe criticism. This is partly due to the development of its current concept during the Third Reich, but for the most part also has objective reasons. This includes, on the one hand, the excessive casuistry , which makes it increasingly difficult to meet the requirements of individual justice and legal certainty in judgments . On the other hand, it is criticized that the law itself does not make it clear whether the criminal reason for the murder is the reprehensibility or the dangerousness of the act. Accordingly, there is in particular a lack of a guiding principle on which its interpretation can be oriented, which leads to the considerable deviations in dogmatics.

Discrepancy between criminal law and criminal law

Above all, the criticism is based on the dogmatic inconsistencies that result from the criminal law interpretation of the norm conceived as criminal law.

Relationship to manslaughter

As part of his apprenticeship, Roland Freisler assumed that the murderer was of a completely different nature than a manslayer. Accordingly, he conceived murder and manslaughter as separate offenses. There should be two separate offenses that stand side by side and each justify a penalty. This is recognized by the jurisprudence even after the criminal law reinterpretation of Section 211 StGB. However, the teaching is very critical of this. Since the offense of manslaughter coincides with the subject and act of murder, all of the unjust features of manslaughter are contained in the murder. This is what typically marks the qualification . Therefore, in most of the literature, murder is not viewed as an independent crime, but as a particularly serious case of manslaughter.

This has two main consequences:

1. In the context of incitement and aiding and abetting , the characteristics of murder are not to be regarded as characteristics justifying a punishment within the meaning of Section 28 (1), but as characteristics that aggravate the penalty within the meaning of Section 28 (2) StGB.
2. The murder is a special case of manslaughter, so that in a less serious case the reduction in sentence according to § 213 StGB can also be considered.

Justice problem

The reinterpretation of Section 211 of the Criminal Code also means that the implementation of the murder features in paragraph 2 directly leads to the maximum penalty. An overall evaluation of the fact is no longer possible. In the Third Reich, the maximum sentence was justified with the “attack on the national community” in murder, but this now collides with the principle of punishment commensurate with guilt and thus with constitutional law. In particular, his justification that “pests of the people” should be exterminated and the rooted thought “that blood requires blood [...] deep in the popular consciousness” originally to justify the death penalty are no longer viable today. This circumstance is exacerbated by the fact that with the abolition of the death penalty, the mitigation option under Section 211 (3) of the Criminal Code no longer applies. However, since the case law does not consider Section 213 of the Criminal Code to be applicable to murder, there is a considerable gap between the possible sanctions for murder and manslaughter.

Legal dogmatic solutions

In order to solve this second problem in particular, various approaches have been developed:

System-immanent solutions

This includes the generally recognized restrictive application of the murder clause. It is achieved by advocates of the reprehensible conception by subjectifying the characteristics of murder. From a legal point of view, however, this is problematic as it cannot be justified using any of the recognized methods of interpretation . In legal practice, however, there are other solutions. In particular, Section 21 of the Criminal Code is often applied and the punishment for reduced criminal liability is lessened. In some cases, the intent with regard to the murder feature is also denied, such as in the prominent case of Marianne Bachmeier .

Legal consequences solution

The legal consequence solution developed primarily by the Federal Court of Justice represents a judicial legal training . Section 49 (1) number 1 of the Criminal Code should always be possible if the life imprisonment appears to be disproportionately severe. Although accepted by the Federal Constitutional Court, this solution is facing the most severe criticism. In this regard, reference is made in particular to the fact that the use of Section 49 StGB is not tenable in methodological terms. Rather, it is an interpretation that contradicts the express wording of the law, with which the court takes the place of the legislature and therefore violates the principle of separation of powers . It is also perceived as problematic that a conviction of the perpetrator within the scope of the legal consequences solution still takes place for murder and thus has a stigmatizing effect. In addition, it is unclear when the sentence should be reduced, which leads to legal uncertainty.

Type correction

Representatives of the reprehensible concept in particular developed the doctrine of type correction as an alternative legal training. According to her, the consequences of the offender type theory should be corrected by an overall evaluation of the crime despite the realization of a murder mark. In terms of details, two camps have emerged. Proponents of the positive type correction demand that, in addition to the realization of a murder feature, there should be circumstances that make the killing appear particularly reprehensible. On the other hand, advocates of the negative type correction demand that no circumstances may appear next to the realization of a murder mark that portray the killing as less reprehensible. The positive type correction defines the reprehensibility as a constituent feature that has to be proven to the perpetrator for a conviction. On the other hand, the negative type correction understands the murder features in paragraph 2 as standard examples that have an indicative effect with regard to the reprehensibility of the act . In practice, however, both approaches could not prevail. The Federal Court of Justice rejected them in three fundamental decisions because they did not set any standards for assessing the reprehensibility of an act and were therefore incompatible with the requirement of legal certainty. This view is shared by a considerable part of legal scholarship today.

Criticism of individual murder features

The problem of justice takes on concrete forms, especially with regard to individual characteristics of murder:

This is especially true for the trait of treachery. It was originally based on the idea that an upright Teuton should face his opponent in open and honest duels. Therefore it should punish particularly harshly a devious, insidious approach, which was mainly attributed to Jews . Today it leads to inconclusive results , especially in homicide . A physically superior spouse could beat the other partner to death and would still only be punishable for manslaughter. However, when the inferior partner cannot help but kill the superior partner in his sleep, he is accomplishing the greater injustice of murder.

The characteristic of lower motives, which is an extremely abstract general clause, is also heavily criticized. It opens up a wide margin of discretion for the judge, which is difficult to reconcile with the requirements of legal certainty. This is especially true because the Federal Court of Justice considers the intervention of this murder feature to be verifiable only to a limited extent in the appeal.

Reform efforts

Because of these problems, a reform of the murder paragraph has been suggested time and again. Albin Eser presented an extensive reform draft as early as 1980 at the German Jurists Conference . According to this, murder would have been clearly defined as a basic offense with a broad scope for the degree of punishment, against which manslaughter would have been privileged . With the 6th Criminal Law Amendment Act in 1998, individual homicides were revised. A fundamental reform that was initially planned by the federal government , however, was not implemented.

In 2008, a working group of German, Austrian and Swiss criminal law teachers published another draft with a uniform killing offense. Based on this, at the initiative of Heiko Maas ( Minister of Justice in the Merkel III cabinet ), a reform of the homicides applicable up to now was sought from the beginning of 2014. The intended changes were primarily intended to correct systematic inconsistencies. A group of experts set up to prepare the amendment worked out a statement from May 2014 to June 2015. As a result, the Ministry of Justice, led by Maas, presented a draft law amendment at the beginning of 2016, which, among other things, provides for a catalog of privileged circumstances that allow the prison sentence to be reduced to up to 5 years. In the further course of the legislative period, however, no resolution was passed on the draft because the government faction of the CDU / CSU refused to adjust the sentence.

Police crime statistics

Recorded cases of murders in the years 1987-2019 as a frequency number (per 100,000 inhabitants)

Since the beginning of the 1990s, fewer and fewer homicides have been recorded in the crime statistics . Including trials, there were 1,299 cases in 1993, which corresponds to 1.6 cases per 100,000 inhabitants. In 2008 there were 694 cases (0.8). From 2016 to 2018 there was a slight increase to 901 cases (1.1), before falling again to 720 (0.87) in 2019. The frequency fell by almost half from 1993 to 2019. This decrease is therefore much larger than that of total crime , which fell by 21% over the same period. The pattern of a decline in homicides since the early 1990s can be found in all western countries. It's part of an overall decline in crime .

With the frequency figures given in the diagram , however, it should be taken into account that attempted murder is included, which makes up the majority of cases. Of the 720 cases in 2019, only 218 were completed, which is the lowest number in the reporting period.

The number of completed murders for Germany as a whole has been available since 1994. The peak was reached here in 1996 with 720. By 2019 the number had dropped to 245 victims.

Compared to other Western European countries, Germany has an average of around one case per 100,000 inhabitants per year. This makes Western Europe one of the safer regions on earth. Even if there are also declines in the frequency of murders in other parts of the world, these are sometimes significantly higher values, such as North America with 5.1, South America 24.2 and Central America with 25.9 cases per 100,000 inhabitants. The United Nations Office on Drugs and Crime published a 2019 study that found the East Asia region topped the list with just 0.6 per 100,000.

The resolution rate of murders in Germany is over 90%. The proportion of foreigners among suspects was 36.1% in 2019. Up until the early 2000s, guns were threatened or shot in around 20% of cases, but in 2019 this proportion was only around 6%.

In 2015, 68.4% of relatives or close acquaintances were suspected of committed murder and manslaughter

Criminal statistics for murder (Section 211, excluding manslaughter) in the Federal Republic of Germany

year	Cases recorded including attempts	of which attempts	Threatened or shot with a gun	Clearance rate	Total number of victims	Number of victims, completed murders	Proportion of non-German suspects (%)
1993	1,299	633 (= 48.7%)	213 (= 16.4%)	84.5%			30.6
1994	1,146	547 (= 47.7%)	220 (= 19.2%)	88.5%	1,396	662	31.6
1995	1,207	602 (= 49.9%)	226 (= 18.7%)	89.7%	1,394	655	33.6
1996	1,184	563 (= 47.6%)	237 (= 20.0%)	88.2%	1,441	720	34.7
1997	1,036	500 (= 48.3%)	229 (= 22.1%)	92.8%	1,148	583	34.8
1998	903	451 (= 49.9%)	196 (= 21.7%)	93.2%	1,023	498	36.6
1999	962	480 (= 49.9%)	206 (= 21.4%)	93.0%	1,085	521	30.9
2000	930	476 (= 51.2%)	170 (= 18.3%)	94.7%	1.108	497	29.8
2001	860	436 (= 50.7%)	181 (= 21.1%)	94.1%	996	464	31.4
2002	873	452 (= 51.8%)	138 (= 15.8%)	96.7%	989	449	30.4
2003	829	435 (= 52.5%)	140 (= 16.9%)	95.2%	921	422	30.9
2004	792	432 (= 54.5%)	104 (= 13.1%)	96.5%	907	399	29.5
2005	794	407 (= 51.3%)	119 (= 15.0%)	95.8%	891	413	29.2
2006	818	484 (= 59.2%)	101 (= 12.4%)	95.2%	983	375	25.2
2007	734	420 (= 57.2%)	91 (= 12.4%)	97.3%	884	339	28.3
2008	694	376 (= 54.2%)	98 (= 14.1%)	97.6%	926	370	28.3
2009	703	404 (= 57.5%)	86 (= 12.2%)	94.6%	914	365	27.8
2010	692	399 (= 57.7%)	79 (= 11.4%)	96.1%	814	324	30.5
2011	723	400 (= 55.3%)	78 (= 10.8%)	95.6%	889	357	28.9
2012	630	375 (= 59.5%)	80 (= 12.7%)	96.0%	801	281	29.8
2013	647	406 (= 62.8%)	75 (= 11.6%)	96.3%	814	282	30.7
2014	664	415 (= 62.5%)	61 (= 9.2%)	95.3%	859	298	29.8
2015	649	368 (= 56.7%)	60 (= 9.3%)	94.8%	777	296	28.3
2016	784	443 (= 58.2%)	85 (= 10.8%)	93.2%	993	373	37.1
2017	785	443 (= 56.4%)	62 (= 7.8%)	95.5%	1,030	405	37.3
2018	901	649 (= 72.0%)	45 (= 5%)	95.3%	1,267	386	38.6
2019	720	502 (= 69.7%)	49 (= 6.8%)	91.4%	962	245	36.1

Number of people convicted of murder and manslaughter

According to statistics from the Federal Statistical Office , the number of people convicted in Germany for murder or manslaughter ( StGB 211–213) fell from 2007 to 2013:

	2007	2008	2009	2010	2011	2012	2013	2014	2017
Total convicts of murder or manslaughter	697	648	602	617	570	558	506	535	528
Share by gender:
Men	617	572	540	566	507	508	466	489
Women	80	76	62	51	63	50	40	46
Shares according to nationality:
German	473	445	424	437	383	399	345	353
Foreigners	224	203	178	180	187	159	161	182

Number of victims of homicide in partnerships

In Germany, the crime statistics for 2015 list a total of 415 victims of murder and manslaughter (attempted or completed) in partnerships . For a long time there were no meaningful statistics on this in Germany. This was complained about by non-governmental organizations . It was not until 2011 that the corresponding prerequisites for data collection were created in the police crime statistics.

Victims of murder and manslaughter (attempted or completed) in partnerships by relationship status with the suspect (2015)

	All in all	Women	Men
Victims of murder and manslaughter in Dtl. total	2,457	781	1,676
total in partnerships	415	331	84
in %	16.9%	42.4%	5%
according to relationship status
Spouse	210	170	40
Registered life partnership	0	0	0
Partner of illegitimate cohabitation	112	87	25th
Former partnerships	93	74	19th

Nationality of victims of murder and manslaughter (tried or completed) in partnerships (2015)

	Victims of murder and manslaughter in Dtl. total	of which in partnership	in %
all in all	2,457	415	16.9%
Germany	1,712	316	18.5%
Turkey	135	22nd	16.3%
Poland	62	12	19.4%
Afghanistan	38	7th	18.4%
Russian Federation	21st	4th	19.0%
Ukraine	10	3	30.0%
Romania	34	2	5.9%
Bulgaria	18th	2	11.1%
Kosovo	23	2	8.7%
Syria	18th	2	11.1%
Bosnia and Herzegovina	10	2	20%
Morocco	14th	2	14.3%
Greece	12	1	8.3%
Iran	11	1	9.1%

literature

• Werner Baumeister: Honor killings, blood revenge and similar delinquency in the practice of federal German criminal justice (= criminology and criminalsociology , volume 2), Waxmann, Münster / New York, NY / Munich / Berlin 2007, ISBN 978-3-8309-1742-7 (dissertation University of Münster (Westphalia) 2006, 186 pages, 21 cm).
• Karl Engisch : On the concept of murder , in: GA Goltdammer's Archive for Criminal Law , 1955, pp. 161 ff.
• Anette Grünewald: The intentional killing offense , Mohr Siebeck, Tübingen 2010, 2010, ISBN 978-3-16-150012-1 (Habilitation University Hamburg 2009. IX, 432 pages, 24 cm).
• Burkhardt Jähnke: About the just punishment of intentional homicide and about the murder characteristic of deliberation , in: MDR 1980, pp. 705 ff.
• Walter Kargl : Law, Dogmatics and Reform of Murder (Section 211 StGB) , in: StraFO 2001, p. 365 ff.
• Walter Kargl: On the basic offense of homicides , in: JZ 2003, p. 1141 ff.
• Katharina Linka: Murder and manslaughter (§§ 211-213 StGB), reform discussion and legislation since 1870 (= contemporary legal history , section 3: Contributions to modern German criminal law , volume 29), BWV, Berliner Wissenschaftsverlag, Berlin 2008, ISBN 978-3 -8305-1513-5 (Dissertation Fernuniversität Hage 2007, XVIO, 281 pages, 24 cm).
• Wolfgang Mitsch : The unconstitutionality of § 211 StGB , in: JZ 2008, p. 226 ff.
• Bernd Müssig : Standardization of murder features by the Federal Court of Justice? Criteria of the responsibility or the cause of the crime as an interpretation model for the murder features , in: Gunter Widmaier u. a. (Ed.): Festschrift for Hans Dahs , Schmidt, Cologne 2005, ISBN 978-3-504-06032-9 , p. 117 ff.
• Bernd Müssig: Murder and manslaughter: preliminary considerations for a differentiation approach in the area of ​​the injustice to kill , Cologne 2005, ISBN 3-452-25956-0 .
• Martina Plüss: The murder paragraph in the Nazi era. Connection between standard text changes, offender type theory and legal practice - and their relation to Swiss criminal law debates . Tübingen, Mohr Siebeck 2018. ISBN 978-3-16-155898-6 . Reading sample
• Sven Thomas : The History of the Murder Paragraph. A norm genetic investigation. Dissertation 1985.
• Steffen Stern: Defense in murder and manslaughter proceedings. Heidelberg 2013, ISBN 978-3-8114-4911-4 .
• Benjamin Steinhilber: Murder and Lifelong: Current Legal Problems and Proposals for the Overdue Reform. Nomos, Baden-Baden 2012. ISBN 978-3-8329-7200-4 .

Web links

Wiktionary: Murder  - explanations of meanings, word origins, synonyms, translations

Wikiquote: Murder  Quotes

• Section 211 of the Criminal Code (dejure) - text of the law with information on decisions and essays
• Section 211. Murder. In: lexetius.com. Thomas Fuchs, accessed November 15, 2011 .  , Overview (synopsis) of the various versions of Section 211 since theCriminal Code for the German Empire of May 15, 1871,with effect from January 1, 1872.

On the legal policy debate on reforming the facts

• Thomas Fischer : Murder Paragraph - Völkisches Recht. In: Die Zeit , No. 51/2013, December 12, 2013.
• Thorsten Jungholt: Remove "brown trail" - lawyers want murder reform. In: Die Welt , January 14, 2014.
• "We have to change the murder paragraph" (Interview with Federal Minister of Justice Heiko Maas on criminal law reform for homicides). In: Süddeutsche Zeitung , February 8, 2014.
• Michael Stempfle: Reform of the Murder Paragraph - Denazification in the Criminal Code. ( Memento from May 22, 2014 in the Internet Archive ) Tagesschau.de, May 20, 2014.
• Michael Höhne: The reform of intentional homicides: Why has it failed so far and what could it look like? Critical Justice 2014, pp. 283–297

See also

• Decrease in crime
• Internal security
• Police crime statistics (Germany)

Individual evidence

1. ^ German Reich Law Gazette Part I 1867-1945. In: ALEX Historical legal and legal texts online. Austrian National Library, accessed on August 1, 2019 . 
2. ↑ ^{a b c d e f g h} Police crime statistics 2019 - time series overview of case tables. (xlsx, csv) Federal Criminal Police Office, accessed on March 30, 2020 . 
3. ↑ ^{a b c} Michael Tonry: Why Crime Rates Are Falling Throughout the Western World, 43 Crime & Just. 1 (2014). P. 5 , accessed on June 6, 2019 (English). 
4. ↑ ^{a b} Police crime statistics 2015, p. 33. (PDF)
5. ↑ ^{a b Violence in} partnerships - analysis of criminal statistics - reporting year 2017. (PDF) Table attachment. In: bka.de. Federal Criminal Police Office, November 20, 2018, p. 27 , accessed on August 1, 2019 . 
6. ↑ Eser , Schönke / Schröder (2014) § 211 Rn. 5; Wessels / Hettinger , Special Criminal Law I, Rn. 75.
7. ^ Rengier , ZStW 92, 1980, 459 ff.
8. ↑ Schroeder , JuS 1984, 277 f.
9. ↑ Rüping , JZ 1979, 619 f.
10. ↑ BGHSt 3, 180 f.
11. ^ Albrecht , JZ 1982, 699 f.
12. ↑ BVerfGE 45, 187 ff.
13. ^ Doctor , ZStW 83, 1971, 19 ff.
14. ↑ Schneider , MüKo (2012) § 211 Rn. 17th
15. ^ Albrecht , JZ 1982, 701.
16. ↑ Rüping , JZ 1979, 619.
17. ↑ Detlev Sternberg-Lieben , Schönke / Schröder (2014), § 211 Rn. 2.
18. ↑ Detlev Sternberg-Lieben , Schönke / Schröder (2014), § 211 Rn. 4th
19. ↑ Fischer , Criminal Code with subsidiary laws (2014), 1439.
20. ↑ BVerfGE 20, 323 .
21. ↑ BVerfGE 45, 187 (260).
22. ^ Lackner , Kühl , Criminal Code Comment (2014), 1011.
23. ^ Schneider , MüKo-StGB, § 211 Rn. 40 ff.
24. ^ Neumann , NK-StGB (2013) § 211 Rn. 3.
25. ↑ BGHSt 19, 167 .
26. ↑ about BGHSt 35, 116 (f esp. P.126.)
27. ^ Federal Court of Justice : New Journal for Criminal Law , 1994, 239.
28. ↑ BGHSt 34, 59 (especially p. 61).
29. ↑ Tröndle / Fischer , Criminal Code (2014), § 211 Rn. 6th
30. ↑ BGHSt 50, 80 ; BVerfG, NJW 2009, 1061.
31. ^ Neumann , NK-StGB (2013) § 211 Rn. 12a with further evidence.
32. ↑ Jill Buhler: fancy word. Lustmord Linguistic entanglement of blood thirst and lust in Krafft-Ebing, Musil, Schubert and Kleist. (PDF; 160 KB) In: The useless knowledge in literature. Jill Bühler, Antonia Eder, 2015, pp. 137–155 , accessed on March 19, 2019 . 
33. ↑ So even BGHSt 29, 317 .
34. ↑ BGHSt 10, 399 .
35. ↑ BGH, NJW 1995, 2366.
36. ↑ BGH, NStZ 1993, 386.
37. ↑ Eser , Schönke / Schröder (2014) § 211 Rn. 7th
38. ↑ Neumann , NK-StGB (2013) § 211, Rn. 17th
39. ↑ Kühl , JURA 2009, 572; Neumann , NK-StGB (2013) § 211, Rn. 17th
40. ^ Neumann , NK-StGB (2013) § 211 Rn. 22nd
41. ↑ Sinn , Systematic Commentary on the Criminal Code, Section 211 Rn. 19th
42. ↑ BGHSt 10, 399 .
43. ↑ Schneider , MüKo (2012) § 211 Rn. 65.
44. ↑ Jähnke , Leipziger Commentary , § 211 Rn. 8th.
45. ↑ Doctor / Weber u. a., BT Criminal Law, § 2 Rn. 60.
46. ^ Neumann , NK-StGB (2013) § 211 Rn. 23.
47. ↑ BGHSt 3, 132  f., BGHSt 50, 1 (especially p. 8).
48. ↑ BGHSt 35, 116 (especially p. 122).
49. ↑ On this in detail Lange, Die politically motivated killing , Frankfurt 2007.
50. ↑ BGHSt 2, 60 f.
51. ↑ BGHSt 30, 105 .
52. ↑ BVerfG, NJW 2001, 669.
53. ↑ BGHSt 27, 322 .
54. ↑ ^{a b} BGHSt 3, 330 (especially p. 332).
55. ↑ BGHSt 23, 119 f.
56. ^ Neumann , NK-StGB (2013) § 211 Rn. 70 ff.
57. ↑ Eser , Schönke / Schröder (2014) § 211 Rn. 26th
58. ↑ Schneider , MüKo (2012) § 211 Rn. 130.
59. ↑ BGHSt 38, 353 f.
60. ↑ BGHSt 34, 13 f.
61. ^ Neumann , NK-StGB (2013) § 211 Rn. 85.
62. ↑ BGH, decision of January 12, 2011 Az. 1 StR 582/10 Rdrn. 11 ff .: bodily harm instead of embezzlement
63. ^ Neumann , NK-StGB (2013) § 211 Rn. 95.
64. ↑ BGHSt 23, 39 f.
65. ^ Neumann , NK-StGB (2013) § 211 Rn. 98
66. ↑ BGHSt 7, 287 .
67. ↑ BGHSt 38, 356 (especially p. 361).
68. ↑ BGHSt 41, 8 .
69. ↑ Neumann , NK-StGB (2013), § 211 Rn. 129.
70. ↑ Schneider , MüKo (2012) § 211 Rn. 277.
71. ↑ that this is not against the retroactivity contrary, was BVerfGE 25, 269 confirmed.
72. ↑ Schneider , MüKo-StGB (2012), § 211 Rn. 271.
73. ↑ Schneider , MüKo-StGB (2012), § 211 Rn. 256.
74. ↑ Heine / Weißer , Schönke / Schröder (2014), § 28 Rn. 20th
75. ↑ BGHSt 50, 1 (especially p. 5).
76. ↑ BGH, NStZ 2006, 34 f.
77. ↑ BGHSt 23, 39 f.
78. ↑ Heine / Weißer , Schönke / Schröder (2014), § 28 Rn. 27.
79. ↑ Schneider , MüKo (2012) § 211 StGB margin no. 264.
80. ↑ BGHSt 32, 194 .
81. ↑ Eser / Sternberg-Lieben , Schönke / Schröder (2014), before §§ 211 ff. Rn. 16 ff.
82. ↑ ^{a b} Eser / Sternberg-Lieben , Schönke / Schröder (2014), § 212 Rn. 14th
83. ↑ Schneider , MüKo-StGB (2012), § 211 Rn. 272.
84. ↑ Schneider , MüKo-StGB (2012), § 211 Rn. 272.
85. ^ Neumann , NK-StGB (2013), § 212 Rn. 27 ff.
86. ↑ BGHSt 39, 100 .
87. ↑ Middendorf , Negligent homicides, in: Alexander Elster / Rudolf Sieverts (eds.), Handwortbuch der Kriminologie, Vol. 5, 2nd edition, Berlin 1995, 89-103.
88. ^ Eisenhardt , Deutsche Rechtsgeschichte, 6th edition, 2013, 77; Susanne Pohl , honest manslaughter - revenge - self-defense. Between the male code of honor and the primacy of urban peace, in: Jussen / Koslofsky (ed.), Kulturelle Reformation - Sinnformationen im Umbruch, 1400–1600, Göttingen 1999, 239–283.
89. ^ Basically Josef Kohler , Studies from the Criminal Law, Mannheim 1896, 704.
90. ^ Freisler , Deutsche Justiz 1941, 933.
91. ↑ [Hilfrich's letter printed by: Ernst Klee (Ed.): Documents on »Euthanasia«. 5th edition, Fischer Taschenbuch, Frankfurt am Main 2001, ISBN 3-596-24327-0 , p. 231f / quotation p. 232]
92. ↑ RGBl. I p. 549
93. ↑ Expressly Bockelmann , Studien zum Täterstrafrecht I, 1939 3 f.
94. ↑ RGSt 77, 41, 43
95. ^ Freisler , German Justice 1941, 934 f.
96. ↑ Werle , Judicial Criminal Law and Police Combating Crime in the Third Reich. Berlin 1989, 345 f.
97. ↑ See e.g. B. RGSt 77, 286 (in particular p. 289).
98. ↑ Wolfgang Mitsch: “Denazification” of Section 211 StGB? In: Journal for Legal Policy 2014, p. 91.
99. ↑ Until 1969 still "lifelong prison"
100. ↑ BGHSt 9, 385 .
101. ↑ Veh , murder offense and constitutional application of law, Berlin 1986, 19.
102. ↑ Neumann , NK-StGB (2013), preliminary remarks on § 211 Rn. 154 ff.
103. ↑ von Gleispach , killing, in Gürtner (ed.), The coming German criminal law, BT. Berlin 1935, 258.
104. ^ Freisler , Deutsche Justiz, 1939, 1450.
105. ^ Freisler , Deutsche Justiz, 1941, 932.
106. ↑ Eser / Sternberg-Lieben , Schönke / Schröder (2014), § 211 Rn. 9 with extensive further references.
107. ↑ Eser / Sternberg-Lieben , Schönke / Schröder (2014), § 211 Rn. 276 f.
108. ↑ Eser / Sternberg-Lieben , Schönke / Schröder, § 211 Rn. 10.
109. ↑ Schwalm , MDR 1957, 260.
110. ↑ BGHSt 9, 385 (especially p. 389); BGHSt 11, 139 ; BGHSt 30, 105 (especially p. 115).
111. ↑ Grünewald , The intentional killing offense, 2010, 123 ff.
112. ↑ Neumann , NK-StGB (2013), § 211 Rn. 26 ff.
113. ↑ BGH, NStZ 2006, 284 f.
114. ↑ Tröndle / Fischer , Criminal Code (2014), before Section 211 Rn. 1.
115. ↑ Heribert Prantl and Robert Roßmann: Legal understanding from Nazi times: Maas wants to reform criminal law for murder and manslaughter , Süddeutsche Zeitung from February 8, 2014 [as of 16. May 2014].
116. ↑ Final report of the expert group on the reform of homicides (Sections 211 - 213, 57a StGB) presented to the Federal Minister of Justice and Consumer Protection Heiko Maas in June 2015 , online version ( Memento of the original from March 24, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed March 19, 2016. 
117. ^ Federal Ministry of Justice: Draft of a law to reform homicides. Retrieved October 28, 2018 . 
118. ^ Criminal law: Federal Justice Minister wants to abolish compulsory life imprisonment for murder . In: Spiegel Online . March 25, 2016 ( spiegel.de [accessed January 12, 2018]).
119. ↑ Criminal law: murderers should not necessarily be imprisoned for life . In: The time . March 26, 2016, ISSN  0044-2070 ( zeit.de [accessed May 20, 2017]).
120. ↑ Bundestag parliamentary group of the CDU / CSU: There must be no zones of different security in Germany (press release). Retrieved May 20, 2017 . 
121. ↑ ^{a b} PKS 2019 - time series overview of victim tables. (xlsx, csv) Victims - criminal acts accomplished. In: bka.de. Federal Criminal Police Office, accessed on April 11, 2020 . 
122. ↑ Global Study on Homicide. United Nations Office on Drugs and Crime (UNODC), accessed August 11, 2019 . 
123. ↑ Calculated from the following columns of the time series overview of case tables : "threatened" + "shot" ("threatened" + "shot" / "recorded cases")
124. ↑ PKS 2019 - time series overview of victim tables. (xlsx, csv) Victims - total offenses. In: bka.de. Federal Criminal Police Office, accessed on April 11, 2020 . 
125. ↑ https://www.destatis.de/DE/Publikationen/Themati/Rechtspflege/StrafverendungVollzug/StrafverendungDeutschlandPDF_5243105.pdf?__blob=publicationFile Federal Statistical Office April 29, 2016: Law enforcement, long series of convicted Germans and foreigners according to the type of offense and gender (Germany since 2007)
126. ↑ Federal Criminal Police Office: Violence in couple relationships, press conference of November 22, 2016. ( Memento of the original of December 20, 2016 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. 
127. ↑ Submission to the UN Special Rapporteur on Violence against Women Rashida Manjoo. (PDF; 166 kB) (No longer available online.) The Paritätische Landesverband Rheinland-Pfalz / Saarland e. V., February 2012, p. 4 , archived from the original on June 2, 2015 ; Retrieved May 10, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  
128. ↑ ^{a b Violence in} partnerships: Criminal statistics analysis reporting year 2015 ( Memento of the original from December 20, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 
129. ↑ Police crime statistics of victims by age and gender ( memento of the original from December 20, 2016 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 
130. ↑ Police crime statistics of victims by nationality

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