killing on demand

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The euthanasia is a criminal offense within the homicides . It is contained in the German ( § 216 StGB) as well as in the Austrian ( § 77 StGB) and in the Swiss Criminal Code (Art. 114 StGB). What the respective national provisions have in common is that those who kill a person at their serious and urgent request are punished more leniently. Treating the act as a separate punishment thus privileges the killing of another person.

Offense in the German Criminal Code

The protective purpose of the standard is on the one hand comprehensive protection of life, but on the other hand also the prevention of euthanasia . A relativization of life as an objective legal asset should be counteracted.

The classification of the offense is controversial. While the jurisprudential literature largely classifies it as a privilege for manslaughter , in the opinion of case law it is a separate offense , which - if it is relevant - prohibits the application of Section 212 of the Criminal Code (manslaughter). The blocking effect is ultimately undisputed and also includes the bodily harm that has also been committed (see below). A blocking effect for § 211 StGB ( murder ) is also assumed according to all views, but there are different opinions as to how far-reaching this is. The literature sees the murder as a qualification of the manslaughter, whereby the entire murder offense is blocked. According to the jurisprudence, murder is an independent criminal offense and is therefore not prohibited; if a murder feature is realized despite the request to kill, then the person will be convicted of murder (in the offense with killing on request) (e.g. Rotenburg case ). Particularly difficult are cases in which someone kills someone on demand, but can expect an inheritance from him (e.g.) (e.g. greed as a murder trait).

The criminal offense is applicable if the victim has expressly and seriously asked the perpetrator to kill him. Evidence is often very difficult in terms of evidence. However, it is not enough that the perpetrator imagined this alone. The perpetrator must have acted precisely because of the desire of the victim. If he was previously determined to kill the victim anyway, he acts as a so-called omnimodo facturus with regard to murder or manslaughter - but not according to Section 216 of the Criminal Code . It is commonly assumed that the killing can also occur through failure ( § 13 StGB).

In the subjective fact, contingent intent is sufficient. If the perpetrator is wrong, Section 16 (2) of the Criminal Code usually applies , so that the criminal liability remains in the offense area of Section 216 of the Criminal Code. If the perpetrator has made the mistake of negligence, he cannot be punished for negligent homicide under Section 222 of the Criminal Code , since the intent to kill is still there.

Even the attempt is punishable under § 216 para. 2 of the Criminal Code. Participation in the sense of aiding and abetting or inciting to kill on request is also conceivable. The peculiarity of this criminal offense is that the victim is at the same time the perpetrator and, if he survives the attempt, is to be judged as such in the absence of an exception in the wording of the law (which is probably not carried out in legal practice).

illegality

From the point of view of illegality , because of the atypical nature of the offense, it is difficult to imagine any justification . In particular, self-defense and consent are not covered by this in Germany, since Section 216 of the German Criminal Code does not allow interventions in the highly personal legal interest (consent block).

Demarcation

The problem with killing on request in Germany is always the demarcation from unpunished aiding and abetting suicide . In this context, the criterion used is partially that of perpetratorship: If the perpetrator dominates the course of action, he is punishable for killing on request, but if he only supports the actions of the suicide, the impunity of assisting suicide remains. This was dealt with in the so-called Sirius case , among other things . It should be noted, however, that the law does not exempt assisted suicide from punishment as opposed to killing on demand, but simply does not mention it. Therefore, when interpreting what is to be regarded as killing on request, no consideration should be given to a demarcation from aiding and abetting suicide; only when this interpretation has been made can that which does not fall under it can be described as aiding and abetting suicide.

In Austria, however, this problem does not exist. Participation in suicide ( Section 78  StGB) and homicide on request ( Section 77  StGB) are equally punished. The penalty range is six months to five years imprisonment .

Difficulties can also arise from the distinction between causing self-endangerment and mutual endangerment. Only the former is punishable. The characteristic of free responsibility is often problematic here.

In addition to killing on request, bodily harm resulting in death in accordance with Section 227 of the Criminal Code is also regularly relevant in German criminal law . The latter is punished with at least three years imprisonment. Therefore, killing on request (§ 216 StGB) also has a so-called blocking effect against bodily harm resulting in death (§ 227 StGB). In contrast, § 223 StGB (bodily harm) and § 224 StGB (dangerous bodily harm) take precedence after § 216.

literature

  • Günther Jakobs : Killing on demand, euthanasia and the criminal justice system. Bavarian Academy of Sciences, Munich 1998. ISBN 3-7696-1599-9 .
  • Anselm Winfried Müller: Killing on Demand - Benefit or Misdeed? Kohlhammer-Verlag, Stuttgart 1997. ISBN 3-17-015110-X .
  • Christian Tenthoff: The criminal liability of killing on request in the light of the principle of autonomy. Duncker & Humblot, Berlin 2008. ISBN 978-3-428-12717-7 .