Manslaughter (Germany)
In German criminal law, manslaughter refers to the willful killing of a person that neither fulfills the criteria for murder that increase the threat of punishment nor the criteria for killing on request that reduce the threat of punishment . In 2019, a total of 1,595 cases of manslaughter and killing on request were recorded in the Federal Republic of Germany. The clearance rate for this period was 95.2 percent. The overwhelming majority of homicides (78.0 percent) remained with the attempt.
In the past three decades, the number of recorded cases of manslaughter in Germany has halved. This decline follows the trend that can be observed in all western countries.
(Basic) facts
The offense is contained in § 212 StGB :
(1) Anyone who kills a person without being a murderer is punished as a manslaughter with imprisonment for no less than five years.
(2) In particularly serious cases, life imprisonment is to be recognized.
Difference to the murder fact
It differs from murder ( Section 211 StGB) in that it lacks murder characteristics . The threat of punishment for manslaughter is correspondingly lower. The act is threatened with imprisonment of 5 to 15 years. In particularly serious cases, however, like murder, a life sentence is imposed (Section 212 II StGB). In less serious cases, the penalty is imprisonment from one year to ten years (§ 213 StGB).
Beginning and end of "life" (protection area)
The decisive factor here is the victim's subject quality as a “person” in the sense of homicides , which can only be questionable in border areas (especially beginning and end).
It was not until the start of labor actions (after almost undoubted prevailing opinion), if necessary as homicide rates, so particular as a homicide . For interventions before this point in time, only the norms on termination of pregnancy , i.e. § § 218 ff. StGB, are relevant. To justify this delimitation, the Federal Court of Justice (BGH) relied, among other things, on the wording of the (now repealed) earlier Section 217 of the Criminal Code ("infanticide"), which mitigates punishment ( privileges ) for the mother of a illegitimate child "in or immediately after the Birth "compared to §§ 211, 212 StGB. From the fact that the child was also protected from homicide in the narrower sense of the word "at birth", the BGH concluded that life in the sense of these homicides begins with birth. According to the prevailing opinion, the beginning of the birth is equated with the beginning of the opening labor (or with surgical methods, the opening of the uterus) in the normal course of labor. This is justified in particular with the corresponding definition of the birth process in medicine and with the high risk and need for protection of the child from this point on. After the abolition of the special regulation for "infanticide" (§ 217 StGB old version), this legal opinion will be retained due to a lack of will of the legislature to change the legal situation with regard to this delimitation (apart from a few opposing opinions).
According to the prevailing legal opinion, life ends with the occurrence of brain death , i.e. the extinction of all activities of the brain, regardless of whether other bodily functions are still being maintained (e.g. for planned organ transplants).
Relationship to murder
The prevailing doctrine regards manslaughter as a so-called basic crime and murder as its qualification ; up until now, the judiciary saw murder and manslaughter as separate offenses. In the case constellations of participation, this difference has an impact on the application of criminal law norms of the general section (cf. Section 28 (1) or (2) StGB). However, the Federal Court of Justice has already expressed itself critical of the treatment of the relationship by the case law.
In contrast to murder, which does not expire , manslaughter expires in 20 years.
(Other) tightening and mitigation of penalties
Section 212 (2) of the Criminal Code names the particularly serious case of manslaughter . This is a rule on the determination of sentences, which exacerbates the sentence and increases the threat of sentence to life imprisonment . It is used when the guilt of the manslaughter weighs as much as that of a murderer. Instead of the missing features of murder , special circumstances must be added, through which - as in the case of murder - the necessary degree of "morally lowest level" ( BGH ) special, "downright contemptible" reprehensibility is achieved. Since, of course, both low motives and particularly reprehensible ways of commissioning (cruelty, public danger) are themselves characteristics of murder, there is practically no conviction for a particularly serious case of manslaughter.
The less serious case of manslaughter is regulated in Section 213 of the Criminal Code . It allows for a milder punishment for those who, through no fault of their own, have been incited to anger by mistreatment or serious insult against them or a family member and who have been carried away to act on the spot. In addition, the law mentions the other, not further characterized, less serious case in which an overall assessment of all circumstances relevant to the assessment of the sentence must be carried out. Section 213 of the Criminal Code does not represent a separate offense, but also a rule on the assessment of sentences that reduces the standard range of penalties for manslaughter to one year to ten years. The manslaughter in a less serious case corresponds roughly to what is defined as manslaughter in Article 113 of the Swiss Criminal Code; the killing "in a violent emotional movement that is excusable according to the circumstances or under great emotional stress", that is, an act of affect (on murder and manslaughter in Switzerland, see under Murder - Switzerland ).
The previous qualification of manslaughter of relatives of the ascending line ("ascendant death"), which raised the minimum sentence from five to ten years and ruled out a reduction in the range of sentences due to attenuating circumstances, has been abolished. In 1998, in the course of the 6th Criminal Law Reform Act, infanticide (Section 217 of the old version of the Criminal Code) was abolished. As a privilege, this provided a lower range of punishment for a mother who killed her illegitimate child immediately after birth. Such cases are now also subject to manslaughter. Usually, however, there is another less serious case.
A separate paragraph regulates the case in which the perpetrator kills the victim at his request ( killing on request , Section 216 StGB). If the prerequisites for this privilege are not fully met, manslaughter or a less serious case of manslaughter can also be considered here.
statistics
In the German police crime statistics , fewer and fewer cases of manslaughter are currently registered. From 1993 to 2019, the frequency numbers fell from 3.7 to 1.9, a decrease of 49%. In 2019, according to police crime statistics, 300 people were killed in an accomplished manslaughter.
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 .
| year | Total cases | of these attempted cases | Firearm involved | Clearance rate | Total number of victims | Number of victims, accomplished deeds |
|---|---|---|---|---|---|---|
| 1994 | 2,605 | 1,831 (= 70.3%) | 533 | 86.6% | ||
| 1995 | 2,753 | 1,986 (= 72.1%) | 578 | 87.5% | ||
| 1996 | 2,347 | 1,719 (= 73.2%) | 345 | 94.0% | ||
| 1997 | 2,276 | 1,634 (= 71.8%) | 326 | 92.8% | ||
| 1998 | 1.994 | 1,471 (= 73.8%) | 206 | 96.1% | ||
| 1999 | 1,889 | 1,366 (= 72.3%) | 208 | 95.2% | ||
| 2000 | 1,840 | 1,334 (= 72.5%) | 214 | 95.7% | 1,979 | 518 |
| 2001 | 1,781 | 1,337 (= 75.1%) | 150 | 94.1% | 1.928 | 461 |
| 2002 | 1,791 | 1,298 (= 72.5%) | 131 | 95.5% | 1,968 | 506 |
| 2003 | 1,712 | 1,286 (= 75.1%) | 137 | 95.7% | 1.937 | 437 |
| 2004 | 1,688 | 1,239 (= 73.4%) | 128 | 95.9% | 1,902 | 469 |
| 2005 | 1,602 | 1,185 (= 74.0%) | 111 | 95.8% | 1,832 | 456 |
| 2006 | 1,650 | 1,257 (= 76.2%) | 113 | 95.6% | 1.928 | 433 |
| 2007 | 1,613 | 1,235 (= 76.6%) | 95 | 96.5% | 1,893 | 418 |
| 2008 | 1,572 | 1,234 (= 78.5%) | 73 | 96.7% | 1,817 | 352 |
| 2009 | 1,574 | 1,245 (= 79.1%) | 102 | 96.2% | 1,775 | 341 |
| 2010 | 1,526 | 1,218 (= 79.8%) | 79 | 95.1% | 1,787 | 366 |
| 2011 | 1,451 | 1,160 (= 79.9%) | 70 | 96.4% | 1,660 | 305 |
| 2012 | 1,496 | 1,213 (= 81.1%) | 72 | 95.8% | 1,746 | 297 |
| 2013 | 1,475 | 1,185 (= 80.3%) | 71 | 95.5% | 1,736 | 303 |
| 2014 | 1,515 | 1,209 (= 79.8%) | 62 | 97.0% | 1,762 | 326 |
| 2015 | 1,467 | 1,183 (= 80.6%) | 77 | 94.8% | 1,680 | 293 |
| 2016 | 1,657 | 1,314 (= 79.3%) | 77 | 95.3% | 2,066 | 503 |
| 2017 | 1,594 | 1,279 (= 80.2%) | 60 | 95.7% | 1,858 | 326 |
| 2018 | 1,570 | 1,278 (= 81.4%) | 66 | 96.5% | 1,827 | 313 |
| 2019 | 1,595 | 1,305 (= 81.8%) | 76 | 95.2% | 1,810 | 300 |
Number of people convicted of murder and manslaughter
According to statistics from the Federal Statistical Office , the number of convicts in Germany for murder or manslaughter ( StGB 211–213) has been falling since 2007:
| 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | 2013 | 2014 | |
|---|---|---|---|---|---|---|---|---|
| Total murder and manslaughter | 697 | 648 | 602 | 617 | 570 | 558 | 506 | 535 |
| 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 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.
| 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 |
| 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% |
Web links
See also
Individual evidence
- ↑ a b c d Police crime statistics 2019 - time series overview of case tables. (xlsx, csv) Federal Criminal Police Office, accessed on March 30, 2020 .
- ↑ a b Michael Tonry: Why Crime Rates Are Falling Throughout the Western World, 43 Crime & Just. 1 (2014). P. 5 , accessed on June 6, 2019 (English).
- ^ Only Rolf Dietrich Herzberg & Annika I. Herzberg apparently have a different view : The beginning of being human in criminal law: The completion of birth. In: JZ. 2001, p. 1106 ff. (Which even want to focus on the completion of the birth)
- ↑ Federal Court of Justice ( BGH ), Az .: 5 StR 347/56 of November 20, 1956, BGHSt 10, 5 f. (to inspect § 218 StGB by causing a living but not viable premature birth); BGH , Az .: 3 StR 25/83 of April 22, 1983, BGHSt 31, 348 (348 [1st guideline], 351 f.); BGH , Az .: 1 StR 665/83 of December 7, 1983, BGHSt 32, 194 (194 [guiding principle], 197) [1] (murder and not just termination of pregnancy in childbirth if someone becomes pregnant after the onset of Opening labor pangs down a slope); Tröndle / Fischer , Criminal Code, 54th edition, Rn. 2 before Sections 211 to 216; in detail: Hans Lüttger, The Beginning of Birth and the Criminal Law, Problems at the Border between Fruit Character and Human Quality, JR 1971, p. 133 (134 f.), each m. w. N.
- ↑ BGH , Az .: 1 StR 665/83 of December 7, 1983, BGHSt 32, 194 (197) [2] with reference to Lüttger (see above), JR 1971, p. 133 (134 f.)
- ^ Fischer, Criminal Code, 56th edition (2009), before Section 211, marginal no. 2 f.
- ^ Fischer, Criminal Code, 56th edition (2009), before Section 211, marginal no. 5 ff.
- ↑ BGH NJW 2006, p. 1008 (1013)
- ↑ Limitation period, § 78 StGB
- ↑ 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 .
- ↑ 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 .
- ↑ 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)
- ^ Federal Criminal Police Office: Violence in couple relationships, press conference on November 22, 2016.
- ↑ 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.
- ↑ Violence in partnership: Evaluation of criminal statistics, reporting year 2015
- ↑ Police crime statistics of victims by age and gender
- ↑ Violence in partnership: Evaluation of criminal statistics, reporting year 2015
- ↑ Police crime statistics of victims by nationality
