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Murder in German law
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Murder in German law
Under the German penal code, Strafgesetzbuch, there are two sections relating to homicide:
... whoever kills a human being out of murderous intent, to satisfy sexual desires, out of greed or otherwise base motives, insidiously or cruelly, or with means dangerous to the public, or in order to commit or cover up another crime ...
The current form of § 211 StGB was created in 1941 by Nazi jurist Roland Freisler. Before that the differentiation between Mord (murder) and Totschlag (killing) was that Mord was killing "with consideration" ("mit Überlegung") and Totschlag without (StGB 1871–1941). Before 1871 there was no united German state and therefore no common penal code. Many German states defined Mord (murder) as killing "with consideration" and Totschlag without—similar to other continental European countries today (for example the Netherlands). Consideration is similar to, though not same as, premeditation. While premeditation only means that there is forethought or a plan, consideration is defined as a psychological state of mind, in which the criminal is consciously weighing the motives for and against the crime. Under this concept a homicide that was not planned in advance or at least taken into account in advance by the criminal could not be considered to be murder (Mord) under German law (nor would it constitute premeditation). Those were only punished as a grave case of Totschlag. Furthermore, there were disputes as to when and how the consideration should have taken place—before the crime, while committing the crime, e.g. Therefore, this differentiation was considered too vague. The reform was oriented on discussions for the reform of the Swiss StGB, which made the same distinction. It took over the idea and mainly also the wording of the reform commission for the Swiss StGB headed by Carl Stoss in 1896. Also the new differentiation between Mord and Totschlag contains problems. This led to ongoing discussions in the legal community about the wording, the interpretation and also about a reform of the law. There are especially disputes about the question when a motive is to be considered as a base motive and when it should be considered as treacherous (or "by stealth").
If the victim of a killing earnestly wanted to be killed (for example, when suffering an incurable disease) the crime would be Tötung auf Verlangen (killing on demand, § 216 StGB) which would result in 6 months to 5 years in prison (usually suspended) – basically, mercy killing. It however requires that the perpetrator was—solely or mainly—motivated by this demand. In 2002, there was a cannibal case in which the offender, Armin Meiwes, claimed that the victim wanted to be killed. The court convicted him of Totschlag, since they did not see the qualifications of a murder. Both prosecution and defense appealed, the prosecution in order to reach a verdict of murder, the defense in order to reduce the charge to killing on demand. The German Federal Court of Justice, the highest German court of appeal, eventually convicted him of murder because, while the victim did want to be killed, there was still the base motive of cannibalism.
If the killing was due to negligence it is punished according to § 222 StGB as fahrlässige Tötung (negligent homicide or manslaughter). Many cases in this field are car accidents due to negligence that result in the death of a person.
If the death is a negligent consequence of an intended act of violence, it is classified as Körperverletzung mit Todesfolge (infliction of bodily harm with deadly outcome—§ 227 StGB). The penalty is a prison sentence of 3 to 15 years. The crime of fatal injuries, corresponds to the classic "preterintention" homicide: similar to the Anglo-Saxon Felony-Murder (for example, << If John commits a felony, a serious crime, and Jim's death results from this, John is responsible for the most serious form of homicide (murder) even if Jim's death was neither foreseen nor foreseeable by him>>, It's a homicide praeter intentionnel), to homicide "praeter-intentionnel" (art. 222-7 French penal code), to homicide "preterintenzionale" (art. 584 Italian penal code).
The penalty for Mord is life imprisonment. Parole may be granted after a minimum of 15 years; typically after 18 years but 23 years or longer in serious cases. In the formulation of the law as of 1941, until the abolition of the death penalty in 1949, death was the mandatory sentence for Mord, with "special cases" being punished with a life sentence in a house of correction, effectively making the sentence discretionary to the judge. Totschlag was punished from a relatively lenient prison sentence of five years up to a life sentence.
The penalty for Totschlag (intentional homicide, otherwise) is currently five to fifteen years in prison and in especially grave cases life imprisonment (minimum sentence 15 years). Life sentences for Totschlag are rare as such an offence would typically qualify as Mord (§ 211).
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Murder in German law
Under the German penal code, Strafgesetzbuch, there are two sections relating to homicide:
... whoever kills a human being out of murderous intent, to satisfy sexual desires, out of greed or otherwise base motives, insidiously or cruelly, or with means dangerous to the public, or in order to commit or cover up another crime ...
The current form of § 211 StGB was created in 1941 by Nazi jurist Roland Freisler. Before that the differentiation between Mord (murder) and Totschlag (killing) was that Mord was killing "with consideration" ("mit Überlegung") and Totschlag without (StGB 1871–1941). Before 1871 there was no united German state and therefore no common penal code. Many German states defined Mord (murder) as killing "with consideration" and Totschlag without—similar to other continental European countries today (for example the Netherlands). Consideration is similar to, though not same as, premeditation. While premeditation only means that there is forethought or a plan, consideration is defined as a psychological state of mind, in which the criminal is consciously weighing the motives for and against the crime. Under this concept a homicide that was not planned in advance or at least taken into account in advance by the criminal could not be considered to be murder (Mord) under German law (nor would it constitute premeditation). Those were only punished as a grave case of Totschlag. Furthermore, there were disputes as to when and how the consideration should have taken place—before the crime, while committing the crime, e.g. Therefore, this differentiation was considered too vague. The reform was oriented on discussions for the reform of the Swiss StGB, which made the same distinction. It took over the idea and mainly also the wording of the reform commission for the Swiss StGB headed by Carl Stoss in 1896. Also the new differentiation between Mord and Totschlag contains problems. This led to ongoing discussions in the legal community about the wording, the interpretation and also about a reform of the law. There are especially disputes about the question when a motive is to be considered as a base motive and when it should be considered as treacherous (or "by stealth").
If the victim of a killing earnestly wanted to be killed (for example, when suffering an incurable disease) the crime would be Tötung auf Verlangen (killing on demand, § 216 StGB) which would result in 6 months to 5 years in prison (usually suspended) – basically, mercy killing. It however requires that the perpetrator was—solely or mainly—motivated by this demand. In 2002, there was a cannibal case in which the offender, Armin Meiwes, claimed that the victim wanted to be killed. The court convicted him of Totschlag, since they did not see the qualifications of a murder. Both prosecution and defense appealed, the prosecution in order to reach a verdict of murder, the defense in order to reduce the charge to killing on demand. The German Federal Court of Justice, the highest German court of appeal, eventually convicted him of murder because, while the victim did want to be killed, there was still the base motive of cannibalism.
If the killing was due to negligence it is punished according to § 222 StGB as fahrlässige Tötung (negligent homicide or manslaughter). Many cases in this field are car accidents due to negligence that result in the death of a person.
If the death is a negligent consequence of an intended act of violence, it is classified as Körperverletzung mit Todesfolge (infliction of bodily harm with deadly outcome—§ 227 StGB). The penalty is a prison sentence of 3 to 15 years. The crime of fatal injuries, corresponds to the classic "preterintention" homicide: similar to the Anglo-Saxon Felony-Murder (for example, << If John commits a felony, a serious crime, and Jim's death results from this, John is responsible for the most serious form of homicide (murder) even if Jim's death was neither foreseen nor foreseeable by him>>, It's a homicide praeter intentionnel), to homicide "praeter-intentionnel" (art. 222-7 French penal code), to homicide "preterintenzionale" (art. 584 Italian penal code).
The penalty for Mord is life imprisonment. Parole may be granted after a minimum of 15 years; typically after 18 years but 23 years or longer in serious cases. In the formulation of the law as of 1941, until the abolition of the death penalty in 1949, death was the mandatory sentence for Mord, with "special cases" being punished with a life sentence in a house of correction, effectively making the sentence discretionary to the judge. Totschlag was punished from a relatively lenient prison sentence of five years up to a life sentence.
The penalty for Totschlag (intentional homicide, otherwise) is currently five to fifteen years in prison and in especially grave cases life imprisonment (minimum sentence 15 years). Life sentences for Totschlag are rare as such an offence would typically qualify as Mord (§ 211).