(No) Reform of the Murder Paragraph § 211 StGB?
For years, a reform of homicide offenses, particularly the murder paragraph § 211 StGB, has been discussed. In 2016, after two years of consultation within a high-level expert group, there was a clear recommendation to reform the murder paragraph.
When is someone a murderer?
Contrary to popular belief, the difference between being liable for manslaughter under § 212 StGB and being liable for murder under § 211 StGB does not lie in the presence of intent, but in the presence of one or more murder characteristics.
According to § 211 StGB, a person is considered a murderer if they fulfill at least one of the various murder characteristics. These are divided into objective (offense-related) and subjective (offender-related) characteristics. Subjective characteristics include those of the first and third groups, while objective characteristics belong to the second group.
A person is punished as a murderer under § 211 StGB if they kill another person out of lust for murder, to satisfy sexual urges, out of greed, or other base motives, treacherously, cruelly, or with means dangerous to the public, or to enable or cover up another crime.
The murder characteristics of the first group include:
- Lust for murder, which is present when the killing of the victim is the sole purpose of the act, especially when the killing is done solely for the pleasure of destroying a human life.
- Killing to satisfy sexual urges, fulfilled by those who seek sexual satisfaction in the act of killing, kill the victim to sexually gratify themselves on the corpse, or accept the victim’s death to perform sexual intercourse.
- Killing out of greed, involving a direct, heightened desire for financial gain at any cost. This includes killing with the idea that one’s wealth will increase directly by the victim’s death or that the death creates an opportunity for financial gain (e.g., killing to be named an heir, fulfilling a paid contract to kill).
- Killing out of base motives, covering motives that are particularly contemptible and despicable according to general moral standards. All circumstances of the act and the offender must be considered in this evaluation. Examples include racial hatred, xenophobia, or revenge.
The second group’s characteristics are offense-related (objective):
- Treacherous killing, defined as exploiting the victim’s unsuspecting and defenseless state in a hostile manner, meaning attacking someone who did not expect an assault and therefore could not defend themselves.
- Cruel killing, which involves inflicting excessive pain or suffering on the victim, physically or emotionally, out of a callous attitude.
- Killing with means dangerous to the public, using methods that the offender cannot control in the situation and that can endanger a large number of people (e.g., using explosives or fire).
Additional offender-related characteristics include those of the third group, involving killing with intent to enable or cover up another crime. These characteristics describe the particularly reprehensible purpose the offender pursues with the act. The offender must envision that the murder will enable or conceal another crime, not necessarily their own.
2016 Reform Proposals – Still Relevant?
Anyone who fulfills at least one of the murder characteristics is punished as a murderer under § 211 StGB with a life sentence. Despite the possibility under German criminal law to suspend a life sentence on probation after 15 years (§ 57a StGB), “life sentence” means that a life sentence must be imposed. This mandatory, non-variable sentence is one of the core points of the discussed reform.
The 2016 internal reform proposals of the BMJ suggested that manslaughter (§ 212 StGB) should be the basic offense, and § 211 StGB an aggravated form, allowing for more flexible sentencing in individual cases.
The draft also proposed restructuring the murder characteristics. Particularly, the characteristic of treachery was to be significantly altered due to so-called “house tyrant” cases, where a wife, abused by her husband, kills him in his sleep as a last resort to protect herself and her children. Under current law, such cases typically fulfill the treachery characteristic, resulting in a life sentence for the wife. The reform suggested a minimum sentence of five years for such cases.
However, these reform proposals seem to have been shelved. In November 2023, Federal Minister of Justice Marco Buschmann only announced a linguistic revision of the homicide offenses, stating that the current formulations are inconsistent with modern criminal law.
The Need for Legal Assistance
If you, your acquaintances, or relatives are accused of homicide or are subject to a related investigation, it is crucial to seek advice and representation from a competent criminal defense attorney.
Our law firm, MPP Rechtsanwälte, offers the best possible support. The lawyers at Mügge, Dr. Pitschel, and Partner can provide comprehensive and personalized advice backed by years of expertise and successfully concluded cases.
If you have further questions or are a defendant in a criminal case, please feel free to contact us.