(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.