(No) Reform of the Murder Statute § 211 StGB?

For years, a reform of homicide offenses, particularly the murder statute § 211 StGB, has been under discussion.

Already in 2016, after two years of consultation within a highly qualified expert group, there was a clear recommendation to reform the murder statute.

When is someone a murderer?

Contrary to what many think, the difference between criminal liability for manslaughter under § 212 StGB and criminal liability 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 murderer is someone who fulfills at least one of the various murder characteristics. These are divided into objective (act-related) and subjective (perpetrator-related) murder characteristics. The murder characteristics of the first and third groups are subjective, those of the second group are objective.

According to § 211 StGB, a person is punished as a murderer if they kill another person out of bloodlust, to satisfy sexual desire, out of greed, or otherwise from base motives, treacherously or cruelly, or with means dangerous to the public, or to enable or conceal another criminal offense.

The murder characteristics of the first group include:

Bloodlust, which exists when the killing of the victim as such constitutes the sole purpose of the act, particularly when killing occurs solely from the pleasure of destroying a human life.

Killing to satisfy sexual desire, which is fulfilled by someone who seeks sexual gratification in the act of killing itself (“lust murder”), who kills the victim in order to sexually gratify themselves with the corpse, or who accepts the victim’s death in order to carry out sexual intercourse.

Killing out of greed, which is understood as a direct, heightened pursuit of financial advantages at any cost. Someone kills out of greed when, in committing the act, they are guided by the notion that their assets will increase directly through the victim’s death or that the death creates a prospect of increased wealth (e.g., killing in an effort to be named as an heir, killing in fulfillment of a paid contract).

Killing from base motives, which encompasses all motives that, according to general ethical evaluation, are at the lowest level and are therefore particularly despicable and reprehensible. In the evaluation to be undertaken, all circumstances of the act and the perpetrator must be included in the assessment. Base motives have been assumed to include, for example, racial hatred, xenophobia, or vindictiveness.

The murder characteristics of the second group include the act-related, i.e., objective murder characteristics. These include:

The murder characteristic of treachery. Someone acts treacherously if they exploit the victim’s unsuspecting and defenseless state with hostile intent, i.e., attack someone who could not expect an attack and was therefore unable to defend themselves.

The murder characteristic of cruelty. Someone kills cruelly if they inflict particular pain or torment of a physical or psychological nature on the victim from a callous disposition.

Killing with means dangerous to the public, i.e., with means that the perpetrator can no longer control in the concrete factual situation and that are capable of endangering a large number of people in life or limb (e.g., use of explosives or fire as a means of killing).

Further perpetrator-related murder characteristics are those of the third group, namely killing with intent to enable or intent to conceal. These murder characteristics describe the particularly reprehensible purpose that the perpetrator pursues with the act. The perpetrator must imagine that they can conceal or enable another criminal offense through the murder. The perpetrator must be concerned with enabling or concealing another offense, not necessarily their own.

Reform Proposals from 2016 – No Longer Current?

Anyone who fulfills at least one of the murder characteristics is punished as a murderer according to § 211 StGB with a life sentence.

Notwithstanding the possibility existing in German criminal law to suspend a life sentence on probation after 15 years according to § 57a StGB, “life sentence” means that a life sentence must be imposed mandatorily. This mandatory, non-variable sentencing framework represents one of the core points of the discussed reform.

According to the internal reform proposals of the Federal Ministry of Justice, manslaughter enshrined in § 212 StGB should constitute the basic offense and § 211 StGB a qualified offense, in order to enable a more variable sentencing framework in individual cases.

The draft of the Federal Ministry of Justice from 2016 also envisaged restructuring the murder characteristics.

In particular, the murder characteristic of treachery was to undergo significant change. The reason for this was especially the so-called domestic tyrant cases, in which a wife who is beaten and tormented by her husband kills him in his sleep because she sees no other way to protect herself (and her children). In these cases too, the murder characteristic of treachery is generally fulfilled, which is why the killing wife must be sentenced to life imprisonment under current law. The reform draft provided for a sentence of not less than five years for this type of case.

The internal reform proposals from 2016 do not appear to be pursued further at present.

In November 2023, Federal Minister of Justice Marco Buschmann announced merely a linguistic revision of the homicide offenses. The use of the current formulations is no longer compatible with modern criminal law.

The background is that the homicide offenses date from 1941 and distinguish according to perpetrator models, so the relevant paragraphs of the Criminal Code speak of murderers and manslayers. According to the reform draft, the wording is based on the perpetrator doctrine popular during the Nazi era. The formulations of the homicide offenses can be traced back to Roland Freisler, State Secretary in the Prussian Ministry of Justice and later Nazi executioner.

The German Bar Association (DAV) has already pointed out that a purely linguistic revision cannot be sufficient.

Should you, your acquaintances, or your relatives be charged with homicide offenses or be subject to a related investigation procedure, it is extremely important to be advised and represented by a technically proficient criminal defense attorney.

The law firm MPP Rechtsanwälte offers you the best possible support. The attorneys of the firm Mügge, Dr. Pitschel and Partners can advise you comprehensively and individually through years of expertise and successfully concluded proceedings.