Under the German penal code, , there are two sections relating to homicide:
, § 212, "killing", is the intentional killing of another human and is punished with five to fifteen years in prison or imprisonment for life in particularly severe cases, , § 211, "murder", is used only if the case is especially severe, and is punished with life imprisonment
Background The current form of § 211 StGB was created in 1941 by Nazi jurist Roland Freisler. Before that the differentiation between (murder) and (killing) was that was killing "with consideration" () and without (StGB 1871–1941). Before 1871 there was no united German state and therefore no common penal code. Many German states defined (murder) as killing "with consideration" and 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 () under German law (nor would it constitute premeditation). Those were only punished as a grave case of . 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 and 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 (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 , 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 (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 (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).
Penalties The penalty for 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 (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 are rare as such an offence would typically qualify as (§ 211).
In lesser cases (, § 213) of the prison sentence is one to ten years. The law itself gives one example for a minor case: the killing due to the provocation of the killed person, e.g. if the killed person has beaten the offender or one of his relatives or has severely insulted them and the killer acted under the influence of great anger. Thus, the lesser case of roughly corresponds to common-law voluntary manslaughter.
The criteria for The qualifying circumstances are categorized into three groups: reprehensible motive/reason of the criminal (base motives). reprehensible means of committing the crime (base means of committing the crime). reprehensible purpose/aim of the criminal (base aims).
The first and third group are related to the criminal (), the second to the crime ().
Base motives The law mentions three examples for base motives, all else fall under the catchall clause of "another base motive": Murderous intent is fulfilled when the only purpose of the crime is to see another human being dying. This motive is very rare in practice. Killing to satisfy sexual desires are cases of killing during a rape or killings with the intention to use the dead body for sexual practices. Filming the killing and using the video for sexual stimulation also qualifies. Killing out of greed means that the perpetrator kills in order to increase his fortune. This is the case when the perpetrator kills another person in order to rob the victim, or in order to inherit the fortune of the victim, to get the money from the life insurance. Also killings in order to decrease liabilities fall into that category, for example killing a child in order to get rid of the liability to pay child support. From an economic point of view increasing the personal fortune can also be done by decreasing liabilities. The judiciary follows that argument, while some in the legal literature see only the increase of fortune as falling under greed (they would consider killing to get rid of liabilities under "another base motive"). If the person believes to have a legal title to the object or the fortune the act is not considered to be out of greed. The same is the case when the crime is committed out of a bundle of motives, except when the motive to increase the fortune is dominating the crime. to kill is sufficient for killing out of greed, except in cases where that would be contradictory to the assumption of greed. For example, killing in order to inherit a fortune, to get money from the life insurance or to get rid of the liability to pay child support can only be fulfilled when the perpetrator has the targeted aim to kill the victim (direct intention, of one degree).
Other base motives are all other motives that are on the lowest level, detestable and despicable. The basis for this value judgment is the opinion of the domestic legal community. This has to be decided case by case, taking into account each crime and the personality of the criminal. However, certain criteria were developed. One is the idea that there has to be a gross disproportion between the reason for the crime and the result of the crime. Also the mentioned base motives or purposes in § 211 StGB are used to check whether another motive can be considered as base: Killing out of little or no reason is considered close to murderous lust. Killing to arouse the sexual desire is equal to the mentioned killing "to satisfy the sexual desire". Killing out of envy of the economic success of another person or in order to be able to marry a rich woman is seen as equal to greed. Killings in order to cover up a misdemeanor or an embarrassing situation are seen as close to the motive "to cover up another crime" (§ 211 II 3 Group). Examples: Killing of the wife in order to get another wife, xenophobia, killing in order to avoid to pay a fine, honour killings.
Base methods The law considers three ways of committing a killing as base:
Treacherous killing The judiciary sees a killing as treacherous or by stealth if the perpetrator is consciously using the unsuspiciousness and defenselessness of the victim to attack them in a hostile attitude.
The perpetrator has to be aware of the fact that the victim is unaware of an attack and is defenseless. He has to act in a hostile attitude. With this definition mercy killings are excluded as well as suicide cases, in which the perpetrator wants to take a close person with him, in a situation of despair. The criterion of consciousness excludes cases in which the perpetrator acts in a heat of passion (affect) and therefore is not realizing that he kills a person that is unaware of the attack. However, an affect does not necessary exclude to consider the killing as treacherous. The criminal has to use the defenselessness and the unsuspiciousness. Only using the defenselessness is not enough. The courts require that the victim must have the ability to be suspicious. That is not the case, when the victim is unconscious or is a child below three years. However, in those cases the killing is treacherous, when the perpetrator uses the unsuspiciousness of the parents or other persons who take care of the person to commit the crime. A typical case of a treacherous killing is an attack from the back, out of hiding or the killing of a sleeping person. A person takes his unsuspiciousness from attack with him to sleep.