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Murder, Manslaughter & Homicide -“Capital Offences” in Germany

Capital offences in criminal law cover all intentional homicides. In capital criminal proceedings, the accused is usually provisionally arrested or detained, which already represents a considerable intrusion into the life of the accused. Capital offences can be broken into murder, manslaughter and other forms of homicide. In cases involving capital offences, it is particularly important that the legal representatives are experienced and knowledgeable in their area of expertise. Knowing what is involved in criminal procedure and also being aware of the options available to their client is vital. Consult with the team at Schlun & Elseven Rechtsanwälte for expert legal support.

At Schlun & Elseven our attorneys represent clients in a range of criminal law offences.

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Capital Offences: Murder and Manslaughter

Although the death penalty does not exist in Germany,  due to its incompatibility with human rights, the accused of a capital crime is exposed to considerable risks. Even an attempted murder can bring about a sentence for life imprisonment.

In no other area is the pressure on the criminal prosecution authorities greater. Due to the consequences of the crime and the public pressure, the view of the prosecuting authorities and the court is often clouded. When outside pressure influences decision-making mistakes are likely to be made.

It is the criminal defence lawyer’s job to make it known when such mistakes have occurred to ensure that justice prevails. For this reason, employing a well-versed criminal defence lawyer is indispensable.


But What Distinguishes Murder from Manslaughter?

According to § 212 StGB (German Criminal Code), a manslaughterer is someone who kills a person without being a murderer. Since the legislator in principle only criminalises intentional acts, as long as no punishability for negligent commission is expressly regulated in the Criminal Code, the intentional killing of a human being is initially required for the offence of manslaughter. However, this definition of manslaughter makes a look at § 211 StGB indispensable. According to § 211 para. 2 StGB, a murderer is someone who kills another person

  • out of a lust to kill, to obtain sexual gratification, out of greed or other base motives,
  • perfidiously or cruelly or by means constituting a public danger, or
  • to facilitate or cover up another offence,

At least one of these so-called murder characteristics must be present for a manslaughter to become a murder. The interpretation of the murder features has caused a great stir in the recent past, after the Berlin Regional Court had initially convicted two young men of murder for running a motor vehicle race with a fatal outcome. Since this verdict, the definition of the crime of murder has been experiencing a change, particularly in road traffic accidents.


Personality of the Offender

In homicide offences, the history and personality of the perpetrator is of considerable importance in addition to the act of committing the crime. The presentation of the accused’s past history and personality is particularly important in the context of sentencing and criminal liability. It is in such cases that issues around the accused’s criminal record will play a part.

However, it is worth bearing in mind that the personality of the offender, their criminal record and the pressure from outside forces can lead to the wrong decisions. Authorities can be swayed by other influences.

Having a criminal record and prior history can have an impact but it cannot lead to sanctions for crimes not committed. Despite the presence of a criminal record it still must be proved that the accused committed the capital offence (whether it is murder or manslaughter etc.).


Capital Offences: Other Homicides

In addition to the above-mentioned offences, the Criminal Code contains several other offences relating to the killing of another human being. These offences are also punishable by law. Not all of these offences fit directly into the category of “murder” as the intention may not have been the death of the other human being.

However, in these cases, they were other illegal actions that in turn led to the death of the victim. Such offences include the sexual abuse of children resulting in death (§ 176b StGB), sexual coercion and rape resulting in death (§ 178 StGB), involuntary manslaughter (§ 222 StGB), bodily injury resulting in death (§ 227 StGB), robbery resulting in death (§ 251 StGB) and prohibited motor vehicle racing resulting in death (§ 315d StGB).


Killing on Demand – Assisted-Suicide

The criminal liability for killing on demand is regulated in § 216 StGB. According to § 216 StGB, a prison sentence of six months to five years is recognizable if someone has been designated for killing by the explicit and serious request of the person killed. This paragraph plays a particular role for doctors and medical staff. As can be seen assisted-suicide is not permissible in Germany. § 216 StGB even states that attempting to do so can be punishable by law. The application and interpretation of § 216 StGB is of decisive importance within the framework of the admissibility of active and passive euthanasia and has therefore been the subject of much public debate.

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Practice Group: German Criminal Law

Practice Group:
German Criminal Law

Philipp Busse

Lawyer

Dr. Julius Hagen

Lawyer

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