Concept and definition of the death penalty
Die Death penalty, also capital punishment called, refers to the state-sanctioned execution of a person as a punishment for a crime. It represents the most severe criminal sanction and is the subject of controversial legal and societal debates worldwide. The application, design, abolition, or restriction of the death penalty is based on the relevant national and international regulations, shaping both legislation and jurisdiction.
Historical development of the death penalty
The practice of the death penalty dates back to antiquity and was used in almost all known high civilizations. The respective legal foundations and constituent elements evolved over time depending on social, religious, and political circumstances.
Antiquity and Middle Ages
Already in the Code of Hammurabi (circa 1700 BC) execution is provided as punishment for certain offenses. In Roman and Greek legal tradition, the death penalty often served to punish capital offenses and acts against the state. In medieval Europe, it was mainly applied to murder, robbery, and high treason.
Modern times to today
With the rise of the Enlightenment in the 18th and 19th centuries, especially in Europe, criticism of the death penalty grew. Numerous states restricted its scope or suspended it entirely. In the 20th and 21st centuries, international agreements, particularly in the field of human rights, have had a strong influence on the global practice.
Legal foundations of the death penalty
National constitutions and criminal laws
The application or rejection of the death penalty is explicitly regulated in the constitutions or criminal laws of many countries. In Germany, Art. 102 Basic Law prohibits any form of the death penalty. Other countries, such as the USA or China, include respective provisions and define in criminal law the offenses for which the death penalty may be imposed.
Examples of national regulations:
- United States: Application is regulated at the state level. Over half of US states permit it for selected offenses (notably murder).
- China: The death penalty is permitted for a wide range of offenses, including economic crimes.
- Germany and Switzerland: Abolition of the death penalty after 1949 or 1942 (Switzerland).
International agreements
European Convention on Human Rights (ECHR)
Das Protocol No. 6 to the ECHR prohibits the death penalty in peacetime; Protocol No. 13 prohibits it without exceptions. Almost all member states of the Council of Europe have ratified both protocols.
International Covenant on Civil and Political Rights (ICCPR)
Art. 6 ICCPR protects the right to life but allows for the restricted application of the death penalty, provided it is specifically regulated and preceded by a regular court proceeding. Optional Protocol II aims at global abolition.
Other agreements
Numerous regional and international documents (e.g., the American Convention on Human Rights) increasingly regulate the possibility of imposing the death penalty.
Prohibition of the death penalty: Overview of the global legal situation
Worldwide, the legal situation can be divided into the following categories:
- Complete abolition: Countries that have completely abolished the death penalty, including Europe, Australia, and large parts of South America.
- Abolition in practice: Countries that allow it by law but have not used it for a long time (e.g., Russia).
- Limited application: Death penalty only for exceptional crimes, such as high treason or during war.
- Regular application: Countries where the death penalty remains an integral part of criminal law and is regularly enforced (e.g., China, Iran, Saudi Arabia, parts of the USA).
Procedural aspects
Criminal procedural requirements
The imposition of the death penalty is always tied to heightened procedural requirements. These include the right to a fair trial, the presumption of innocence, adequate defense, and the prohibition of double jeopardy (ne bis in idem). International legal norms codify special procedural protections for defendants facing the death penalty.
Right of pardon and suspension
In numerous states, it is possible to commute an imposed death sentence to a term of imprisonment through an act of clemency. This right of pardon generally lies with the head of state or a special body.
Execution and methods of execution
The mode of execution varies according to national law (e.g., beheading, shooting, hanging, lethal injection, electrocution). Modern international standards require that executions be carried out without unnecessary pain and suffering.
Death penalty and human rights
The death penalty affects fundamental rights, in particular the right to life (Art. 6 ICCPR, Art. 2 ECHR) and the prohibition of torture (Art. 7 ICCPR, Art. 3 ECHR).
Discrimination and special protected groups
International regulations prohibit the application of the death penalty to minors (Article 6 (5) ICCPR, UN Convention on the Rights of the Child) and pregnant women. Disadvantaging particular population groups through discriminatory application is also condemned.
Debates on irreversibility and wrongful convictions
The irreversibility of the sanction bears particularly serious consequences in the event of wrongful convictions, and this is frequently cited as an argument for total abolition in international legal debates.
Abolition and reintroduction
Legal abolition
Procedures for removing the death penalty from the body of law generally take place through legislative amendment or constitutional reform. The binding effect of international agreements often provides an additional deterrent to reintroduction.
Interstate monitoring and supervision
International organizations such as the United Nations and the Council of Europe exert influence on existing or planned regulations through monitoring and state reports.
Summary
The death penalty is a sanctioning instrument of criminal law that has existed for thousands of years and is increasingly regulated or abolished internationally. Today, the focus is not only on national norms, but above all on international agreements, the rights of the accused, the protection of life, and the judicial review of decisions. The legal evaluation remains controversial in many legal systems, but reflects the continuously growing human rights standards.
Keywords: Death penalty, capital punishment, criminal law, human rights, international law, right to life, ECHR, ICCPR, abolition, procedural law, right of pardon, execution.
Frequently asked questions
Is the death penalty permitted under German law?
Under German law, the death penalty is expressly prohibited. Article 102 of the Basic Law for the Federal Republic of Germany, in effect since 1949, states unequivocally: “The death penalty is abolished.” This excludes any legal basis for its imposition or execution under German law. Even for the most serious crimes such as murder, the highest penalty provided for in the German Criminal Code (StGB) is life imprisonment. This constitutional provision is binding on all state institutions and forms an essential part of the constitutional order. In addition, sentences from the National Socialist period based on the death penalty no longer have legal validity in post-war Germany and have in many cases been expressly repealed or declared void.
Can a German citizen be sentenced to death abroad?
German citizens can be sentenced to death in countries where the death penalty is still practiced. German law cannot prevent the application of foreign criminal law on foreign territory. However, in such cases, the German government regularly intervenes diplomatically on behalf of its citizens and seeks mitigation of punishment or suspension of execution. There are also bilateral and multilateral agreements that provide for consular protection and humanitarian intervention; however, their actual effects depend on the legal system of the respective foreign state. Extradition of German citizens abroad for the enforcement of the death penalty is prohibited under German law (Art. 16 para. 2 GG in conjunction with the Act on International Cooperation in Criminal Matters).
How does German law deal with evidence or verdicts obtained through threats of the death penalty?
German criminal procedure law expressly prohibits the use of evidence obtained through torture or other coercive measures—including, in particular, threats of the death penalty (§ 136a StPO). A confession or evidence obtained by such means is inadmissible in proceedings, as it violates human dignity and fundamental principles of the rule of law. Likewise, foreign judgments rendered in violation of fundamental procedural safeguards and especially involving the application or threat of the death penalty are generally not recognized or enforced in German recognition law.
May Germany provide evidence for a criminal proceeding if the accused faces the death penalty in a third country?
According to the Act on International Cooperation in Criminal Matters (IRG), Germany is obligated to examine whether transfer of evidence to a foreign state may lead to the imposition and execution of the death penalty in those proceedings. It generally does not transfer evidence if the possibility of the death penalty exists, unless the requesting state gives binding assurances that the death penalty will not be executed in the individual case. If such assurances are lacking, the German government is required to refuse legal assistance (§ 8 para. 1 no. 1 IRG). This principle underscores the prohibition against participating in a foreign death penalty.
How does Germany act internationally towards states that apply the death penalty?
Germany is a party to several international agreements aiming for the abolition of the death penalty, including the Second Optional Protocol to the International Covenant on Civil and Political Rights of the United Nations and Protocols No. 6 and No. 13 to the European Convention on Human Rights (ECHR). Germany is actively engaged in international organizations such as the European Union and the Council of Europe for the worldwide abolition of the death penalty. It supports resolutions and initiatives aimed at abolition or at least moratoria on executions, and regularly reviews human rights questions in its foreign policy, especially regarding states that continue to enforce the death penalty.
What is the legal situation regarding the death penalty in military conflicts under German law?
German law does not make exceptions for the death penalty even in times of emergency or war. Since its abolition under the Basic Law, the death penalty is strictly forbidden, without exception, including situations of internal or external emergency or in the context of military conflict. This contrasts with earlier regulations, such as the Weimar Constitution, which in exceptional circumstances still permitted the death penalty. International treaties, such as Geneva Protocol II, also advocate a strict prohibition or significant restriction of the death penalty during armed conflicts.
