Definition and Significance of Killing
The term killing in the legal sense refers to causing the death of a human being through the actions of another person. Killing lies at the center of numerous legal questions, particularly in criminal law, civil law, and public law. The constitutional, criminal, and civil regulations regarding acts of killing are fundamentally important for the protection of human life and for the functioning of the state’s monopoly on the use of force.
Criminal Law Classification
Criminal offenses against life
German criminal law distinguishes between various homicidal offenses, which are regulated in Section 16 of the Special Part of the German Criminal Code (StGB), in particular §§ 211 ff. StGB. The most important homicide offenses are:
Murder (§ 211 StGB)
Murder is characterized by especially reprehensible circumstances. These are the so-called murder characteristics (e.g., base motives, treachery, cruelty, or use of means dangerous to the public).
Manslaughter (§ 212 StGB)
In manslaughter, a person is killed intentionally, without the presence of particularly reprehensible characteristics of murder.
Bodily injury resulting in death (§ 227 StGB)
Here, an intentional or negligent bodily injury causes the death of the victim, without a direct intent to kill.
Negligent homicide (§ 222 StGB)
Negligent homicide occurs when death is caused by a breach of the duty of care required in traffic, without intent.
Assistance with suicide and killing on request (§§ 216, 217 StGB)
Die Killing on request is a special case: Here, the perpetrator acts upon the explicit, serious, and insistent request of the victim. The Assistance with suicide (assisting in suicide) is, by contrast, legally disputed under German law and was for a long time punishable. Since the Federal Constitutional Court’s decision in 2020, the commercial promotion of suicide is no longer generally punishable.
Elements of criminal homicide offenses
The basic element of all homicide offenses is causing the death of another human being. This exclusively includes living persons. The elements differentiate according to intent, motive, means, and circumstances of the offense, as well as the degree of reprehensibility.
Legal grounds for justification and excuse
Not every killing constitutes a criminal act. There are legal grounds for justification and excuse:
Self-defense (§ 32 StGB)
If someone kills in a situation of self-defense, the killing is, under certain circumstances, not punishable.
Necessity (§ 34 StGB)
A killing may also be justified for averting significant dangers, provided that no other reasonable action is possible and this is the least severe means.
Consent and presumed consent
Consent to being killed is generally irrelevant, except in the specifically regulated case of killing on request.
Civil law aspects of killing
Compensation for death
The German Civil Code (BGB) regulates which civil law claims the surviving dependents of a killed person have.
Compensation for loss of maintenance (§ 844 BGB)
Persons who were supported by the deceased can claim compensation for lost maintenance payments from the injuring party.
Compensation for funeral expenses (§ 844 para. 1 BGB)
The funeral costs must be borne by the injuring party. In addition, claims for pain and suffering (including under § 823 BGB) can arise in connection with a killing.
Non-material claims
Relatives may, in certain cases, assert non-material claims, especially in cases of serious violations of general personal rights.
Public law aspects of killing
State duty to protect
The killing of a human being concerns the fundamental right to life under Art. 2 para. 2 sentence 1 of the Basic Law (GG). The state is obliged to protect life and to provide the necessary legal framework.
State sanctioning and prevention
In addition to repressive measures (criminal law), authorities (police, public order authorities, health institutions) must act preventively if there are concrete dangers to life and limb.
International and European perspectives
Human rights
The European Convention on Human Rights (ECHR) protects the right to life in Art. 2 and regulates under certain conditions when interferences with this right, in particular by killing, are permissible.
Extradition, international cooperation
Homicide offenses are regularly extraditable offenses. International cooperation to combat homicide offenses is governed by numerous treaties.
Distinctions and differentiations
Differentiation from suicide
Suicide is not punishable; however, killing by another person or assistance with suicide may be punishable if actively carried out.
Killing of unborn life
The unborn (nasciturus) enjoys special protection, but the criminal law on killing does not apply to abortions within the first twelve weeks of pregnancy under certain conditions (§§ 218 ff. StGB).
Euthanasia, assisted dying, ending of life
The terms active and passive assisted dying, indirect assisted dying, and killing on request are the subject of ongoing legal and ethical discussions.
Historical development of criminal law on killing
Legal history is familiar with differing views regarding the classification and evaluation of acts of killing. Enlightenment principles and human rights have had a significant impact on today’s criminal law norms.
Summary
Die killing of a human being is one of the most serious events in the legal system. Its comprehensive legal assessment covers criminal, civil, and public law aspects. The protection of life, the prerequisites for criminal liability, grounds for justification and excuse, as well as the claims of surviving dependents are central topics in the context of killing. The ongoing development of legislation and jurisprudence reflects the particular significance of this legal asset.
Frequently Asked Questions
What are the legal differences between murder and manslaughter under German criminal law?
German criminal law makes a strict distinction between murder (§ 211 StGB) and manslaughter (§ 212 StGB). The central difference lies in the respective subjective elements of the offense and the severity of punishment. Murder requires the presence of so-called murder characteristics, which are categorized as base motives, particular execution of the act (e.g., treachery, cruelty), or perpetrator intention (greed, to facilitate another offense). If one or more of these characteristics is present, it is legally considered murder, which is punished with a life sentence. Manslaughter, on the other hand, covers the intentional killing of a person without the specific characteristics of murder. The penalty for this is usually between five and fifteen years of imprisonment; in particularly serious cases, a life sentence may also be imposed. Accordingly, both the motive and the manner of the act are decisive for the legal evaluation and the degree of punishment.
Are there less serious cases of killing under German law and how are they handled?
Yes, German criminal law recognizes less serious cases in connection with manslaughter and other homicide offenses. § 213 StGB explicitly regulates the less serious case of manslaughter, such as when the perpetrator was greatly provoked or pressured to act by the victim (e.g., as a reaction to severe insult or abuse). In such cases, the law provides for a reduced sentence of one to ten years of imprisonment. For other homicide offenses, such as killing on request (§ 216 StGB), i.e., in euthanasia cases, the sentence is even lower, ranging from six months to five years. The courts examine the particular motive and circumstances of the act in each individual case to ensure an appropriate sentence.
What role does the offender’s criminal responsibility play in homicide offenses?
The criminal responsibility (Schuldfähigkeit) of the offender is a central element in the assessment of homicide offenses. According to §§ 20 and 21 StGB, criminal responsibility may be diminished or absent due to pathological mental disorders, profound consciousness disturbances, mental deficiency, or serious psychological abnormalities. If complete lack of criminal responsibility is present, there is no punishment; in such cases, the proceedings may usually result in placement in a psychiatric hospital (§ 63 StGB). If responsibility is only diminished, the court may reduce the penalty in accordance with § 21 StGB. The assessment of criminal responsibility is carried out based on psychiatric expert opinions.
How does a negligent homicide offense differ legally from intentional killings?
Negligent homicide offenses are regulated in § 222 StGB and require that the death of a person is caused by unlawful but unintentional conduct. The main difference from murder and manslaughter is the absence of intent to kill. The penalty for negligent homicide ranges from a fine to five years’ imprisonment, and in particularly serious cases (e.g., gross negligence), it may be higher. Typical examples include traffic accidents or medical malpractice. For criminal liability, it is decisive whether the required standard of care was violated objectively and subjectively and whether the fatal outcome was foreseeable for the perpetrator.
What legal consequences can an attempted homicide have?
In the case of attempted homicide, whether as attempted murder (§ 211 in conjunction with § 23 StGB) or attempted manslaughter (§ 212 in conjunction with § 23 StGB), the perpetrator is also subject to significant penalties. In attempted murder, a sentence of life imprisonment may already be imposed, but at least a term of three years. For attempted manslaughter, the possible penalty is also significant, but less severe than for the completed offense. Mitigating circumstances such as the absence of serious harm or independent efforts to prevent the success of the attempt (withdrawal from the attempt, § 24 StGB) may be considered, which may even lead to exemption from punishment.
What significance does the victim’s consent have in homicide offenses?
Under German criminal law, a victim’s consent to their own killing is generally irrelevant and does not absolve the perpetrator from punishment. Even if the victim expressly wishes to be killed (e.g., in the case of serious illness), this is, at most, considered as a mitigating factor within the scope of killing on request (§ 216 StGB), but does not exempt the perpetrator from prosecution. This significantly distinguishes homicide offenses from other personal injury offenses, where effective consent of the victim may, under certain circumstances, result in impunity (e.g., in cases of minor bodily harm).
How do specific features of criminal law, such as self-defense, affect the punishment of homicide offenses?
Self-defense (§ 32 StGB) is a ground for justification and means that an otherwise constitutive and unlawful killing is not punishable if it was necessary to avert an ongoing, unlawful attack against oneself or another. Both proportionality and necessity of the means used must exist. If the perpetrator exceeds the limits of self-defense due to confusion, fear, or fright, he may remain exempt from punishment under § 33 StGB. The examination of self-defense requires a detailed assessment of the specific situation, whereby courts usually rule in favor of the attacked party, provided there are no evident cases of abuse.
