Germany: Can you be convicted for being a murderer twice? X5 t Pik89A.orKk RraWw Gg Eenve067d th
Germany has this weird specialty[0] in its criminal law's murder paragraph. While most paragraphs say something like "The person who does A is punished with
B", the murder paragraph (Strafgesetzbuch § 211) reads[1]:
(1) The murderer is punished with livelong imprisonment.
(2) A murderer is, who kills a person
- motivated by the lust to murder, to satisfy sexual desire, because of greed, or of other nether motives,
- in a perfidious or gruesome way or with means dangerous to the public safety or
- to facilitate or hide another crime.
Now, don't get held up by the conditions in (2), the important point here is that a person is being punished for being something (namely a murderer), not doing something.
Now you also need to know that livelong imprisonment in Germany usually means something like 30 years. So it's perfectly possible to murder somebody, go to prison, get out, murder somebody else.
However, at the point of the second murder are already a murderer, for which you already have been punished. The paragraph says that you are being punished for being a murderer, not for murdering somebody.
Thus - do you walk free the second time? I imagine the answer being "obviously not", however how does that follow from the above paragraph?
[0] Which has been subject to a lot of discussion, especially since it stems from Germany's Nazi times…
[1] Translation is mine, and I'm not a law person, so take it with a grain of salt.
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The first line is “who kills a person”. That is clearly doing something. And the last three lines describe the motivation, not what you are. – gnasher729 7 hours ago
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2I'd imagine that this would be a reasonable interpretation of the (unreasonable) wording. As the original Nazi law saw execution or (truly-)lifelong imprisonment as the only two possible outcomes of a conviction for Mord, there was no reason to expect a convicted murderer back in court. The current interpretation does not make much of the distinction act/actor (or of the term lifeling...). – bukwyrm 6 hours ago
3 Answers
Murder is one of the few cases where the intention and not just the act is relevant. The act – killing a person – is the same for Mord and Totschlag, whereas fahrlässige Tötung covers acts that have caused the death of a person. The language of the Stgb labels the perpetrator who killed someone as a murderer or manslaughterer depending on their intention.
That a person and not an act is punished is often criticized, but it has no practical consequence. Clearly, the intention isn't that the second one is free. Courts are able to interpret the law reasonably.
However, the distinction between two kinds of killings seems to have no basis in reality and robs courts from flexibility to find a just sentence. There are occasional attempts at reform, but none will be successful while CDU/CSU is part of the government.
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So, if I understand you correctly, you say that the leeway a court has just nullifies the fact that you are punished for being something, and you can in fact be punished twice for being the same thing? I know about this intention-being-part-of-the-crime thing, however I don't think that's relevant to the question. The question is: can you be punished twice for "being a murderer", since you can "achieve" the status of being a murderer only once. – Lukas Barth 7 hours ago
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@LukasBarth That would be easily answered by finding a single example of a person convicted twice for murder, such as Niels Högel (first result on google searching "german murderer convicted again"). – Giacomo Alzetta 7 hours ago
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@GiacomoAlzetta : As I wrote, I am well aware that people have been convicted multiple times, as for example Mr. Högel (who actually single-handedly skewed the German murder statistics so badly that right-wing parties tried to scream 'increasing murder rates!' and pin in on migrants, but I disgress). I was wondering how that works within the legal wording this paragraph provides. – Lukas Barth 6 hours ago
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This is actually why many in Numberg Trials said "I was just following orders". Under German Law, that is a valid argument against murder. (Un)fortunately for the Germans, they were being tried under UK/US Common Law, which doesn't give a damn about motivations, other than proving, whether it was planned out before the action, occurred in the heat of the moment, or was the result of negligence. Motive factors much more in the sentencing phase, which only happens if guilt is proven. Admitting that you were "following orders" means you did plan to murder before the deed happened. – hszmv 6 hours ago
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@LukasBarth The central point of my answer is that phrasing that article as “if you do A you get punished by B” doesn't work here because the article wants to make a distinction between different kinds of killings, and that this difference is assumed to lie within the person committing the murder rather than in the act. But the being-murderer still only relates to an act of killing. It cannot reasonably be interpreted to persistently label the perpetrator. Instead, a court will have to look at whether the perpetrator acted as a murderer in each individual killing. – amon 5 hours ago
The first line is “who kills a person”. That is clearly doing something. And the last three lines describe the motivation, not what you are. That’s very similar to “first degree” and “second degree” murder in the USA although the exact criteria are different - “planning” is not part of the German definition although any German murder is likely planned.
Note the first line: “The murderer”, not “a murderer”. It’s like saying the perpetrator”. You can become a murderer multiple times, like you can become a perpetrator multiple times. Therefore you can be punished multiple times. You are not punished for the fact you are a murderer, you are punished for the act of killing, and more severely punished for killing in a way that makes you a murderer.
Now if you spent 30 years in jail for murder, then get out and kill a person in a way that makes you merely a “Totschläger” (best translation is probably a second degree murderer), then although you are and will always be a murderer, you will not be treated as a murderer in the new case or automatically in any further killing.
While the law seems to imply that you are convicted for being a murderer at all, the actual wording is better translated as following. Emphasis is mine.
Section 211 Murder under specific aggravating circumstances [Mord]
(1) Whosoever commits murder [altnernate: "A murderer..."] under the conditions of this provision shall be liable to imprisonment for life.
(2) A murderer [=someone committing murder] under this provision is any person who kills a person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence.
Section 212 Murder [Totschlag]
(1) Whosoever kills a person without being a murderer under section 211 shall be convicted of murder and be liable to imprisonment of not less than five years.
(2) In especially serious cases the penalty shall be imprisonment for life.
Section 213 Murder under mitigating circumstances [Minder schwerer Fall des Totschlags]
If the murderer (under section 212) [=person committing murder] was provoked to rage by maltreatment in icted on him or a relative, or was seriously insulted by the victim and immediately lost self-control and committed the offence, or in the event of an otherwise less serious case, the penalty shall be imprisonment from one to ten years.
The actual wording is not "The murderer is punished with livelong imprisonment" but "committing the act of murder is punished with lifelong imprisonment. To commit murder in this way this has to be true...".
In the US, §211 would be basically analogous to "First degree murder" and "Second degree murder" together, §212 to voluntary manslaughter and §213 to involuntary manslaughter, defining variants of the crime, all relying on the definition that a murderer is a person that did commit the act of killing somebody as defined in §211(2)/§212(1) without the aggravating circumstances neccessary to fulfill §211(2). Not being a murderer is punished but committing the act of murder which makes the killer the murderer of the victim.
Because of this, let's design three cases:
Jonas Schmidt (~John Smith) loves to drive fast. He drives Janina Reh (~Jane Doe) over and she dies. He didn't commit "Mord" but "Totschlag" under §212, goes to jail for 5 years, then comes out... and does it again. Once more he goes into prison, comes out some years later and can still do it again!
Kain (~Cain) hates his brother Able after his bonfire had the smoke rise to the sky while his made a huge cloud on earth. So he goes and murders him in a back alley, gets caught and gets convicted for murder under §211 because hating somebody is a base motive. After average 18.6 years he leaves prison and has could go out his way and slay somebody else for having a better bonfire building skill, though this time the judge might want to lock him up for good by mandating "Sicherheitsverwahrung".
By the way, there are cases in Germany where a released murderer murdered again. 45 of these were collected in the book Mord im Rückfall: 45 Fallgeschichten über das Töten by Hans-Ludwig Kröber.
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Oh, that's interesting. Is that an "official" translation? I didn't know gesetze-im-internet.de (which is done by juris.de, I think) had English translations. As far as I can tell, the translation exactly ignores this quirk, that the German text (in this very paragraph) does not say that 'who does X in punished by Y' but 'Who does X is a murderer. Murderers are punished by Y'. – Lukas Barth 6 hours ago
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@LukasBarth there is no official translation, but it's the best translation, also note my notes in [] and emphasis. – Trish 6 hours ago
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1Hmm. The translation is factually correct but lacks the grammatical nuance that this question is about. It seems to blindly apply the “Whosoever does X shall be liable for Y” structure from the other sections, but that's a significant diversion from the German text. – amon 5 hours ago
