For the third time since 20012, the Federal Court of Justice has interpreted "killing without obvious reason" as murder out of "morally corrupt motives" ("Mord aus niedrigen Beweggründen") pursuant to Section 211 (2) First category, Fourth variant of the German Criminal Code (Strafgesetzbuch, abbr. StGB), with the result that this offence attracts a mandatory life sentence. This judgement raises fundamental questions with respect to the overall system of German homicide.
The facts of the case involve a man who inexplicably killed an unknown female jogger who was passing by in the woods. The victim was killed by powerful stabs to the chest and the back3. In December 2004, the Koblenz Regional Court found the accused guilty of Totschlag (manslaughter) pursuant to Section 212 of the German Criminal Code and sentenced him to imprisonment for ten years and six months.4 The appeal to the Federal Court of Justice, lodged by the prosecution, complained about the conviction of Totschlag (instead of Mord, i. e. murder) and the more lenient sentence which Totschlag attracts. On July 13th 2005, the Second Criminal Senate of the Federal Court of Justice reversed the sentence on the ground of insufficient legal arguments and referred the case back for reconsideration.5 Because the motivation for this outrageous crime was not clear, the court of first instance concluded that the crime was a spontaneous act of violence, thereby permitting the lighter sentencing appropriate for a manslaughter conviction6. Rejecting this analysis, the Federal Court of Justice found the crime more appropriately addressed as a murder.7
The underlying legal controversy arises out of the unique system of offenses the German Criminal Code contains with regard to homicide.8 German criminal law distinguishes generally between two types of intentional homicide: Mord (murder) according to Section 211 of the German Criminal Code and Totschlag (intentional manslaughter) according to Section 212 of the German Criminal Code. Section 211 requires for a conviction for murder that the intentional killing of another person is aggravated under a closed list of circumstances spelled out in that provision, amongst which "morally corrupt motives" such as murderous lust, sexual desire, or greed figure prominently.9 A blanket clause provides the same for "otherwise base morally corrupt motives" ("sonstige niedrige Beweggründe"),10 which are not further described in the German Criminal Code, leaving it to the courts to elaborate that e.g. racial hatred is such a base motive.11 Because murder attracts a mandatory life sentence12, morally corrupt motives, and especially innominated morally corrupt motives must be applied restrictively.13 Commonly, such motives must be both morally ("sittlich auf tiefster Stufe stehend") and socially contemptible ("sozial verachtenswert").14
At first sight, "killing without obvious reason" undoubtedly is both morally and socially contemptible. As the Second Senate emphasizes, the delinquent attempts to "rule over life and death of another person"15. At least substantially, it is therefore appropriate to interpret "killing without obvious reason" generally as murder out of "(otherwise base) morally corrupt motives", according to Section 211 (2) First category, Fourth variant of the German Criminal Code16. Nevertheless, this interpretation by the Federal Court of Justice gives rise to objections on both semantic and systematic grounds. Semantically, "killing without obvious reason" is determined by the absence of motive, therefore killing without obvious reason, i. e. without motive, cannot be identified with otherwise base morally corrupt motives according to Section 211 (2) First category, Fourth variant of the German Criminal Code.17 Systematically the expansion of otherwise base morally corrupt motives conflicts with the German legally codified system of homicide. Manslaughter (Section 212 of the German Criminal Code) means the willful killing of another person. In contrast to this, murder (Section 211 of the German Criminal Code) with its substantially graver sanction requires more serious conditions than those covered by Section 211 (2) of the German Criminal Code. Those conditions ensure that both wrong and guilt are are substantially greater for murder than they are for homicide, and therefore they must be ascertained positively.18 Otherwise manslaughter would only be relevant when the perpetrator had an "obvious" reason for killing, thus leading to an expansion of murder and the life sentence which it attracts.19
The case can be read as reflecting a current tendency within the Court towards a tougher line on punishment, in the present case by enlarging the scope of homicides which attract a life sentence.20 But, despite of the serious punishment, the decisive distinction between Mord with its mandatory life sentence and Totschlag with a sentence between five and fifteen years of imprisonment remains unclear.21 Hitherto, it was generally agreed in the literature that, especially in view of its serious consequences in terms of life-long imprisonment, the existence of a case of "otherwise base morally corrupt motives" has to be positively proven22. By contrast, the Federal Court of Justice considers the possibility of murder out of "otherwise base morally corrupt motives", although it did not positively find the defendant’s action as being driven by morally corrupt motives as previously established in the Court’s jurisprudence. Limiting its scope of investigation into the defendant’s motivation, the Court recognises "no obvious reason" as a sufficient basis for conviction under Section 211 of the German Criminal Code.23 Indeed, the Court thereby entirely bypasses the distinction provided by the law between individually listed examples of motives as put down in Section 211 (2), and the general clause in Section 211 (2) First category, Fourth variant of the German Criminal Code. In consequence, the Court blurs the long established distinction between general "morally corrupt motives" (which do not suffice for a verdict of murder) and those "otherwise base morally corrupt motives" which are equivalent to the particular base motives listed in Section 211 (2). This can be seen as a violation of the fundamental principle that punishment must be commensurate with guilt ("Schuldgrundsatz"). This principle requires that individual responsibility" ("individuelle Vorwerfbarkeit") has to be proven.24 This, in turn, has the most serious consequences for the possibilities of defence open to the accused, because there is now a much greater and indeed unpredictable chance of conviction. If the defendant remains silent, a court, relying on the recent judgments of the Federal Court of Justice, could find "no obvious reason" and convict for murder. If, on the other hand, the defendant states his or her motives, the Court could use the same extended interpretation of "otherwise base morally corrupt motives" to convict for murder on the ground of those stated motives.25 The tragic dilemma consists of the defendant now being pushed to make declarations in order to erode any basis of the Court’s finding "no obvious reason", while - by making the declaration - his or her disclosed motives can make his conviction for "otherwise base morally corrupt motives" more likely. Promoting this pressure to confess is a violation to the right of the accused to remain silent and not to incriminate himself or herself.26 As a further, systemic consequence, the German system of homicide will become blurred. There is a serious danger that Mord (murder, Section 211 of the German Criminal Code) will become the dominating type of homicide, thus largely superseding intentional manslaughter under Section 212 of the German Criminal Code.27
* Sascha Ziemann is Research Assistant at the Institute of Criminal Law and Philosophy of Law at the Johann Wolfgang Goethe-University Frankfurt/Main. E-Mail: S.Ziemann(at)jur.uni-frankfurt.de
1 Federal Court of Justice (Bundesgerichtshof, short: BGH), 13.07.2005 - 2 StR 236/05, published in: Neue Zeitschrift für Strafrecht, Rechtsprechungsreport (abbr. NStZ-RR), 2005, pp. 309 f.
2 After the 2004-case (BGH 17.08.2004, published in: NStZ-RR 2004, pp. 332 f.) and the 2001-case (BGH, 19.10.2001, in: Neue Juristische Wochenschrift [abbr. NJW] 2002, 382 ff.; also published in: StV 2003, pp. 19 f. with comment by Frank Saliger, Niedriger Beweggrund bei grundloser Tötung? at 38 ff.; further comment by Ulfrid Neumann, in: Juristische Rundschau [abbr. JR] 2002, pp. 471 ff., Harro Otto, in: Juristenzeitung 2002, pp. 567 and by Sascha Ziemann, Report - Bundesgerichtshof in Strafsachen (Federal Court of Justice, Criminal Law) 2000/01, in: Russell Miller & Peer Zumbansen (eds.), 1 The Annual Of German & European Law (2004), pp. 457 ff., at 461-463).
3 For details see BGH NStZ-RR 2005, (supra note 1), at 309.
4 Koblenz Regional Court (Landgericht Koblenz), 13.12.2004, Reg. No. 2080 Js 029795/04 - 3 Ks.
5 BGH NStZ-RR 2005, (supra note 1), at 310.
6 Section 212 provides a range of Punishment from five to 15 years. Note that Section 212 (2) also allows life-long imprisonment in especially serious cases ("besonders schwere Fälle"). Cf. Ulfrid Neumann, in: Urs Kindhäuser / Ulfrid Neumann / Hans-Ulrich Paeffgen (eds.), Nomos-Kommentar zum Strafgesetzbuch, 2nd. ed., Baden-Baden: Nomos, 2005, Section 212 StGB, marginal number 42 f.
7 By killing "treacherously" (heimtückisch) and killing out of "otherwise base morally corrupt motives" (sonstige niedrige Beweggründe). See BGH NStZ-RR 2005, (supra note 1), at 309 f. The following text focuses on the second issue. Although the criteria of killing "treacherously" is in dispute as well. For details see Neumann, Nomos-Kommentar (supra note 6), Section 211 StGB marg. num. 46 ff.
8 See Neumann, Nomos-Kommentar (supra note 6), Before Section 211 StGB, marg. num. 136 ff.
9 Section 211 (2) first category StGB, the so-called "niedrige Beweggründe". Section 211 (2) reads: „A murderer is, whoever kills a human being out of murderous lust, to satisfy his sexual desires, from greed or otherwise base motives [i. e. First category of overall three, addition by Author], treacherously or cruelly or with means dangerous to the public or in order to make another crime possible or cover it up." Unofficial translation by the German Federal Ministry of Justice (emphasis by Author). For details see Neumann, Nomos-Kommentar (supra note 6), Section 211 StGB marg. num. 6 ff.
10 See Section 211 (2) first category, fourth variant StGB, the so-called "sonstige niedrige Beweggründe" (emphasis by Author). Note that the first category of Section 211 (2) StGB contains four variants of "morally corrupt motives". Cf. Neumann, Nomos-Kommentar (supra note 6), Section 211 StGB marg. num. 26 ff.
11 For details see Neumann, Nomos-Kommentar (supra note 6), Section 211 StGB marg. num. 33 ff.
12 Life-long imprisonment is in fact the heaviest punishment possible in German criminal law.
13 See Neumann, Nomos-Kommentar (supra note 6), Before Section 211 StGB marg. num. 144 ff.
14 See e. g. BGH, Entscheidungen des Bundesgerichtshofs in Strafsachen, vol. 2 p. 63; for further details see Burkhard Jähnke, in: Leipziger Kommentar zum Strafgesetzbuch, 11th. ed., Berlin: de Gruyter, Editing status: Nov. 2001, Section 211 marg. num. 23 ff.
15 BGH, NStZ-RR 2005, (supra note 1), at 310.
16 BGH, NStZ-RR 2005, (supra note 1), at 310 in explicit conformity with the 2001-judgment (BGH, NJW 2002, [supra note 2], at 383); see also BGH, NStZ-RR 2004, (supra note 2), at 333.
17 Neumann, Nomos-Kommentar (supra note 6), Section 211 StGB marg. num. 42; see also Saliger, StV 2003 (supra note 2), at 40 discussing a similar case out of 2001 (BGH NJW 2002 [supra note 2] at 382 ff.). - A different approach is performed in Switzerland by focusing on the unscrupulousness ("Skrupellosigkeit") of the killing (cf. Art. 112 Swiss Criminal Code). See Gunther Arzt / Ulrich Weber, Strafrecht. Besonderer Teil. Lehrbuch, Bielefeld: Gieseking, 2000, Section 2 marg. num. 71 with note 112.
18 The systematic relationship between Mord (Murder) and Totschlag (Manslaughter) is disputable. For further details, see Neumann, Nomos-Kommentar (supra note 6), Before Section 211 StGB marg. num. 141 ff.
19 Referring to the 2001 case, see Saliger, StV 2003 (supra note 2), at 41.
20 BGH NStZ-RR 2005, (supra note 1), at 310; see also BGH NStZ-RR 2004, (supra note 2), at 333 and BGH, NJW 2002, (supra note 2), at 383.
21 Section 211 (Murder) and Section 212 (Manslaughter) StGB.
22 See e. g. Jähnke, Leipziger Kommentar (supra note 14), Section 211 marg. num. 30.
23 BGH NStZ-RR 2005, (supra note 1), at 310.
24 Saliger, StV 2003 (supra note 2), at 41. For the principle of culpability see Nigel Foster & Satish Sule, German Legal System and Laws, 3rd. ed., Oxford: Oxford University Press, 2002, pp. 299 f.
25 Cf. Saliger, StV 2003 (supra note 2), at 41 referring to the 2001-judgment.
26 Verbalized by the Latin maxim nemo tenetur se ipsum accusare. The right to remain silent is part of the fair trial principle in Criminal procedure, see Federal Constitutional Court (Bundesverfassungsgericht), 13.01.1981, published in: NJW 1981, pp. 1431 ff.
27 Saliger, StV 2003 (supra note 2), at 41.
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