Murder in German law

Under the German penal code, Strafgesetzbuch, there are two sections relating to murder:

For Mord the penalty is lifelong imprisonment - although usually suspended after 17–18 years.

The current form of § 211 StGB was created in the year 1941. Before that the differentiation between Mord (murder) and Totschlag (killing) was, that Mord was killing "with consideration" ("mit Überlegung" and Totschlag without (StGB 1871-1941). Before 1871 there was no united German state and therefore no common penal code. Many German states defined Mord (murder) as killing "with premeditation" and Totschlag without—similar to other continental European countries (today for example the Netherlands). Consideration is similar though not same as premeditation. While premeditation only means that there was aforethought or a plan, consideration was defined as a psychological state of mind, in which the criminal is consciously weighing the motives for and against the crime. Under this concept felony murder that wasn't planned in advance or at least taken into account in advance by the criminal could not be considered Mord under German law (also premeditation would not allow that). Those were only punished as a severe case of manslaughter (Totschlag). Furthermore, there were disputes when and how the consideration should have taken place—before the crime, while committing the crime, e.g. Therefore this differentiation was considered too vague. The reform was oriented on discussions for the reform of the Swiss StGB, which also had the same differentiation. It took over the idea and mainly also the wording of the reform commission for the Swiss StGB headed by Carl Stoss in 1896. Also the new differentiation between Mord and Totschlag contains problems. This led to ongoing discussions in the legal community about the wording, the interpretation and also about a reform of the law. There are especially disputes about the question when a motive is to be considered as a base motive and when it should be considered as treacherous (or "by stealth").

If the victim of a killing earnestly wanted to be killed (for example, when suffering an incurable disease) the crime would be Tötung auf Verlangen (killing on demand, § 216 StGB ) which would result in 6 months to 5 years in prison (usually suspended) – basically, mercy killing. It however requires that the perpetrator was—solely or mainly—motivated by this demand. In 2002, there was a cannibal case in which the offender, Armin Meiwes, claimed that the victim wanted to be killed. The court convicted him of "Totschlag", since they didn't see the qualifications of a murder. Both prosecution and defense appealed, the prosecution in order to reach a guilty of murder verdict, the defense in order to reduce the charge to killing on demand. The German "Bundesgerichtshof", the highest German court of appeal, eventually convicted him of murder because, while the victim did want to be killed, there was still the base motive of cannibalism.

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