What does insidious distinction mean what

The manslaughter according to § 212 StGB

If you ask a legal layperson about the difference between murder and manslaughter, the most common answer is that murder is the targeted and manslaughter is the spontaneous killing of another person. This could be assumed, since the threatened imprisonment for murder is life, while for manslaughter it is five to fifteen years. At that time, however, the legislature had a different distinction in mind that has little to do with the differentiation that is widespread today. The "murderer" should be distinguished from the "manslaughter", as the perpetrators are called in the StGB, in that he commits the act in a more reprehensible manner through the type of commission or through his motives. But what makes the killing of a person manslaughter and what makes it murder? Attorney Dietrich, specialist lawyer for criminal law in Berlin Kreuzberg, gives you a brief overview of these extensive facts and their handling in practice. He will first answer the most important questions about manslaughter, aspects of sentencing and problem constellations:

How must the act be committed in order for it to be manslaughter?

Manslaughter is regulated in Section 212 of the Criminal Code and reads as follows: Anyone who kills a person without being a murderer is punished as a manslaughter with imprisonment for no less than five years.
The maximum amount of the sentence is fifteen years, so that the court has a range of five to fifteen years imprisonment that it can impose. If there is a particularly serious case of manslaughter, the court can impose a life sentence; in a less serious case, the penalty range is imprisonment of one to ten years. However, which punishment the court specifically determines depends on many factors, which will be discussed separately later.

How must the act be committed in order for it to be manslaughter?

To kill someone means to cause the death of another person in an objectively imputable manner. In contrast to murder, how death is brought about is irrelevant. It can be caused by physical influences, such as gunshots, blows, stabs, choking and drowning, as well as by psychological influence. The latter is assumed, for example, when the victim is given a lethal shock.

Any acceleration is sufficient to cause death, no matter how short-term it is. It also makes no difference whether the life of a healthy person is shortened or the dying process of an already sick person is accelerated. However, if the lifespan of a person is shortened by pain medication such as palliative medicine, this does not constitute homicide. The situation is different with active euthanasia, in which the helping act, such as the administration of medication, directly leads to death is directed.

Are you liable to manslaughter if you stop life-prolonging measures?

This question is particularly crucial for doctors, as their occupation means that they often run the risk of making homicide punishable by, for example, breaking off life-prolonging measures for a seriously ill patient or accelerating the onset of death. As already illustrated by the example of palliative medicine, the latter is in principle not punishable. The evaluation of the termination of further measures, however, is problematic. It always depends on the presumed will of the patient. If he had agreed, for example, to interrupt the feeding via a gastric tube, the attending physician would not make himself a criminal offense for manslaughter if the measure was interrupted. An indicator function that often provides information about the patient's will is the living will. The unilateral discontinuation of treatment by the doctor is, however, generally punishable.

What is the legal position if I help someone kill themselves?

The offense is only fulfilled when another person is killed. First of all, this implies that killing yourself is not a criminal offense. The same applies in principle to participation, i.e. any kind of assistance, in suicide. So if you get a seriously ill person pills so that he can kill himself, you are not making yourself liable to prosecution. However, the limit is reached when you induce someone to kill themselves. In such cases, the criminal liability for manslaughter by an indirect perpetrator comes into consideration, even if the act of killing was carried out by the person killed himself. It is important here that the indirectly acting person holds the events leading to death in his hand and that the person killed did not act on his own responsibility.

Can I commit homicide if I fail to take life-saving measures?

The killing of a person can be committed through active action as well as failure. There are two prerequisites for this: On the one hand, the agent must be a guarantor of the person killed. Case constellations for this are the starvation of a small child and the failure of the producer to prevent the mother from killing the child. Even if one has participated in a jointly committed physical injury or, as the cause of the accident, neglects possible and promising rescue measures in the event of the accident injury, this can lead to criminal liability for manslaughter by failure to do so. On the other hand, it is necessary to state that a significant contribution to saving people could have been made. This is assumed if the omitted act would have saved the life of the victim or at least not only slightly prolonged it. A life extension of a day or a few hours was considered sufficient by the case law, while a life extension of only a few minutes was classified as too small. Even the mere increase in life chances is not sufficient to justify criminal liability for manslaughter by omission.

What are the subjective requirements for making manslaughter a punishable offense?

In addition to the existence of the objective conditions, it is also decisive whether the death of someone else was caused intentionally or negligently. If one trusts in a mild outcome of the event, even if one has recognized the danger to life of the situation, then an intention to kill is to be rejected. However, there must be actual evidence that can make this trust in the absence of death comprehensible. Intentional killing, on the other hand, exists if one has recorded one's act as behavior suitable for killing and wants to bring about the death of another person as a result of this or at least accepts it approvingly.

These prerequisites are often problematic in the case of attacks in which the victim is repeatedly violated at intervals, but the attacks are not all carried out with the will of a fatal outcome. If it is positively established that the act that led to the victim's death was only carried out with intent to cause bodily harm, a conviction for manslaughter must be ruled out. This also applies if it cannot be clarified which action actually led to the death of the victim. In favor of the accused, it must then be assumed that the act carried out merely with intent to cause bodily harm has become the cause of the death of the victim. For both case constellations, criminal liability for bodily harm resulting in death and an attempted homicide are possible.

What is the legal situation if a person dies as a result of life-threatening violence? Is deliberate action assumed in these cases due to the danger?

The question arises again and again as to how the criminal liability for life-threatening acts of violence, such as kicks in the head, knife stabs in the trunk of a person, etc., is to be assessed. From a legal point of view, it is about the delimitation of negligence and intent, which plays an important role in determining the sentence. As already mentioned, manslaughter is punishable if you consider the death of someone else to be possible or at least not entirely remote and accept it approvingly. It is not assumed that you wish someone to die. Rather, it is sufficient if one acts and has come to terms with this possibility.

In practice, the assumption that someone has recognized the possibility that his victim could die as a result of life-threatening acts of violence usually does not present any difficulties. The objection that one did not think about the danger dimension of one's actions does not in principle contradict the assumption of the intention to kill, since it is not expected that the possible consequences of the crime will be deliberately reflected. Rather, it is sufficient if the agent was aware of the possibility of death according to general experience. This applies, for example, to knife wounds in the trunk or massive attacks on a person's neck and head, which everyone knows can be fatal. However, factors such as states of excitement or considerable alcoholism of the actor must be taken into account, as these often only make a realistic assessment of the situation possible to a limited extent.
In practice, it is more difficult to judge whether the death of the victim was accepted with approval due to the dangerous nature of the act. If it is not obvious that the life of the victim is highly endangered (as with the stab wounds in the trunk mentioned above), the case law warns to be certain of reluctance to accept the intent to kill. In order to be able to answer in the affirmative, the trial court must consider all possible circumstances which suggest that the agent did trust that the victim would not die. While the high objective danger of the action speaks in favor of the acceptance of an acceptable result in death, the affective and alcoholic influence of the actor, the spontaneity of the commission of the offense, life-saving activities and the shock of the offense must be assessed critically. The inspection of a place where there are many witnesses can also speak against the acceptance of the intention to kill. The negotiating court must first of all take sufficient account of all these aspects before it is allowed to pronounce a judgment on manslaughter.

If the EU or EEA driving license was issued after January 19, 2009, § 28 FeV applies to the assessment of criminal liability. According to this, holders of a valid EU or EEA driving license who are resident in Germany are allowed to drive a motor vehicle in Germany to the extent of their authorization. In addition, a driving license issued abroad that existed prior to criminal evasion no longer entitles you to drive a vehicle after the blocking period has expired.
If the driver's license issued in other European countries is not recognized in Germany, anyone who nevertheless drives a motor vehicle in Germany is liable to prosecution.
It should also be noted that if the driver's license is withdrawn and an associated lock-up period, the previously valid driver's license will not become valid again when the lock-up period expires. Rather, the competent authority must re-issue the driver's license.

In the area of ​​driving licenses that have been issued since January 19, 2009, however, the development of the case law of the ECJ continues to be decisive. So far, German courts have essentially decided to recognize a driver's license from other European countries if this was issued after a blocking period and the holder of the driver's license was domiciled in the country of issue at the time the driver's license was acquired. The answer to the question of how a bogus residence should be treated is not answered unanimously. Some courts tend to the fact that Germany in this constellation is no longer entitled to independently check the place of residence. The information provided by the issuing country is decisive.

How is the use of weapons or dangerous tools assessed in practice?

With the use of weapons and dangerous tools, the obvious danger to life of the action is a strong indication of an intent to kill. However, this is not a compelling reason for evidence, so that there are always delimitation difficulties.

When firing shots at a person, an intent to kill is usually assumed due to the high danger to life. In particular, if the shot is fired from a short distance on the head or upper body of the victim or if it is even a head shot, it can be concluded without problems that the killing was intentional. The assessment is different, however, if the shooter is able to fire a shot in a controlled manner and, for example, shoots specifically at the legs of a victim standing still. In this case, it can be assumed that the shooter probably had no intent to kill.

If the victim is attacked with a knife, the assumption of an intent to kill is at least reasonable when it comes to stitches in the neck, chest or stomach area. The more targeted and powerful the stitches performed, the more they conclude that the stitches were intended to kill. As a result, the trial court must also assess the overall circumstances and consider aspects such as the motives, behavior before and after the offense, as well as the spontaneity of the attack.

Should you expect a manslaughter conviction if you are kicked in the head?

Another, very practical problem arises in cases in which the victim is brought to the ground and then his head and upper body are massively kicked. These attacks are usually life-threatening, as they can lead to brain injuries and torn organs. Especially in situations in which the victim lies defenseless on the ground and moves around, it can almost be ruled out that the victim will be stepped on in a differentiated manner. This is even more true if the kicks last for a long time. The kicking person is then denied that he seriously trusts that he can only injure the victim and not kill him. In the case of such intense attacks, the on-site inspection in a drunk and emotionally aroused state is not considered to be premeditated by the courts. According to the practice of the courts, a conviction of manslaughter will therefore be the rule for massive kicks in the head.

How is the throwing of stones or objects from a motorway bridge assessed by the judiciary?

In the case law, stone throwing or comparable attacks on passing vehicles are rated as attempted or completed manslaughter. Because of the great dangers emanating from stone throwing for the motorists struck and the following traffic, it is assumed that the mortal danger for the person throwing objects can be recognized without further ado. Reliance on a sequence of events without consequences is viewed as remote because of the speed and density of traffic.In addition, the attack comes from an ambush and thus a moment of surprise is used systematically.

Am I liable to attempted manslaughter if, as an HIV-infected person, I have unprotected sexual intercourse and my sexual partner is unaware of the infection?

In recent years, the question has also arisen whether a person who knows about their HIV infection and continues to have unprotected sexual intercourse is punishable by the risk of infection from attempted manslaughter. Again, it depends on whether the infected person was aware of the risk of infection and its consequences and accepted it with approval, or whether he nevertheless trusted that the fatal AIDS disease that would later occur would not break out. In this case, the Federal Court of Justice ruled that the infection of someone else with the HIV virus merely constitutes dangerous bodily harm by means of treatment that endangers life. According to the case law, there is no intent to kill, among other things, because the infected person can hope that the AIDS disease will not break out due to the long incubation period and the medication that is possible nowadays.

When is attempted manslaughter a criminal offense and how does that affect the sentencing?

If a person is not killed by an attack, but is critically injured, the question often arises as to whether an attempted manslaughter has occurred. This also applies to situations in which the injury has not yet been successful at all, but there was a specific risk to the victim. If the perpetrator lies in wait for his victim to kill him, for example, but just misses it, an attempted manslaughter can be assumed.
If the manslaughter was only attempted, there is the possibility of a resignation exempting the penalty. On the one hand, this comes into consideration if the victim is first acted with intent to kill, but is then released from him. You have to stop for voluntary reasons. This does not include stopping out of fear of being discovered. On the other hand, a resignation exempt from punishment is also possible if the victim is acted upon with intent to kill and there is already a concrete mortal danger, but rescue measures are then taken to prevent death. It is crucial that all possibilities to rescue the injured person are exhausted, and help can also be obtained from third parties. However, when a human life is at stake, high demands must be placed on serious efforts to rescue it. Another situation in which resignation is also possible is when it is initially mistakenly assumed that the victim would die as a result of the stab wounds, but that this then shows no signs of a possibly fatal injury. The moment the person stabbing the person realizes this, he can still let go of his victim, with the result that he resigns from the attempted manslaughter without punishment. If there is no resignation, the court can mitigate the penalty for attempted manslaughter, but is not obliged to do so.

What does the court consider when determining the sentence and when is there a particularly serious or a less serious case of manslaughter?

In the case of manslaughter, the court can impose a prison sentence of between five and fifteen years. However, the specific punishment that is determined depends on many different circumstances. Goals and motivations for the act, nighttime behavior and personal circumstances all play a role. Gradations of value in life are not permitted. A tightening of the punishment due to the young age of the person killed is therefore not allowed. It is also inadmissible if a particular brutality of the act is taken into account in an aggravating manner, as long as it does not go beyond what is necessary to bring about the death.
On the other hand, no objection can be made if it is taken into account that the victim is repeatedly attacked for minutes in order to kill him. In this case, only conclusions are drawn about the criminal energy of the perpetrator, which can certainly be assessed as an aggravating penalty. For example, four stitches in the upper body and several minutes of gagging of the victim were not classified as massive attacks that went beyond what was necessary to kill. In addition, the intent to kill must not in itself have an aggravating effect. According to this, it must not make any difference in determining the sentence whether the death of a person was intentionally brought about or whether the person was merely resigned to it.
The fact that the killing of a person caused grief and emotional distress in the relatives or people close to the victim must not be taken into account as an aggravating penalty. Rather, the effects of such an act are usually always given, so that they must not be assessed to the disadvantage of the accused. This also applies in the event that after the offense the victim was not looked after and his death was not averted, although this would have been easily possible for the accused. This would accuse the accused of not having resigned from the court. Furthermore, the removal of traces of crime such as the burying or burning of the corpse is not a circumstance that increases the wrongdoing. Only in cases in which this is part of the elaborate crime plan, it may be taken into account in an aggravating manner from the point of view of criminal energy.

In a particularly serious case of manslaughter, the court can impose life imprisonment if the facts of the case correspond to a murder case. However, the fact that the circumstances are similar is not enough. Aspects that can be decisive for the assessment as a particularly serious case are, for example, the planning of the crime well in advance, the particularly brutal and cruel or execution-like killing of the victim, the execution of the crime itself and the circumstances surrounding it.

If it is a less serious case of manslaughter, then the scope of punishment according to Section 213 of the Criminal Code is shifted to imprisonment of one to ten years. A less serious case exists if the act was provoked by a previous insult or mistreatment by the person killed. The latter is the case, for example, in the case of a knife stab with no consequences for injury or an insult in the case of offense through adultery, as long as this is associated with humiliating circumstances. For the acceptance of the less severe case, however, a certain proportionality must be maintained. The provocation must therefore be so severe that the affect triggered by it can be understood. In addition to the provocation, the court can also accept a less serious case after an overall assessment of the offense and the perpetrator. An example of this can be an exceptional psychological situation of the mother who kills her child at or immediately after the birth.

I am faced with allegations of manslaughter. Do I need a defense attorney and what should I watch out for?

If it is a less serious case of manslaughter, then the scope of punishment according to § 213 StGB is shifted to imprisonment of one to ten years. A less serious case exists if the act was provoked by a previous insult or mistreatment by the person killed. The latter is the case, for example, in the case of a knife stab with no consequences for injury or an insult in the case of offense through adultery, as long as this is associated with humiliating circumstances. For the acceptance of the less severe case, however, a certain proportionality must be maintained. The provocation must therefore be so severe that the affect triggered by it can be understood. In addition to the provocation, the court can also accept a less serious case after an overall assessment of the offense and the perpetrator. An example of this can be an exceptional psychological situation of the mother who kills her child at or immediately after the birth.

Attorney Dietrich, who has many years of practical experience as a specialist lawyer for criminal law, is of course available at any time to discuss the legal aspects of your case with you.