The German Justice Ministry is determined correct the definition of murder in the Criminal Code, because it was drawn up by one of the Third Reich’s most notorious judges. But conservative parties don’t see the point.
German Justice Minister Heiko Maas has some heavy reading for his summer vacation. A commission of law professors, lawyers, and public prosecutors this week filed a 909-page report on reforming the definition and punishment of murder in the German Criminal Code. Maas’ aim is to present a bill to the German parliament while he still can – that is, by the end of this legislative period in 2017.
The minister’s initiative is an attempt to draw a line under a debate that has bedeviled German jurists for decades – specifically around Paragraph 211, which was defined in 1941 by Roland Freisler (pictured center above), state secretary in the Justice Ministry under Adolf Hitler, and later president of the notorious People’s Court, a special court established by the Nazis to operate outside the constitution.
The paragraph defines a murderer, rather than the crime itself, and in an attempt to draw a distinction to a manslaughterer, rules that he or she is someone who “insidiously and cruelly kills a human being out of bloodlust, to satisfy a sexual appetite, out of avarice, or out of any other low motivation.”
This kind of terminology no longer squares with a modern criminal law. “The idea behind it is that the individual is already born as a murderer,” said Christoph Safferling, an Erlangen law professor who sat on the commission. “It’s a question of genetics and socialization of the character – the person is a murderer – and that is typical of National Socialism. It’s this distinction between people who belong to the community and those one removes.”
This was a key statement for Maas, who said in a statement welcoming the report, “We want a modern law that is free of the language of the Nazis. For that reason we gratefully accept the recommendations on reforming the current terminology which are aimed at a type of criminal.”
Alexander Ignor, a Berlin-based lawyer who was also on the expert’s panel, pointed out that the paragraph in question also contains notions that have troubled jurists for some time. “It contains several problematic notes – that is especially true of the murder definition of insidiousness, and the ‘low motivations,’ it also controversial whether that’s a usable legal term,” he told DW.
But the proposed reforms are not merely about purging the law of Nazi associations. “You don’t need a commission to work on something for a year to do that,” said law professor Reinhard Merkel. Another problem in current German law is that a murder conviction gives judges no room to mitigate sentences – if someone is found guilty of murder, the only possible sentence is life imprisonment.
“The judge can’t regulate the framework of the sentence,” Ignor said. “And that has led to odd decisions where certain features of murder are denied, so that you can get a manslaughter conviction instead and you can regulate the sentence.”
In other words, German courts have often found themselves looking for ways out of a murder conviction so that they can find a fairer punishment – and these have not always been as legally sound as many would have liked. For that reason, the commission has proposed an amendment to paragraph 211 stating that in cases where there are significant mitigating circumstances, judges can hand down a limited sentence rather than a life sentence.
“There was a Turkish couple, and a relation of the family had raped the wife,” said Dieter Dölling, a Heidelberg law professor who also co-authored the report. “He then made fun of the husband, who killed the man in a bar, in a situation where the victim could not expect an attack. The reform was intended for cases like this.”
No reason to change
Given that this state of affairs has existed for over 70 years, why has it taken so long for lawmakers and lawyers to come up with an alternative? “Lawmakers have always been cautious about this, because it goes to the core of criminal law,” Dölling said. “There was always the concern, ‘If we change something there, it might be misunderstood as an attempt to undo the protections of criminal law.”
Indeed, Maas has already had cold water poured on his initiative by the Christian Democratic Union, the leading government party in Germany. “When I see in these days what horrific dimensions terrorist violence has taken on, I think we have some more important questions to resolve,” Thomas Strobl, the CDU’s deputy parliamentary faction leader told “Die Welt” newspaper. Against the backdrop of new Islamist violence, “questioning the term ‘murderer’ could be the wrong signal.”
“Well of course the Ukraine conflict and the Syrian conflict are more important,” countered Safferling. “But the current state of affairs created problems, not just in terminology – there’s no reason not to change that. Why should you leave a bad law?”