criminal-law germany murder
Can you be convicted for being a murderer twice?
<p>Germany has this weird specialty¹ 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 (“<a href="https://www.gesetze-im-internet.de/stgb/__211.html" rel="noreferrer">Strafgesetzbuch § 211</a>”) reads²:</p>

<blockquote>
  <ol>
  <li><p>The murderer is punished with lifelong imprisonment.</p></li>
  <li><p>A murderer is, who kills a person</p>
  
  <ul>
  <li><p>motivated by the lust to murder, to satisfy sexual desire, because of greed, or of other nether motives,</p></li>
  <li><p>in a perfidious or gruesome way or with means dangerous to the public safety or</p></li>
  <li><p>to facilitate or hide another crime.</p></li>
  </ul></li>
  </ol>
</blockquote>

<p>Now, don't get held up by the conditions in Sentence 2. The important point here is that a person is being punished for <em>being</em> something (namely a murderer), not <em>doing</em> something.
It is worth noting that <em>lifelong imprisonment</em> in Germany usually means something like thirty years. So it's perfectly possible to murder somebody, go to prison, get out, murder somebody else.</p>

<p>However, at the point of the second murder <em>you are already a murderer</em>, for which you already have been punished. The paragraph says that you are being punished for <em>being</em> 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?</p>

<hr>

<p>¹ Which has been subject to a lot of discussion, especially since it stems from Germany's Nazi times…</p>

<p>² Translation is mine, and I'm not a law person, so take it with a grain of salt.</p>

<p>Murder is one of the few cases where the <em>intention</em> and not just the <em>act</em> is relevant. The act – killing a person – is the same for <em>Mord</em> and <em>Totschlag</em>, whereas <em>fahrlässige Tötung</em> 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.</p>

<p>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.</p>

<p>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.</p>

<p>The first line is “who kills a person”. That is clearly <em>doing</em> 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. </p>

<p>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. </p>

<p>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. </p>

<p>While the law seems to imply that you are convicted for <em>being</em> a murderer at all, the actual wording is better <a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1808" rel="nofollow noreferrer">translated as following</a>. Emphasis is mine.</p>

<blockquote>
  <p>Section 211
  Murder under specific aggravating circumstances [Mord]</p>
  
  <p>(1) <em>Whosoever commits murder</em> [altnernate: "A murderer..."] under the conditions of this provision shall be liable to imprisonment for life.</p>
  
  <p>(2) A murderer [=someone committing murder] under this provision is <strong>any person who kills a person</strong> 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.</p>
  
  <p>Section 212
  Murder [Totschlag]</p>
  
  <p>(1) <strong>Whosoever kills a person</strong> without being a murderer under section 211 shall be <strong>convicted of murder</strong> and be liable to imprisonment of not less than five years.</p>
  
  <p>(2) In especially serious cases the penalty shall be imprisonment for life.</p>
  
  <p>Section 213
  Murder under mitigating circumstances [Minder schwerer Fall des Totschlags]</p>
  
  <p>If the murderer <strong>(under section 212)</strong> [=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.</p>
</blockquote>

<p>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...".</p>

<p>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 <strong>being a murderer</strong> is punished but <strong>committing the act of murder</strong> which makes the killer the murderer of the victim.</p>

<p>Because of this, let's design three cases:</p>

<p>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, driving over another person. Once more he goes into prison, comes out some years later and could arguably do another act of Totschlag! Though it's likely he'll lose his driver's license.</p>

<p>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 <a href="https://www.waz.de/politik/lebenslang-bedeutet-in-nrw-durchschnittlich-18-6-jahre-id215479923.html" rel="nofollow noreferrer">average 18.6 years</a> 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" (the meaning of this is "lockup after the term is served for the safety of society").</p>

<p>By the way, there are cases in Germany where <a href="https://www.spiegel.de/wissenschaft/mensch/psychologie-warum-verurteilte-moerder-erneut-toeten-a-1264451.html" rel="nofollow noreferrer">a released murderer murdered again.</a> 45 of these were collected in the book <em>Mord im Rückfall: 45 Fallgeschichten über das Töten</em> by Hans-Ludwig Kröber.</p>

<h2>You can be convicted twice for being the murderer in two different cases</h2>

<p>As in "You are the murderer in this case" in the same spirit as "he is the victim" - which is not a general statement of this person having a victim-like property, but a shorthand description of his <em>role</em> in this case, like another person having the role of "the murderer" in this case, whereas he can at the same time be "the victim" of another case, where someone else was the perpetrator (e.g. someone enticed the murderer to act).</p>

<p>This is a language which is similarly found in many other law-related texts. Examples "the victim has to be compensated", "the guilty party must pay a fine of..." all of them are universally understood as being a shorthand definition for a person doing something/having a certain role in the current case.</p>

<p>This can be seen in the usage of a definitive particle "der". The text does not state "A murderer is punished...." but "the murderer is is punished" - where the "the" indicates the text is not to be understood as "any person who qualifies as a murderer", but instead as <strong>"the murder aka. person which we are currently talking about"</strong> so the term "the murderer" is used as if the paragraph had an explicit preamble "The person who kills someone, henceford just called 'the murderer'"</p>
