Capital punishment in Germany

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Capital punishment was abolished in West Germany in 1949 and East Germany in 1987.

Legal position

The current Constitution of Germany ("Grundgesetz für die Bundesrepublik Deutschland"), which came into effect on 23rd May, 1949, forbids capital punishment. This ban is stated in

• article 102 GG: "Die Todesstrafe ist abgeschafft" - Capital punishment is abolished.

It is debated among constitutional jurists whether article 2 section 2 GG – "Jeder hat das Recht auf Leben und körperliche Unversehrtheit" (Every person shall have the right to life and physical integrity) or indeed human dignity itself (article 1 section 1 GG) forbids capital punishment; the latter is mentioned by the German wikipedia as reigning opinion, but seems inconsistent with the fact that article 2 allows exceptions by formal law and, in section 1, similarly guarantees personal freedom (without outlawing prisons).^[1]

The Penal Code was formally^[2] amended in 1951 to conform to the abolition. Previous death penalty was replaced by life imprisonment. As the constitution requires that prisoners have a chance of regaining freedom with other means than extralegal pardon only^[3], prisoners are checked for release on parole after 15 years for regular intervals. Since the introduction of this provision, courts may in extreme cases declare special gravity of guilt which is meant and popularized as kind of life without parole^[4].

Although article 21.1 of the constitution of the German state of Hesse provides capital punishment for high crimes, this provision is inoperative due to the federal ban on the death penalty ("Bundesrecht bricht Landesrecht" - Federal law overrides state law^[5]). The Bavarian Constitution, while not providing death penalty by itself, long time contained a rule of implementation of it^[6] which was abrogated in a summary constitutional amendment in 1998.

History

If the failed German constitution drafted by the Frankfurt Parliament in 1849 had come into force, capital punishment would have been abolished in most cases, since Art. III § 139 of the constitution stated: "Die Todesstrafe, ausgenommen wo das Kriegsrecht sie vorschreibt, oder das Seerecht im Fall von Meutereien sie zuläßt, [...], [ist] abgeschafft" ("Capital punishment, except when it is prescribed by martial law or permitted by the law of the seas in cases of mutiny, [...] [is] abolished"). The German Empire quite liberally inflicted the death penalty for some forms of 1. high treason and for 2. murder which was then defined as killing with premeditation; only murder and attempted murder of one's souvereign was capital treason.^[7] Under military law, in case of a war only, some other particularly listed forms of 3. treason, some cases of 4. wrongful surrender, 5. desertion in the field in case of relapse, if the previous desertion also had taken place in the field, 6. cowardice if it led to a flight with enticing one's comrades to flight, 7. explicit disobeying an order by word or deed in the face of the enemy, 8. sedition in the face of the enemy, or in the field (only) if done as a ringleader or instigator, or with violence as a leading man.^[8] During the German empire 1871-1918, the legal methods were guillotine for civilian crimes and firing squad for military crimes. The Weimar Republic retained death penalty for murder, and several murderers were guillotined.

As to the National Socialists, the leading Nazi jurist Hans Frank^[9] boasted at the 1934 Reichsparteitag of “reckless implementation of the death penalty” as a special acquisition of the Nazi regime. Under Hitler nearly 40,000 death sentences were handed down, mainly by the Volksgerichtshof and also by the Reich Military Tribunal. Executions were carried out most often by beheading using the guillotine although from 1942 on hanging by using the short-drop method became also common. A firing squad was reserved for military offenders.

Additional forms declared treason could (in some cases, especially for soldiers, mandatorily) be prosecuted with death, as could grave arson^[10], aiding and abetting treason, betraying a secret (mandatorily), procuring a secret for the sake of betraying it, insidious publishing or rhetoric, failure to denounce a capital crime, destroying means for military use, sabotage (mandatorily for soldiers), kidnapping (mandatorily)^[11], compassing or imagining the death of a NS or state official for political reasons or the reason of their service^[12], setting a car trap for the means of robbery (mandatorily), espionage (mandatorily), partisanry (mandatorily), all cases of desertion, subversion of military strength (mandatorily except for minor cases)^[13], looting (mandatorily even in cases of smallest amounts), arson which damages the power of defense of the people, crime during danger resulting from enemy aviation (in grave cases), taking advantage of the state of war whilst committing a crime ("if the sound feeling of the people so requires"), publishing foreign radio broadcasts, etc. The definition of murder was changed and, in practice, extended to the rather vague definition still in force, but now only with life imprisonment. This list is by no means exhaustive, even where laws and decrees are concerned. As an addition to crimes declared capital by law or decree, a "dangerous habitual criminal" or one convicted of rape could be executed "if the protection of the people or the need for just atonement so demands" ^[14], courts (or whatever was in place of a court) sometimes were officially granted the right to inflict the death penalty even where not provided by law, and sometimes did so by their own discretion. Many of the crimes covered a wide and unpredictable range of actions, such as treason, "sabotage" (Kriegsverrat, which was any action pandering the enemy) and subversion of the military strength, which could be interpreted as to cover any critical remark, and even though even it did clearly not cover it was applied to execute any conscientous objector. To quote Hitler, "after ten years of hard prison, a man is lost to the people's community anyway. Thus what to do with such a guy is either put him into a concentration camp, or kill him. In latest times the latter is more important, for the sake of deterrence."^[15]

According to Manfred Messerschmidt^[16], "from 1907 to 1932," i. e. including World War I, "Germany had issued 1547 death warrants, of which 393 were executed. Wehrmacht courts on the other hand issued, conservatively estimated, 25000 death warrants, of which 18000 to 20000 were executed." According to official statistics^[17], other courts had altogether issued 16560 death warrants (whereof 664 before the war), of which about 12000 were executed. In fighting partisans, 345000 are reported to have been killed, of which less than 10 % may have been partisans.^[18] This, however, should not obscure the fact that not only the National Socialist legal system was tyrannical (especially also with the protective custody, to be inflicted at the Gestapo's arbitration and to be fulfilled in a concentration camp), but this law also was broken to the detriment of those persecuted or opposing. A concentration camp commander could as early as in 1933 inflict the "death penalty" for disobedience, i. e. order to murder a disobedient, without any legal ground whatsoever besides the will of Heinrich Himmler, but also without meeting opposition. Bl. Bishop Clemens of Münster correctly saw himself legally obliged to denounce to the criminal police those responsible for the Action T4, i. e. the killing of the handicapped, for murder (then: killing with premeditation); likewise, no law even of the Nazis allowed extermination through work, and genocidal mass murder, as in the case of the Holocaust.

The ban on the death penalty, as imposed by the German constitution in 1949, however was a reaction not to its extensive use under the Third Reich, but to the execution of convicted Nazi war criminals by the International War Crimes Tribunal.^[19]

The last executions that took place on what would become West German soil were those of the rothose following the influence of Third Reich officials and World War II war criminals recently captured, however including some other criminals, with Richard Schuh (murder and robbery) being the last in the Western Zones under German authority (February 18, 1949), and Berthold Wehmeyer (murder, rape and robbery) the last in West Berlin (May 12, 1949). Despite the newly-founded Federal Republic's protests, the Western Allied powers continued for some time to inflict the death penalty in their separate jurisdiction, the last war criminals being executed on June 7, 1951 in the Landsberg prison. Some "criminal actions against the Allied Occupating Powers' interests" remained capital in West Berlin, being under Allied jurisdiction without complete force of the Basic Law, until 1990; this provision was not carried out.

East Germany abolished the death penalty in 1987. The last execution in East Germany is believed to have been the shooting of Werner Teske, convicted for treason, in 1981; the last execution of a civilian (after 1970, capital punishment was rare and almost exclusively for espionage) was Erwin Hagedorn, for sexually motivated child murder. By then, GDR courts had inflicted the death penalty in 227 cases. 166 were executed, of which 52 for assumedly political crimes (espionage, sabotage etc.), 64 for crimes under Hitler's rule and 44 for common criminality (mostly, murder). The guillotine was replaced by an unexpected shot at close range in 1966. – The GDR was notable for its secrecy about its executions, even when the death warrants had been issued in show trials; death certificates mostly noted but "heart failure".^[20]

See also

• Blutgericht
• Constitutio Criminalis Carolina

References

1. ^ The difference is that an amendment of art. 102 "only" requires a two-thirds majority; an amendment of article 2 has the additional psychological barrier of removing a basic right; an amendment of what human dignity guarantees is impossible at all (see article 79 GG. Article 102, according to its systematical place, does not guarantee a basic right but enacts a judiciary restriction. That a position obviously not contained in the Basic Law, viz. that capital punishment be a violation of human dignity instead of "only" constitutionally forbidden, has come to be a reigning opinion can be explained by aversion against the death penalty.
2. ^ This did not lead to a change of the law-as-in-force itself, which had immediately taken place with the enactment of the Basic Law.
3. ^ as ruled by the Federal Constitutional Court in BVerfGE 45,147 in 1977.
4. ^ though some realistic hope for regaining freedom must still be guaranteed.
5. ^ article 31 GG. It would, of course, also be inactive due to lack of an implementing penal law today.
6. ^ The execution of capital punishment requires previous confirmation by the government, article 47 IV 2 (old form) of the Bavarian Constitution.
7. ^ § 80, 211 StGB 1871. Souvereign was not only the Emperor, but also the Prince of both one's own State and the State of momentary sojourn.
8. ^ Militär-Strafgesetzbuch für das Deutsche Reich (MStGB)
9. ^ Minister for Justice was Franz Gürtner, originally from the conservative coalition partner DNVP. Hans Frank was then President of the Academy for German Law, and Minister without Portfolio; later he would become Governor in Poland.
10. ^ as enacted by the Reichstag Fire Decree. A further law, the Lex van der Lubbe, provided restrospective application so that Marinus van der Lubbe could be "executed" or, rather, murdered.
11. ^ cf. the respective forms of the StGB
12. ^ Law for the upholding of the legal peace, § 1.
13. ^ Kriegssonderstrafrechtsverordnung
14. ^ Law of 1941 for the amendment of the Penal Code, § 1
15. ^ as in: Richard J. Evans: Rituale der Vergeltung. Berlin 2001, S. 828
16. ^ Manfred Messerschmidt, Die Wehrmachtjustiz 1933-1945, [1].
17. ^ As reported on the German wikipedia]
18. ^ Wolfgang Curilla: Die deutsche Ordnungspolizei und der Holocaust im Baltikum und Weißrussland 1941-1944, Paderborn 2006, S. 742.
19. ^ source
20. ^ According to the German wikipedia, Hagedorn's execution was an exception.

• Grundgesetz für die Bundesrepublik Deutschland 29.7.2009
• Basic Law for the Federal Republic of Germany (Official english translation Stand 22.09.09)