Capital punishment in Germany

Capital punishment is prohibited in Germany by constitution. It was abolished in West Germany in 1949 and East Germany in 1987. The last person executed in Germany was the East German Werner Teske, killed in an East German prison in Leipzig in 1981.

The current Constitution of Germany ("Grundgesetz für die Bundesrepublik Deutschland"), which came into effect on 23 May 1949, forbids capital punishment. This ban is stated in article 102 GG: "Die Todesstrafe ist abgeschafft" - Capital punishment is abolished.[1]

It is debated among constitutional jurists whether article 102 GG in combination with 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) prohibits any targeted killing on the part of the state (e.g. in the context of a hostage situation).[2]

There has also been debate on the question whether this article could legally be abolished by a two-thirds majority in Bundestag and Bundesrat. Section 3 of article 79 GG expressly prohibits only amendments of articles 1 and 20, which suggests that article 102 can in principle legally be amended or repealed under article 79. However some legal scholars have argued that the prohibition of capital punishment follows necessarily from article 2 GG, and article 102 GG merely puts the prohibition beyond doubt. It has also been argued that Article 102, according to its systematical place, does not guarantee a basic right but enacts a judicial restriction.[3] The German Federal Court of Justice in 1995 has argued that "concerns" (Bedenken) related to the general nature of the death penalty "suggest" (legen den Befund nahe) that capital punishment should indeed be considered inadmissible already as a consequence of the guarantee of human dignity in article 1 GG.[4]

The Penal Code was formally[5] amended in 1951 to conform to the abolition. Previous death sentences were replaced by life imprisonment. As the constitution requires that prisoners have a chance of regaining freedom with other means than extralegal pardon only,[6] 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 life without parole.[7]

In 2017 the German Federal Constitutional Court, in its verdict on the attempt to ban the National Democratic Party of Germany, considered the party's demand for a referendum on the reintroduction of capital punishment as anti-constitutional and incompatible with the liberal democratic basic order.[8]

Although article 21.1 of the constitution of the German state of Hesse provided capital punishment for high crimes, this provision was inoperative due to the federal ban on the death penalty ("Bundesrecht bricht Landesrecht." (article 31 GG) – Federal law overrides state law.[9]). The capital punishment provision was finally scrapped from Hesse's state constitution in 2018 by popular vote, with 83% of the votes in favor.[10] The Bavarian Constitution, while not providing the death penalty by itself, for a long time contained a rule of implementation of it[11] which was abrogated in a summary constitutional amendment in 1998.

History

Holy Roman Empire
Main article: High justice

In the Holy Roman Empire, high justice originally was reserved to the king. From the 13th century, it was transferred to the king's vassals along with their fiefs. The first codification of capital punishment was the Halsgerichtsordnung passed by Maximilian I in 1499, followed in 1507 by the Constitutio Criminalis Bambergensis. Both codes formed the basis of the Constitutio Criminalis Carolina (CCC), passed in 1532 under Charles V. In the Habsburg Monarchy, all regional codes were superseded by the Constitutio Criminalis Theresiana in 1768.

Confederation and Reich 1849–1933

If the German constitution enacted 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"). These lines were deleted in the constitution for the Erfurt Union of 1849/1850.

Historian Christopher Clark noted that the death penalty was not very prevalent in Prussia. His work compared the number of executions in Prussia to the number in England and Wales in the first half of the 19th century, which together had about the same population as Prussia. Every year, England and Wales executed about sixteen times as many people. While in Prussia the death penalty was usually applied only in murder cases, the English also executed people for theft, sometimes even in minor cases.[12]

The German Empire (1871–1918) inflicted the death penalty for some forms of (1) high treason and for (2) murder. Murder was defined as killing with premeditation; only murder or attempted murder of one's sovereign was capital treason.[13]

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.[14] During the German empire, the legal methods were the hand-held axe, in some states also the guillotine for civilian crimes, and the firing squad for military crimes.

According to Manfred Messerschmidt,[15] "from 1907 to 1932," i. e. including World War I, "Germany had issued 1547 death warrants, of which 393 were executed. The Weimar Republic retained the death penalty for murder, and several murderers were guillotined.

Nazi Germany

As to the National Socialists, the leading Nazi jurist Hans Frank 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, which in 1936 was ordained the official means of civil execution of capital punishment. From 1942 hanging by using the short-drop method was also used, notoriously in the reprisals in the aftermath of the 20 July plot. 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,[16] 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),[17] compassing or imagining the death of a NS or state official for political reasons or the reason of their service,[18] 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),[19] 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.[20] 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".[21] 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 clearly did not cover it was applied to execute any conscientious 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."[22]

During 1933–1945, Wehrmacht courts issued, conservatively estimated, 25,000 death warrants, of which 18,000 to 20,000 were executed." According to official statistics,[23] other courts had altogether issued 16,560 death warrants (contrasting with 664 before the war), of which about 12,000 were executed. In fighting partisans, 345,000 are reported to have been killed, of which less than 10% may have been partisans.[24]

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 inmate, without any legal ground whatsoever besides the will of Heinrich Himmler, but also without meeting opposition. Himmler himself offered an honorable way out for members of the SS who were convicted of capital crimes-they were locked in a room with a revolver and one live round, then given several hours to use it. After their deaths any surviving family were given pensions. 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.

Charles Lane (writer for The Washington Post) claims the abolishment of capital punishment 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.[25]

A 2017 study found that "judges more committed to the Nazi Party were more likely to impose the death sentence on defendants belonging to organised political opposition groups, those accused of violent resistance and those with characteristics to which Nazism was intolerant."[26]

After World War II

After World War II, limited executions of common and war criminals were carried out on West German soil. The last common criminal to be executed in the Western Zones under German authority was Richard Schuh (murder and robbery) on February 18, 1949; in West Berlin the last execution was of Berthold Wehmeyer (murder, rape and robbery) on 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 at Landsberg prison.[27] Until 1990, 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. However, no capital sentences under this authority were 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, East German 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 under aggravated circumstances). Most of these took place during the 1950s; three known executions took place in the 70s and two in the 80s. The guillotine (called the Fallschwertmaschine, "falling sword machine") was used for the last time on former SS doctor Horst Fischer in 1966, after which it was replaced by execution by shooting (an "unexpected close shot in the back of the head"; "unerwarteter Nahschuss in das Hinterhaupt").[28] East Germany was notable for its secrecy about its executions, even when the death warrants had been issued in show trials; death certificates mostly stated instead "heart failure".

See also

References
  1. Grundgesetz für die Bundesrepublik Deutschland 29.7.2009 Basic Law for the Federal Republic of Germany (Official english translation Stand 22.09.09)
  2. on this point, German Wikipedia (de:Todesstrafe#cite ref-169) cites Roman Herzog: Todesstrafe I. Rechtlich B. Verfassungsrechtlich. In: Evangelisches Staatslexikon. Band 2, Stuttgart 1987, Sp. 3614.
  3. Roman Herzog: Todesstrafe I. Rechtlich B. Verfassungsrechtlich. In: Evangelisches Staatslexikon. Band 2, Stuttgart 1987, Sp. 3615.
  4. "Die staatliche Organisation einer Vollstreckung der Todesstrafe ist schließlich, gemessen am Ideal der Menschenwürde, ein schlechterdings unzumutbares und unerträgliches Unterfangen. Diese Bedenken legen den Befund nahe, daß nach deutschem Verfassungsrecht jegliche Wiedereinführung der Todesstrafe – auch abgesehen von Art. 102 GG – vor Art. 1 Abs. 1 GG und der Wesensgehaltsgarantie des Grundrechts auf Leben (Art. 2 Abs. 2 Satz 1 i. V. m. Art. 19 Abs. 2 GG) keinen Bestand haben könnte" BGH, Urteil vom 16. 11. 1995 – 5 StR 747/94; Ziffer 28 ff.;
  5. 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.
  6. as ruled by the Federal Constitutional Court in BVerfGE 45,147 in 1977.
  7. Though some realistic hope for regaining freedom must still be guaranteed.
  8. Verdict of the Federal Constitutional Court, January 17, 2017 (German).
  9. article 31 GG It would, of course, also be inactive due to lack of an implementing penal law today.
  11. The execution of capital punishment requires previous confirmation by the government, article 47 IV 2 (old form) of the Bavarian Constitution.
  12. Christopher Clark: Preußen. Aufstieg und Niedergang. 1600–1947. BpB, Bonn 2007, p. 534.
  13. § 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.
  14. Militär-Strafgesetzbuch für das Deutsche Reich (MStGB)
  15. Manfred Messerschmidt, Die Wehrmachtjustiz 1933-1945, .
  16. As enacted by the Reichstag Fire Decree. A further law, the Lex van der Lubbe, provided retrospective application so that Marinus van der Lubbe could be "executed" or, rather, murdered.
  17. Cf. the respective forms of the StGB
  18. Law for the upholding of the legal peace, § 1.
  19. Kriegssonderstrafrechtsverordnung
  20. "Grim penal code". The Glasgow Herald. February 6, 1940. p. 9. Retrieved June 18, 2017.
  21. Law of 1941 for the amendment of the Penal Code, § 1
  22. as in: Richard J. Evans: Rituale der Vergeltung. Berlin 2001, S. 828
  23. As reported on the German wikipedia
  24. Wolfgang Curilla: Die deutsche Ordnungspolizei und der Holocaust im Baltikum und Weißrussland 1941-1944, Paderborn 2006, S. 742.
  25. source
  26. Geerling, Wayne; Magee, Gary; Mishra, Vinod; Smyth, Russell (2017-03-01). "Hitler's Judges: Ideological Commitment and the Death Penalty in Nazi Germany". The Economic Journal. 128 (614): 2414–2449. doi:10.1111/ecoj.12497. ISSN 1468-0297.
  27. Norbert Frei, Adenauer's Germany and the Nazi Past: The Politics of Amnesty and Integration. Columbia University Press, 2002. p 173
  28. Hinrichtungen in Leipzig, Bürgerkomitee Leipzig e.V
  • Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany, 1600-1987, Oxford University Press (1996).
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