Murder

Murder is the intentional killing of another human being. Protected are life and physical integrity. The offense requires a human act, the occurrence of death, and a causal connection between the act and the result. Subjectively, intent to kill is sufficient, even conditional intent. It concerns the targeted or at least consciously accepted causing of death. The penalty is exceptionally high. Accordingly, the evidentiary requirements, causality assessment, and evaluation of alternative courses of events are strict.

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objective elements of the offence

The objective element describes the external aspect of the event. It answers the questions of who did what, with what means, what result occurred, and whether there is a causal link between the act and the serious injury that followed.

Steps of legal assessment

• Act: active intervention such as hitting with lethal effect, stabbing or shooting, strangling, poisoning. Alternatively, breach of duty by omission in the case of a guarantor position, such as failure to take life-saving measures.
• Result: Death of another human being.
• Causality: There must be a causal connection between the act and the death of the victim. This means: Without the act, the death would not have occurred. In the case of an omission, it must be examined whether the death could have been prevented with a very high degree of probability if the perpetrator had acted in time.
• Objective imputation: Realization of a legally disapproved risk of death created by the perpetrator. Atypical third-party causes or self-endangerment on one’s own responsibility can interrupt the imputation.

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Distinction from other offences

Classification of offences against physical integrity:

• § 76 – StGB Manslaughter: Killing in a state of intense emotional distress or particular duress, lower penalty range.
• § 77 – StGB Killing on request: serious, insistent request of the victim.
• § 78 – StGB Participation in suicide: Distinction in the case of self-killing on one’s own responsibility.
• § 79 – StGB Infanticide: Special offense during or shortly after birth.
• § 80 – StGB Negligent homicide: Occurrence of death without intent.

The criminal offenses related to bodily harm recede behind the charge of murder. This means: Anyone who attempts to kill or actually kills someone is not additionally punished for bodily harm. These offenses are considered “compensated for”, even if it only remained an attempt.

Burden of proof and evaluation of evidence

Public prosecutor’s office: bears the full burden of proof for the act, the occurrence of death, causality, intent to kill, and the absence of justifications.
Court: assesses the totality of the evidence and evaluates, in particular, the medical documentation. Evidence that is inadmissible or obtained unlawfully cannot be used.
Accused: bears no burden of proof but may present alternative courses of events, raise doubts regarding causation, or invoke the exclusion of unlawfully obtained evidence.

Typical evidence: medical reports, imaging diagnostics (CT, X-ray, MRI), neutral witnesses, video recordings, digital metadata, and expert opinions on the severity of the injury.

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Practical example

• Targeted shot in the upper body with recognizably high risk to life.
• Forceful blows with a hard object against the head, although it is clear that this can cause life-threatening injuries.
• Prolonged strangulation despite visible suffocation symptoms and obvious danger to life.
• Failure to take life-saving measures by a person who would have been legally obliged to intervene (guarantor position), although death was clearly foreseeable.
• Not sufficient is mere presence or knowledge without recognizable contribution to the death.

subjective elements of the offence

Required is intent to kill, be it directly or in the form of conditional intent. This exists if the perpetrator recognizes death as a possible consequence of his actions and nevertheless accepts it. Negligence is not sufficient.

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Unlawfulness and justifications

• Self-defence: an imminent and unlawful attack; the defence must be necessary and proportionate. A retaliatory act after the attack has ended does not constitute self-defence.
• Excusing necessity: imminent danger; no less harmful means available; overriding interest.
• e.
• Gesetzliche Befugnisse: Eingriffe mit Rechtsgrundlage und Verhältnismäßigkeit (insbesondere Amtshandlungen, rechtmäßiger Zwang).

Burden of proof: The public prosecutor’s office must show beyond reasonable doubt that no justification applies. The accused does not have to prove anything; concrete connecting facts are sufficient to create doubt.

Culpability and mistakes

• Mistake of law: excuses only if unavoidable (duty to inform oneself about the law).
• Principle of culpability: only those who act with fault are punishable.
• Unaccountability: no guilt in the event of a severe mental disorder, etc. psychiatric report as soon as there are indications.
• Excusing necessity: unreasonableness of lawful conduct in an extreme situation of coercion.
• Putative self-defence: a mistaken belief in a justification negates intent; negligence remains if provided for by law.

Extinction of punishment and diversion

Criminal proceedings can end without a conviction under certain conditions. Criminal law provides for possibilities to refrain from punishment or to conclude the proceedings through diversion if the accused person takes responsibility and makes amends for the consequences of the crime.

A withdrawal from the attempt leads to no penalty being imposed if the perpetrator voluntarily refrains from further execution or prevents death in time. The decisive factor is that the withdrawal takes place on one’s own initiative and not only because the plan would have failed anyway.

The diversion is an out-of-court conclusion of the criminal proceedings. It only comes into consideration if the guilt is not serious, the facts are fully clarified, and the accused is willing to make amends. Typical measures are payments of money, community service, participation in probation, or a victim-offender mediation.

If the diversion is successful, there is no conviction and no entry in the criminal record. The proceedings are considered completed and the person concerned can continue their life without a formal conviction.

Due to the particularly high penalty for murder, however, a diversion is never considered.

Sentencing and consequences

The amount of the penalty depends on the guilt of the perpetrator and the circumstances of the crime. The court takes into account in particular how planned or spontaneous the killing was, how dangerous, cruel, or cold-blooded it was carried out, and whether the perpetrator showed remorse or attempted to make amends. Personal factors such as previous convictions, living conditions, or cooperation with the investigating authorities can also influence the sentence.

Aggravating circumstances include multiple acts, particularly reckless violence, greed, base motives, or attacks on defenseless victims.
Mitigating circumstances can be a clean record, a confession, remorse, compensation for damages, or an exceptionally stressful life situation. An excessively long duration of the criminal proceedings can also have a mitigating effect.

In the case of murder, a fine is excluded. The only possible penalty is a prison sentence of between ten and twenty years or life imprisonment.
A conditional or partially conditional remission is not considered due to the severity of the offense.

The aim of sentencing is to justly punish the crime and at the same time ensure the future compliance with the law by the perpetrator.

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Penalty Range § 75 StGB

• Basic case: Imprisonment from ten to twenty years
• Particularly serious cases: Life imprisonment
• In the case of murder, a prison sentence in the upper range of the penalty is regularly imposed. Decisive factors are the brutality of the procedure, the motives, and the personality of the perpetrator.

Jurisdiction of the courts

Subject matter: Regional Court.
Local: Place of the offense or place of success; subsidiary residence/place of access.
Instances: Appeal to the Higher Regional Court; appeal on points of nullity to the Supreme Court.

Civil claims in criminal proceedings

In the case of attempted murder, the surviving victim can join the criminal proceedings and assert civil claims such as compensation for pain and suffering, medical expenses, loss of earnings, or property damage. The joinder interrupts the civil statute of limitations to the extent requested. If the claim is not fully granted, it can subsequently be pursued before the civil court.

In the case of completed murder, this right belongs to the surviving dependents. They can claim compensation for funeral costs, loss of maintenance, or emotional distress. An early and well-documented statement of damages facilitates the enforcement of such claims.

A structured compensation for damages or a settlement with the victim’s relatives may have a mitigating effect on the sentence in cases of attempted homicide, but it has no relevance to the sentencing in cases of completed murder.

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Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply.
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

Rights of the accused

• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.
• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.

Your Benefits with Legal Assistance

Proceedings for attempted murder or murder are among the most serious criminal charges. In addition to the threat of a long prison sentence, personal and professional existence is often at stake. Even an ill-considered statement or a faulty expert opinion can decide guilt or acquittal.

An early legal representation is therefore essential to properly secure evidence, review medical and forensic reports, and develop a well-thought-out defense strategy.

Our law firm

• examines the entire investigation process for procedural errors and inadmissible evidence,
• analyzes forensic medical reports and, if necessary, has counter-expertises prepared,
• develops a defense strategy that is tailored to the course of events, motives, and evaluation of evidence,
• supports you throughout the entire investigation and court proceedings,
• protects your rights against the police, public prosecutor’s office, and court with determination,
• supports you or, in the event of death, your relatives in asserting or defending against civil claims.

An experienced criminal defense ensures that the events are classified correctly in terms of facts and law. This gives you a well-founded and targeted representation that takes into account all legal, forensic, and personal aspects.

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Frequently Asked Questions – FAQ

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