The Framework of Criminal Law
Legislation on Bias-motivated Violence: None
| Bias-motivated Violent Crimes as Specific Offenses | Bias as an Express General Aggravating Factor | Bias as an Aggravating Factor in Specific Common Crimes |
Bias Types Covered by Provisions on Aggravating Circumstances: N/A
| Race/National Origin/Ethnicity | Religion | Sexual Orientation | Gender | Disability | Other |
The Criminal Code of Germany does not contain any general provisions that expressly enable the racist or other bias motives of the offender to be taken into account by the courts as an aggravating circumstance when sentencing.
The code does provide sentencing guidelines on mitigating and aggravating circumstances, although there is no explicit mention of racist or other bias motives as a factor which would enhance the punishment. Under paragraph 2 of Section 46 (Principles for determining punishment), the court, in determining a sentence, “shall counterbalance the circumstances which speak for and against the perpetrator. In doing so, consideration shall be given in particular to:
· the motives and aims of the perpetrator;
· the state of mind reflected in the act and the willfulness involved in its commission;
· the extent of breach of any duties;
· the manner of execution and the culpable consequences of the act;
· the perpetrator’s prior history, his personal and financial circumstances;
· the perpetrator’s conduct after the act, particularly his/her efforts to make restitution for the harm caused as well as the perpetrator’s efforts to achieve mediation with the aggrieved party.”[1]
The European Commission against Racism and Intolerance (ECRI) noted that the absence of a precise reference in the Criminal Code to racist motivations as an aggravating circumstance for ordinary offences may have contributed to crimes based on racist motivations not being investigated or prosecuted as such. Additionally, bias motivations are not explicitly taken into account as a specific aggravating circumstance in sentencing. ECRI continued to call for the adoption of specific provision in the criminal law for racist motivations for ordinary offences to constitute an aggravating circumstance.[2]
In the specific case of homicide, the Criminal Code of Germany defines a murder as a killing perpetrated with “base motives.” The Federal Supreme Court (Bundesgerichtshof) issued a decision in 1993 in which racist motives are considered base motives and are thus treated as an aggravating circumstance.[3] A number of other higher courts have subsequently upheld the principle found in subsection 1 of section 211 of the German criminal code, which deals with base motives in relation to murder cases, states that base motives may be considered as an aggravating factor in handing down a life sentence of murder to an offender, also applies to racist and similar motives.[4] If a court takes a racist motive into account it is explicitly stated in the decision but it does not appear on the record. [5]
[1] Criminal Code (Strafgesetzbuch, StGB) as promulgated on November 13, 1998 (Federal Law Gazette I, p. 945, p. 3322), http://www.iuscomp.org/gla/statutes/StGB.htm#46.
[2] European Commission against Racism and Intolerance, “Fourth Report on Germany,” CRI(2009)19, May 26, 2009, http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_04/04_CbC_eng/DEU-CbC-IV-2009-019-ENG.pdf.
[3] Decision of the Federal Supreme Court, BGH 5 StR 359/93 from July 7, 1993.
[4] According to the German penal code, Section 211, a murderer is whoever kills a human being out of murderous lust, to satisfy his sexual desires, from greed or otherwise base motives, treacherously or cruelly or with means dangerous to the public or in order to make another crime possible or cover it up. Racism is considered a “base motive” which would allow the Public Prosecution Department to charge a criminal defendant with murder rather than with manslaughter.
[5] Information obtained from Dr. Andreas Stegbauer, Judge at the County Court of Eggenfelden in an email to Human Rights First on July 15, 2008. Dr. Stegbauer was a participant in the OSCE/ODIHR’s Expert Round Table addressing the Guideline on Hate Crime Legislation, Vienna (date).