Under the German penal code, Strafgesetzbuch, there are two sections relating to homicide: ... whoever kills a human being out of murderous intent, to satisfy sexual desires, out of greed or otherwise base motives, insidiously or cruelly, or with means dangerous to the public, or in order to commit or cover up another crime ...The current form of § 211 StGB was created in 1941 by Nazi jurist Roland Freisler.
Many German states defined Mord (murder) as killing "with consideration" and Totschlag without—similar to other continental European countries (today for example the Netherlands).
While premeditation only means that there is forethought or a plan, consideration is defined as a psychological state of mind, in which the criminal is consciously weighing the motives for and against the crime.
It took over the idea and mainly also the wording of the reform commission for the Swiss StGB headed by Carl Stoss in 1896.
[6] If the death is a negligent consequence of an intended act of violence, it is classified as Körperverletzung mit Todesfolge (infliction of bodily harm with deadly outcome—§ 227 StGB).
Killing out of envy of the economic success of another person or in order to be able to marry a rich woman is seen as equal to greed.
With this definition mercy killings are excluded as well as suicide cases, in which the perpetrator wants to take a close person with him, in a situation of despair.
The criterion of consciousness excludes cases in which the perpetrator acts in a heat of passion (affect) and therefore is not realizing that he kills a person that is unaware of the attack.
In the legal literature some furthermore require an especially despicable breach of trust—which however would exclude hideous attack outside a relationship of trust.
They point out that the German word heimtückisch consists of two elements: heimlich (by stealth) and tückisch (treacherous).
The judiciary maintains that also in those cases the perpetrator is usually aware and uses the unsuspiciousness and defenselessness of the person from attack in an hostile attitude.
Therefore, they conclude that a killing by stealth is treacherous, when the perpetrator is aware of the unsuspiciousness and defenselessness of the person from attack in an hostile attitude.
The position of the literature gives no clear criteria to define the difference between treacherous killings (Heimtückemord) and Totschlag.
That leaves it to the judge to decide whether a killing committed by stealth still ought not to be considered as a treacherous murder due to special mitigating circumstances.
However, the wording of § 211 StGB does not mention an additional criterion of a special damnability (positive type correction).
But also cases with special mitigating circumstances fall under this definition, for which the lifetime prison sentence is too hard.
However, some kind of correction is required to avoid a disproportionate punishment in cases with obviously extraordinary mitigating circumstances.
Example: laying fire in order to kill (usually leads to danger for fireman—therefore for life or limb of persons other than the targeted victim), causing an explosion (in an inhabited area), throwing stones from a bridge down to a crowded motorway.
German criminal law also knows the offence of felony murder (intentional killing during the course of a crime, e.g. robbery, kidnapping or sexual assault) which also carries a life sentence.
However, such cases are considered as killings out of another base motive (§ 211 II 1 Group StGB) and therefore also fall under murder.
Simple intention (dolus eventualis) is enough, except in cases where that would be illogical with the cover-up motive.
For example, when the criminal knows that the witness recognized him and knows his name, only the deliberate killing with direct intention (dolus directus of one degree) is compatible with the cover-up motive.
When the witness does not personally know the perpetrator (e.g. just saw his face) simple intention (dolus eventualis) is enough for the cover-up motive.
In the case of the killing of an accomplice direct intention (dolus directus of one degree) is logic necessity to fulfill the cover-up motive.
In German law, if a killing happens in the process of another crime, but there was no intention to kill, this is treated as one of several specific "with deadly outcome" crimes, including from the Criminal Code: The penalty of these very grave offenses is a prison sentence of not less than ten years, or life imprisonment.