translated to english from tagesschau.de/
In the net, the assertion that the death penalty in Germany still exists. In fact, it is still anchored in the Hessian constitution. According to Article 21, a person may be sentenced to death “for particularly serious crimes”. What does that mean?
“I am not a proponent of the death penalty … but in Germany there is just the death penalty, see Hesse! […] Take care of your own garbage.” Comments like this are always on the social networks when it comes to the death penalty in Iran or the current discussion in Turkey. A second user goes even further: “There is the death penalty in Europe […] according to the EU Treaty of Lisbon see Grundrechtecharta.” What is the purpose of these assertions?
No. Article 102 of the Basic Law clearly states that “the death penalty is abolished”. The Criminal Code does not provide for a paragraph on the death penalty. The same is true at European level, as stressed by ARD law expert Max Bauer. EU law, which is beyond the laws of individual nations, prohibits the death penalty. Pursuant to Article 2 (2) of the Charter of Fundamental Rights of the European Union, no person shall be condemned or executed. And the 13th Protocol of the European Convention on Human Rights also states that “the death penalty is abolished, and no one shall be condemned or punished.” These requirements apply to all EU members, but also to non-EU countries such as Switzerland, Turkey and Russia.
Is there a death penalty in Germany?
In the Hessian constitution, the death penalty is still anchored. According to Article 21, a person may be sentenced to death “for particularly serious crimes”. However, the law expert Bauer declares: Since the Basic Law as a constitution of Germany is above the law of the federal states, the passage has no meaning. Article 31 of the Grundgesetz states that federal law breaks the law of the country. This means: First of all, what is the basic law applies. The death penalty in the Hessian Constitution is therefore irrelevant.
The spokesman of the Hessian SPD, Christoph Gehring, also stresses that the death penalty has never been imposed, let alone executed, by German courts in Hesse. A deletion of the paragraph would ultimately only have a symbolic character, says Jan Schaefer, lecturer for public law at the LMU Munich. However, it would contribute to a better understanding of the legal situation in the public sphere.
Why is the death penalty still in a state constitution?
This has historical reasons. The Hessian constitution is the oldest constitution in the Federal Republic, it has been valid since 1946. The Basic Law came into force only on May 24, 1949. In order to change the Hessian constitution, one needs not only an absolute majority in the state parliament but also the Hessian population in a national decision.
According to the right-wing spokesman of the Hesse CDU, Hartmut Honka, there are no serious voices in the Landtag today that want to keep the death penalty. However, because the parties could not agree on other points, the passage has not yet been deleted. According to the law expert Bauer, the parties are currently discussing a constitutional reform. The passage on the death penalty is missing. It is planned that the Hessian population will be able to vote on this in parallel with the next 2018 Landtag election.
Shadows on an EU flag
The EU’s relationship with the death penalty
Turkey is pushing into the EU – and at the same time President Erdogan announces that he intends to introduce the death penalty. That does not fit together, says Brussels. For a renunciation of this ultimate punishment is a key to EU membership. By Judith Koch. 18.07.2016 | more
What does it look like in the other federal states?
Hessen is the only state in which the historical relic still exists. After 1945, there were still a few constitutions which provided the death penalty, as Bauer says. This was the case in Baden, Bavaria, Bremen, North Rhine-Westphalia, Rhineland-Palatinate and the Saarland. Gradually the constitutions were changed. Finally, the passage to the death penalty in Bavaria in 1998 was removed after a national decision.
In the constitutions of the other states, the death penalty was never anchored. The reason for this is that most of the state constitutions valid today have come into force according to the Basic Law of 1949, as Schaefer says.
Have death sentences been imposed in the Federal Republic? In the Federal Republic, death sentences were never imposed. In the GDR it was different: the death penalty officially existed in 1987. The last death sentence was executed in 1981 by an employee of the Ministry of State Security. He was accused of wanting to flee to the West. Could the death penalty be reinstated? ARD law expert Bauer says: As long as the basic law applies, there is also no death penalty. Because the death penalty violates human dignity as well as the rule of law, the prohibition of the death penalty falls under the so-called “eternity guarantee”, which governs Article 79 (3): even if the basic law changes, the prohibition should not be touched. Germany would also have to leave the European Convention on Human Rights and the EU, if it wanted to reintroduce the death penalty.