Legal Position
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.
It is debated among constitutional jurists whether 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) or indeed human dignity itself (article 1 section 1 GG) forbids capital punishment; the latter is mentioned by the German Wikipedia as reigning opinion, but seems inconsistent with the fact that article 2 allows exceptions by formal law and, in section 1, similarly guarantees personal freedom (without outlawing prisons).
The Penal Code was formally amended in 1951 to conform to the abolition. Previous death penalty was replaced by life imprisonment. As the constitution requires that prisoners have a chance of regaining freedom with other means than extralegal pardon only, 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 kind of life without parole.
Although article 21.1 of the constitution of the German state of Hesse provides capital punishment for high crimes, this provision is inoperative due to the federal ban on the death penalty ("Bundesrecht bricht Landesrecht" - Federal law overrides state law). The Bavarian Constitution, while not providing death penalty by itself, long time contained a rule of implementation of it which was abrogated in a summary constitutional amendment in 1998.
Read more about this topic: Capital Punishment In Germany
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