Mord und Totschlag

18. Mai 2014

… sind in der deutschen Redewendung wie in der deutschen Rechtsprechung zwei grundverschiedene Sachverhalte. Nicht zuletzt im Blick auf das Strafmaß: Mord wird mit lebenslänglicher Freiheitsstrafe geahndet, Totschlag mit wesentlich kürzeren Haftzeiten.

Um so wichtiger ist natürlich die Frage: Wie genau unterscheidet man eigentlich die beiden Delikte? Nach jahrzehntelange Diskussion will Heiko Maas als Justizminister jetzt Nägel mit Köpfen machen – und setzt am Dienstag eine Expertenkommission ein. Die soll die relevanten Paragrafen 211 und 212 des Strafgesetzbuchs grundlegend reformieren.

Zu Recht, wie ich finde. Und zwar nicht nur wegen der bislang gegebenen Schwammigkeit (was genau ist nochmals Heimtücke?). Auch nicht nur wegen der notwendigen Verrenkungen in der praktischen Rechtsprechung (die ein aktueller Deutschlandfunk-»Hintergrund«-Bericht anschaulich schildert). Mit der Herkunft der wesentlichen Passagen aus der NS-Zeit (Hauptautor war 1941 der berüchtigte Richter Roland Freisler) ist auch ein anthropologisch-theologisches Problem verbunden: Die im Strafgesetzbuch singuläre Formulierung

Mörder ist, wer …

zielt nämlich nicht auf eine Tat, sondern auf eine Person. Sie identifiziert einen Menschen wesensmäßig, unwiderruflich mit einer begangenen Tat. Und versäumt so die – im Einzelfall (vgl. die Diskussionen rund um den NSU-Prozess und Beate Zschäpes Verteidigerin Anja Sturm) skandalöse, aber eben entscheidende – Trennung zwischen Person und Werk.

 

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