Attempted Murder and Attempted Homicide

By Dr. Julius Hagen, Attorney at Law

The threshold for an attempt under German law

In an attempted murder or attempted homicide case, the first decisive issue often arises before the medical evidence is assessed. The question is whether the accused, following the plan he had formed, had already commenced the offence directly. Preparatory conduct alone is not enough. The act must have reached a point at which, in the accused’s own understanding, the killing was to proceed without any substantial further step.

That point may be reached by a shot, a stab or strangulation, while observing the intended victim, preparing an object or waiting for a condition to occur may still fall short. The file therefore has to be read against the accused’s understanding at that moment and against the outward sequence of events.

Immediate steps after the incident

• Do not make a statement about the incident or a possible withdrawal before the file has been reviewed.
• Preserve messages, photographs, videos, emergency calls and medical records in their original form.
• Record the sequence from the attack through any interruption, assistance and the arrival of third parties.
• Identify witnesses and preserve available recordings without altering devices or files.

The withdrawal perspective after the final act

For withdrawal under section 24 of the German Criminal Code, the relevant point is the accused’s perception immediately after the last act of execution. The attempt has failed if, in that perception, the result can no longer be achieved with the means still available. A failed attempt cannot be withdrawn from. It is not enough that the first attack failed; the relevant issue is whether the accused believed that further means remained available.

Several acts may form one continuous course of conduct. They are then not assessed in isolation after every blow or stab. Within a close temporal connection, the accused’s understanding may also change – for example, when a victim unexpectedly gets up or later collapses. The chronology and the accused’s perception of the injuries therefore become separate evidential issues.

Completed and incomplete attempts under section 24

If the accused believes after the last act that the result cannot occur, abandoning further execution may be sufficient. If he considers death possible, or is indifferent to it, the attempt is treated as completed for withdrawal purposes. He must then prevent the result or make a voluntary and serious effort to do everything within his power to prevent it. Calling emergency services, obtaining help or taking concrete rescue measures may therefore have a different legal significance from simply leaving the scene.

Voluntariness means that the decision was made autonomously. Stopping because of fear of discovery, the arrival of police or another personal motive does not automatically exclude a voluntary withdrawal. The reason for stopping must be kept separate from whether the decision was still freely made.

The defence must therefore align the accused’s later account with objective evidence – the injuries, the weapon, the intervals between acts, calls for help, rescue efforts, witness accounts and conduct at the scene. Only a precise timeline shows what the accused believed after the final act.

Distinguishing an attempt from completed homicide

If the victim survives, the case still requires a separate assessment of whether the conduct was directed at causing death and whether a murder characteristic is alleged. This page focuses on the threshold for an attempt and on withdrawal. The neighbouring cluster pages address intent to kill, murder charges and the wider evidential assessment in greater detail.