Retrial violates the Basic Law — BVerfG overturns § 362 No. 5 StPO

Even murder suspects who have been finally acquitted may not be retried if there are urgent grounds for a convic­tion based on new facts or evidence.

The Second Senate of the Federal Consti­tu­tional Court has upheld the consti­tu­tional complaint of Ismet H., who was suspected of murder in 1981 and legally acquitted in 1983 (BVerfG, judge­ment of 31 October 2023, ref. 2 BvR 900/22).

The decision is largely based on the consti­tu­tional prohi­bi­tions of multiple convic­tions and retroac­ti­vity.

“No one may be punished more than once for the same offence on the basis of the general criminal laws” — this is the prohi­bi­tion of multiple prose­cu­tion (also known as “ne bis in idem”) in Art. 103 para. 3 of the German Basic Law.

A seemingly succinct sentence, but one that has an over­whel­ming impact in criminal law prac­tice — just like the prohi­bi­tion of retroac­ti­vity enshrined in Art. 103 para. 3 GG in conjunc­tion with Art. 20 para. 3 GG:

Against the back­ground of these prin­ci­ples, the Federal Consti­tu­tional Court declared the provi­sion of Section 362 No. 5 StPO uncon­sti­tu­tional in its judge­ment of 31 October 2023.

§ Section 362 no. 5 of the Code of Criminal Proce­dure, which came into force in December 2021, stipu­lates that a retrial of criminal procee­dings concluded by final judge­ment is permis­sible if new facts or evidence are brought forward that consti­tute urgent grounds for convic­ting the acquitted defen­dant of murder or certain offences under the Inter­na­tional Criminal Code.

The aim of intro­du­cing such a ground for retrial was to “estab­lish mate­rial justice”. From the legis­la­tor’s point of view, it was an “into­le­rable viola­tion of justice” that ended criminal procee­dings could not be reopened, even in the case of the most serious offences, if new incri­mi­na­ting evidence subse­quently emerged.

The case of Ismet H., who was suspected of having raped and murdered the then 17-year-old Frede­rike Möhl­mann in 1981, is likely to have contri­buted signi­fi­cantly to the intro­duc­tion of Section 362 No. 5 of the Code of Criminal Proce­dure.

The defen­dant at the time was finally acquitted by the Stade Regional Court in 1983. In the course of time, the analysis of a DNA trace of Ismet H., which had been secured at the time, provided new evidence poin­ting to his invol­vement in the offence.

The father of the murder victim subse­quently endea­voured to change the right to retrial by means of a peti­tion signed by 180,000 people.

After Section 362 No. 5 of the Code of Criminal Proce­dure was incor­po­rated into the Code of Criminal Proce­dure, Ismet H. was detained in 2022 and the procee­dings were resumed.

After unsuc­cessfully appe­aling against the appli­ca­tion for retrial, Ismet H. took his case to the Federal Consti­tu­tional Court, where the judges in Karls­ruhe ruled in his favour:

§ Accor­ding to the Federal Consti­tu­tional Court, Section 362 No. 5 StPO violates both the prohi­bi­tion of multiple prose­cu­tions and the prohi­bi­tion of retroac­ti­vity.

Article 103(3) of the Basic Law gives abso­lute prio­rity to the prin­ciple of legal certainty — even over the prin­ciple of mate­rial justice. This prio­rity could not be rela­ti­vised by weig­hing it up against other legal inte­rests of consti­tu­tional status.

The judges draw this conclu­sion from the syste­matic connec­tion between Art. 103 Para. 3 GG and Art. 103 Para. 2 GG, which is like­wise resistant to balan­cing and does not require any further proce­dural orga­ni­sa­tion in ordi­nary law.

The meaning and purpose of Art. 103 Para. 3 GG, which is to guarantee the protec­tion of the indi­vi­dual’s legi­ti­mate expec­ta­tions and to create legal peace, would also be under­mined by devia­ting regu­la­tions.

Further­more, in the view of the Federal Consti­tu­tional Court, the appli­ca­tion of Section 362 No. 5 of the Code of Criminal Proce­dure in the case of Ismet H. consti­tutes a so-called “genuine retroac­tive effect”, which is inad­mis­sible under consti­tu­tional law. A genuine retroac­tive effect always exists if the legis­lator subse­quently inter­venes in a life situa­tion that was already concluded before the intro­duc­tion of the law to the detri­ment of the norm addressee by means of a new norm.

§ Section 362 no. 5 of the German Code of Criminal Proce­dure (StPO) allows, among other things, the reope­ning of criminal procee­dings, i.e. matters of life that were already legally concluded by an acquittal before 2021, which places a burden on the acquitted party.

What conclu­sions can be drawn from the judge­ment of the Federal Consti­tu­tional Court?

Firstly, it once again impres­si­vely demons­trates how the sense of justice of large sections of the popu­la­tion — after all, the peti­tion in favour of chan­ging the right to retrial received 180,000 signa­tures — can clash with the actual legal situa­tion.

Secondly, the decision demons­trates that even legi­ti­mate and weighty concerns, such as the goal of achie­ving a substan­tively “correct” and “just” judge­ment, may not be able to shake funda­mental consti­tu­tional prin­ci­ples.

A condi­tional acquittal is consti­tu­tional — even if this can be very bitter for injured parties and their rela­tives in indi­vi­dual cases.