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.