GER: Ne bis in idem – Justice or Legal Certainty?

Dec 15, 2023 Benn-Ibler Rechtsanwälte

Once you have been legally acquitted, you do not have to worry for the rest of your life that your case will be reopened if there is new evidence. This controversial provision of the 2021 German Criminal Procedure Code has now been declared unconstitutional.

The German Federal Constitutional Court’s (Bundesverfassungsgericht, hereinafter BVerfG) review was prompted by the murder of a schoolgirl in 1981. The suspect, who had allegedly raped and then stabbed the girl, was acquitted due to lack of evidence. After new evidence came to light, the case was reopened on the basis of Section 362(5) of the German Code of Criminal Procedure ((Strafprozessordnung, hereinafter StPO), a section which was introduced in 2021, to the detriment of the acquitted man. The man defended himself with a constitutional complaint.

The controversial ‘Law for the Restoration of Substantive Justice’ expanded the existing grounds for retrial by introducing Section 362(5) of the StPO. According to this provision, criminal proceedings against an individual who has been acquitted can be reopened if there are urgent grounds for convicting that person of murder or certain international crimes on the basis of new facts or evidence.

The BVerfG has now declared Section 362(5) of the StPO null and void because the ban on multiple prosecutions had been violated. The prohibition of multiple prosecution in Article 103.3 of the German constitution-like Basic Law (Grundgesetz) gives the individual right to legal certainty and the protection of legitimate expectations absolute priority over substantive justice. This priority must be regarded as absolute and be balanced.

However, Article 103.3 of the Basic Law must be interpreted very narrowly as a prohibition to be weighed up. It covers only a narrowly defined individual expression of the protection of the legitimate expectations of the convicted person in legally valid decisions. Thus, within the scope of this limited protection, legislation is not generally prohibited from reopening criminal proceedings, but at least from reopening them pursuant to Section 362(5) of the StPO on the basis of new facts or evidence.

BVerfG 2 BvR 900/22 (31 October 2023)