The ban on double punishment is one of the fundamental principles of the German constitutional state. In Article 103 Paragraph 3 of the Basic Law It says: “No one may be punished more than once for the same offense under the general criminal laws.”
In practice, this means that a defendant who has been acquitted by a court cannot be tried again for the same crime. For a long time, it was only possible to achieve a retrial in such a case within very narrow limits, even if new information was available that pointed to the perpetrator of the previously acquitted person.
A legal reform that came into force at the end of 2021 should change that and lower the hurdles for retrials in such cases – especially with a view to cases in which only modern DNA analyzes make it possible to clarify crimes that occurred a long time ago. However, the new law only applied when it comes to the most serious crimes, namely murder, genocide, crimes against humanity and war crimes. But the new regulation – more precisely: the extension of Section 362 of the Code of Criminal Procedure by paragraph 5 – has now been reviewed by the Federal Constitutional Court. It ruled that the 2021 law was inconsistent with the Basic Law. The reform of the criminal procedure code is unconstitutional and void, said the highest German court (ref. 2 BvR 900/22).
The case in question: the death of a 17-year-old student from Lower Saxony
The reason why the judges in Karlsruhe dealt with the matter was a case from Lower Saxony. More than 40 years ago, a 17-year-old student was raped and stabbed near Celle. A suspect was arrested, taken to court and sentenced to life in prison. The man successfully appealed the verdict and was finally acquitted in 1983 due to lack of evidence.
Then there was a turning point: New analyzes of DNA evidence about 30 years later suggested that he was the perpetrator after all. Based on the legal reform from 2021, he was then arrested again and was due in court a second time. The man filed a constitutional complaint against this. After an urgent application, the highest German court ordered his release from custody and has now made a final decision in the main proceedings. The case will now be referred back to the responsible regional court.
Retrials in the event of new evidence emerging are regulated differently in democratic constitutional states. However, the principle that someone cannot be tried or punished twice for the same criminal matter is, for example, enshrined in conventions such as the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights (can be read here on page 45). However, the wording often leaves room for interpretation or contains possible exceptions. The European Convention on Human Rights states, for example, that the ban on double punishment does not preclude the resumption of proceedings under the law and criminal procedure law of the state concerned “if new or newly discovered facts exist.”
In German criminal law, retrials are associated with very high hurdles – some lawyers say that the hurdles are too high. This is seen again and again in cases where innocent people have been convicted and it then takes years to correct the miscarriage of justice and obtain a new trial.
In cases in which new findings emerged to the detriment of the accused, until the Code of Criminal Procedure was changed in 2021, a retrial was only possible in the case of serious procedural errors or if the acquitted person subsequently made a confession. The German constitutional state is now returning to this regulation.
The communication on the decision from Karlsruhe states that with today’s decision the Federal Constitutional Court is making “a priority decision in favor of legal certainty over material justice.” Roughly translated, but reasonably understandable for non-lawyers: In case of doubt, it is more important that proceedings are concluded and everyone involved knows where they stand than that possible legal errors are corrected.