The Federal Constitutional Court has overturned the new regulation under which acquitted people can be charged again based on new evidence. But there was disagreement among the judges. And the reactions are also mixed.
In 1981, the then 17-year-old Frederike von Möhlmann was found dead – raped and murdered. A suspect was quickly caught. But two years later, in 1983, he was legally acquitted. Decades later, in 2012, new evidence emerged during a DNA analysis that heavily incriminated the acquitted man. But a new trial was not possible because the acquittal had become final.
The father of the murdered woman, who has since died, did not want to accept this. He fought for a change in the law for many years – with success: two years ago, the grand coalition of the Union and the SPD ensured that for particularly serious crimes such as murder or war crimes, a new trial is possible despite a legally binding acquittal if there is new evidence.
The suspect in the Möhlmann case was then charged again last year. He filed a constitutional complaint against this.
“The sting runs deep, it won’t go away”
The von Möhlmann family’s lawyer, Wolfram Schädler, came to Karlsruhe today full of confidence – in the hope that the change in the law will last. Shortly before the verdict was announced, he said that he had spoken on the phone to the murdered woman’s sister, who told him the following:
If we can go through with the legal process, then our family can finally get some peace. This sting runs deep and it won’t go away.
There is no new process
According to the Federal Constitutional Court’s ruling, it is clear: there will be no new trial against the suspect. The change in the law in the Code of Criminal Procedure is unconstitutional and therefore void, according to the Vice President of the Federal Constitutional Court Doris König:
Due to a lack of legal basis, the retrial against the complainant cannot be continued and must be ended.
Legal certainty of the individual is more important
In its decision, the Federal Constitutional Court refers to Article 103 Paragraph 3 of the Basic Law. According to this, it is forbidden to punish someone twice for the same act. The Constitutional Court has now specified how this provision in the Basic Law should be interpreted. It is also forbidden to prosecute someone multiple times for the same crime.
In other words, anyone who has been legally acquitted should not have to constantly fear that they will be tried again. Here, the legal security of the individual, the acquitted person, has greater weight than the state’s right to criminal prosecution.
The Vice-President of the Federal Constitutional Court says: “He should and must be able to trust that after the conclusion of a properly conducted criminal court procedure he cannot be tried again for the same crime.”
Disagreement within the BVerfG Senate
This decision was probably preceded by major arguments in the eight-member Second Senate of the Federal Constitutional Court. The decision was made by six votes to two. Judge Peter Müller and Judge Christine Langenfeld gave a special opinion. Tenor: The fact that a second trial should in principle be possible if there is new evidence is, in exceptional cases, constitutionally permissible.
One of their arguments: The legal peace in society could be damaged if someone goes unpunished for the most serious crimes such as murder despite overwhelming evidence. But they were unable to assert their legal opinions during the deliberations on the verdict.
Court Vice President König made it clear that the decision had not been easy for the Senate majority either.
The Senate is aware that this result is painful and certainly not easy to accept for the relatives of the student killed in 1981 and in particular for the co-plaintiff in the original proceedings.
Lawyers’ association welcomes the verdict
In a written statement, the German Lawyers’ Association welcomed the verdict. The law effectively created an unlimited opportunity to reopen murder trials. Those who were acquitted could never have been sure that they would not have to defend themselves in the dock again on the same matter. This is unacceptable in terms of the rule of law.
Disappointment for the victim’s family
The victim’s family’s lawyer, however, reacted visibly disappointedly to the decision. After the verdict was announced, the victim’s sister told him by telephone that she felt abandoned.
This is not a day of justice. Neither for Möhlmann’s family nor for many of us who hoped that someone could still be convicted because of a false acquittal.
File number: 2 BvR 900/22