BVerfG ruling on criminal prosecution: A stale feeling

The BVerfG ruling raises questions. If there are new findings, they should be examined. If the most serious crimes are no longer solved, even if it were possible, then the rule of law is incomprehensible to many.

The matter was very controversial among the constitutional judges – a clear sign that people can have different opinions on this issue. The majority of Karlsruhe judges read the Basic Law as an absolute ban on reopening criminal proceedings if there had already been a legally binding verdict.

Exceptions have always been made

But the matter is not quite that absolute. In a few cases it has always been possible – despite a legally binding acquittal – to bring charges again: for example, if documents were forged or if the person concerned later confesses to the crime. This means that exceptions have always been made in this republic. Isn’t such a confession also new evidence? So why not allow a new procedure for other evidence – for example DNA analysis?

It is entirely honorable for the Constitutional Court to reflect on the Nazi era and say: We learned something from that. It was unbearable back then that no one could find peace. During the dictatorship, innocent people repeatedly had to fear that their criminal cases would be reopened.

It should be about education

However, today in 2023 we are miles away from such conditions. We do not live in an unjust state; even after the law was expanded two years ago, a resumption was still the absolute exception. Only in particularly serious cases, such as murder or international crimes, should new charges be possible.

The majority of judges say: Our criminal proceedings are not about punishing in every case and without fail. We are committed to the presumption of innocence. It can also happen that someone is not punished – simply because there is no evidence of the crime.

My counter-argument: If there is evidence, shouldn’t the courts at least be able to examine it? It may be that the second round ends with an acquittal again. But then we at least tried to clarify things.

New Investigation technique brings new insights

As for the victims and their relatives: They cannot be the sole reason why a criminal case is reopened. But when new investigative techniques provide new information, state inaction in serious crimes such as murder leaves a stale feeling. Why is it so much more important that the possible perpetrator can be confident that he will not come to court again?

The Constitutional Court wants to protect the rule of law. This needs to be recognized in times of rampant populism. But when the most serious crimes are no longer allowed to be solved, even though there seems to be a way to do so, the rule of law becomes incomprehensible to many.