constitutional court
Despite acquittal in court? Karlsruhe is examining the new regulation
A murder from 1981 is the concern of the Federal Constitutional Court today – it is about fundamentals. photo
© Uli Deck/dpa
Can someone be tried more than once for the same crime? The legal requirements have been relaxed – but the new regulation is highly controversial. The background is a decades-old murder.
Until recently, the ironclad principle of criminal law was that no one should be prosecuted twice for the same crime. But a change in the law makes this possible in some cases. However, the reform is so controversial that the Federal Constitutional Court is dealing with it today.
The oral hearing in Karlsruhe is specifically about the decades-old murder of Frederike from Lower Saxony: A man is suspected of having raped and stabbed the 17-year-old schoolgirl from Hambühren near Celle in 1981. At the time, this could not be proven with certainty. In 1983 he was ultimately acquitted for lack of evidence.
Is the new regulation constitutional?
According to a recent study of DNA evidence, he could be the culprit. He was arrested again in February last year, and the trial should have started in August at the Verden district court. But shortly before that, the constitutional court ordered the man’s release: it was unclear whether the new regulation was constitutional. The man was therefore released until the main proceedings had decided on his constitutional complaint.
The change in the code of criminal procedure (paragraph 362) came into force at the end of 2021, decided at the time of the grand coalition of Union and SPD in the Bundestag. Previously, it was only possible in a few cases to reopen legally concluded proceedings to the detriment of the accused – for example in the case of a confession.
Since the reform, this is also possible when “new facts or evidence” emerge. The regulation is limited to the most serious crimes such as murder or genocide, which do not become time-barred. Frederike’s father in particular had fought for the new regulation for a long time. Among other things, it put a petition for a change in the law online, which found tens of thousands of supporters.
Steinmeier suggested re-examination
Critics see the central principle of criminal law violated, that a trial against the same suspect may not be opened again for the same crime. Even Federal President Frank-Walter Steinmeier had suggested when drafting the law that it be “subjected to renewed parliamentary examination and consultation” because of constitutional doubts.
After the change of government in the federal government, Federal Minister of Justice Marco Buschmann (FDP) also advocated at least taking another close look at the facilitation of the resumption of completed criminal proceedings. Otherwise every acquittal would be conditional, he said shortly after the law came into force.
One purpose of the tried and tested principle is also to encourage public prosecutors to investigate a case comprehensively and to think very carefully about when to bring charges. Because they should only do that if they “are convinced that they have collected enough evidence to reach a conviction”.
Suspect at large for now
With his constitutional complaint, the person concerned complains in the Frederike case that his basic rights have been violated. His lawyer Johann Schwenn declined to comment further before the hearing. Schwenn announced that the client would not be present in Karlsruhe.
According to the interim order of the Constitutional Court, the suspect remains at liberty until further notice, subject to conditions. Among other things, he has to report to the public prosecutor’s office twice a week and is not allowed to leave his place of residence without permission.
Former federal prosecutor Wolfram Schädler is representing Frederike’s relatives. He was not a party involved, but would take the opportunity to speak, he announced. Nobody in the family wanted to come to the Federal Constitutional Court.
Among other things, the judges of the Second Senate also want to hear the positions of the Federal Government and experts. A judgment is only expected in a few months. (Az. 2 BvR 900/22)