A man is acquitted of murder. Years later, evidence against him emerges, there should be a new trial. The man complains about that. The Constitutional Court must now clarify a fundamental question.
The hearing at the Federal Constitutional Court today will deal with a murder that happened more than 40 years ago: Frederike von Möhlmann was 17 years old when she got into the car with a strange man on November 4, 1981 on the way back from a choir rehearsal. Four days later she is found dead, raped and murdered.
A suspect is caught but finally acquitted in 1983. Then, in 2012, new evidence emerged. A DNA analysis, which was not yet possible in the 1980s, indicates that the man who was acquitted in 1983 could be the perpetrator. Traces of sperm are said to incriminate him.
legal entity Acquittal prevents second trial
However, a new criminal trial is not possible in 2012. Because an important principle of the rule of law stands in the way of this: Article 103 paragraph 3 of the Basic Law states: “No one may be punished more than once for the same act (…).”
And according to case law, this also means that no one may be tried more than once for the same crime. If someone has been legally acquitted, then legal certainty should apply. The acquitted person should not constantly have to fear that he will end up in court again despite the acquittal.
“Ne bis in idem” is what lawyers call this principle in Latin. The fact that it was written into the Basic Law in 1949 also has something to do with Germany’s Nazi past. Legal certainty meant nothing for the Nazi judiciary. The resumption of criminal proceedings was always possible “if the new persecution was necessary to protect the people”. For example, when sentences were too lenient, the accused were simply tried again.
In 2021 the law was changed
The legal situation was clear until 2021. A retrial at the expense of the accused only existed in absolutely exceptional cases. A second criminal proceeding was only possible if the acquitted person later confessed and wanted a new trial, or if the first trial involved manipulation, for example false testimony.
For Hans von Möhlmann, Frederike’s father, it was “incomprehensible that a man was walking around freely”, even though there was evidence that he could have killed his daughter. Hans von Möhlmann fought for years to change the law. He found 180,000 supporters for his petition. And he was successful: in 2021, the grand coalition changed the legal situation shortly before the end of the legislative period. In the case of offenses that are not subject to a statute of limitations, such as murder or war crimes, it is now easier to retrial at the expense of an acquitted person. And whenever there is new evidence that can be “urgent reasons” for a conviction.
Verden district court allows second trial
In 2022 Hans von Möhlmann died. But in the same year, the Verden district court declared the resumption of criminal proceedings in the Frederike case to be permissible. There should be a new trial against the man who was acquitted in 1983. On the other hand, he complained to the Federal Constitutional Court.
A fundamental question must be clarified
In Karlsruhe, negotiations are now underway on the legal change from 2021, which made the new criminal trial in the Frederike case possible. But the criticism of the new rules was already great in 2021. Federal President Frank-Walter Steinmeier had constitutional concerns when he signed the law. Likewise the Ministry of Justice, lawyers’ associations and constitutional lawyers.
Lawyer Stefan Conen, who spoke for the German Lawyers’ Association, says: The rule of law principle “Ne bis in idem” does not protect perpetrators, but those who have been acquitted in a constitutional process. Legal certainty is important for people who have already faced serious charges. If they had to expect a retrial after the acquittal, these people would be “scarred for life”.
Karlsruhe must weigh up
Two legal positions now face each other at the hearing: On the one hand: the interest of the victims’ relatives in truth and justice and the state’s right to punish serious crimes; especially murders, for which there is no statute of limitations.
On the other hand, there is the principle of legal certainty. The advocates of legal certainty point out that the new rules do not only allow a retrial in the case of new DNA evidence. But, for example, when a witness suddenly decides to testify.
In the case of Frederike, there is also the fact that the new law was not only made for the future, but is applied to a case from the past. That could violate the constitutional ban on making new laws retrospective for old cases. This question will also be discussed in Karlsruhe today, Wednesday. A verdict is expected in a few months.