It’s another dramatic twist in an unlikely crime. Just a few months ago, a 63-year-old murder suspect was taken into custody in Lower Saxony for a crime he is said to have committed more than 40 years ago. He was to be tried again, although he had already been legally acquitted in 1983. This Saturday, the Federal Constitutional Court ordered his release in an emergency decision. It is about a controversial law from last year that made the retrial of the suspect possible in the first place. It might be against the constitution.
Frederike von Möhlmann was 17 years old when she was raped and killed a few kilometers from Celle. At that time, a worker was suspected – the same man whose release the Federal Constitutional Court has now ordered. There was a murder trial before the Lüneburg Regional Court, which sentenced him to life imprisonment in 1982 for murder. However, the Federal Court of Justice overturned the verdict shortly thereafter due to deficiencies in the assessment of evidence, and the accused was lucky in the new edition: the Stade Regional Court acquitted him in 1983.
It was to take almost three decades before the State Criminal Police Office examined a trace of semen on the dead girl’s panties again using the new technology. It was a hit – the DNA came from the man they initially targeted. But the Code of Criminal Procedure categorically forbids trying someone a second time after a final acquittal. The state has only one attempt to convict a perpetrator, then it’s over. “Ne bis in idem” is the Latin abbreviation for this age-old ban on repeated legal prosecution, once a great achievement of the rule of law against the arbitrariness of the authorities. The noble principle is even anchored in the Basic Law.
The perseverance of the victim’s father was rewarded – at least for now
But the girl’s father managed to put the case back on the legal policy agenda. In 2016, Hans von Möhlmann submitted a petition with more than 100,000 signatures to the Federal Ministry of Justice. His perseverance should be rewarded. Last year, the Bundestag passed a law according to which an acquitted accused of murder, genocide and crimes against humanity can exceptionally be tried a second time – provided that there is new and clear evidence. The coalition at the time was convinced that a narrowly defined exception to the ban on double prosecution had to be permissible.
The law was of course accompanied by strong constitutional concerns from the outset, precisely because the “ne bis in idem” rule is enshrined in the Basic Law. Federal President Frank-Walter Steinmeier also shared the doubts when the law was signed and suggested a new revision. But the law came into force in December, and in February – when the retrial at the Verden District Court was getting underway – the man was arrested.
It is quite possible that the Federal Constitutional Court will forestall a political correction of the reform. In any case, it is driving the process forward at full speed. It has only issued an interim order and expressly left it open as to whether it will really describe the law as unconstitutional in the main proceedings. The fact that the man was released for the time being is based solely on a “consequence assessment”, from which no substantive determination can be derived.
The decision was controversial: three of the eight judges voted against
The court does not hide the fact that it is taking a certain risk by dismissing the man. There is “a weighty general interest in the criminal prosecution of a murder,” and with the cancellation of the arrest warrant, it could also happen that the man evades the proceedings. On the other hand, the man – a German citizen who was born in Turkey – saw the proceedings coming and nevertheless did not withdraw. Karlsruhe ordered that he must hand over his passport and ID card.
From the point of view of the court, the basic rights of the man weigh more heavily for the time being. Even imprisonment as such is a serious encroachment on freedom. Above all, however, the Basic Law itself – “ne bis in idem” – offers protection against renewed criminal prosecution; should the law therefore turn out to be unconstitutional in the main proceedings, his imprisonment would also be a violation of the constitution from this point of view. It will be seen at the end of the Karlsruhe proceedings whether there may be an exception to this legal principle in rare cases, for example in the case of the most serious crimes. But the court is already signaling that protection from multiple criminal prosecutions enjoys a high priority.
However, the decision in the court itself was controversial: three of the eight judges voted against it. Hans von Möhlmann did not live to see the new twist. He passed away a few weeks ago at the age of 79.