As of: 25.06.2021 7:02 a.m.
Suspected murderers can in future be brought to justice even if they have already been acquitted. That is supposed to bring about justice. But is that compatible with the Basic Law?
From Kolja Schwartz,
ARD legal editor
Frederike was 17 when she got into a stranger’s car on November 4, 1981. She wants to hitchhike home a few kilometers after the choir rehearsal. Her body is found four days later. She has been raped and brutally murdered. The investigators track down a young man. But he was acquitted in 1983. The court has doubts and therefore cannot convict him.
DNA analysis leads to new evidence
Almost 40 years after the act, a change in the law should ensure, among other things, that the alleged murderer of Frederike von Möhlmann can still be called to account. That he can be tried again, even though he has already been legally acquitted. Because: There is new evidence against him: In 2012 a DNA analysis showed that traces of the murdered young woman came from the suspect. This technology was not yet available in the 1980s. In a new trial it could now be enough for a conviction.
New negotiations so far only in exceptional cases
However, the current law has not yet allowed a second trial. The Code of Criminal Procedure only allowed criminal proceedings to be resumed at the expense of a defendant if there was manipulation in the first proceedings, for example if witnesses or experts gave false testimony under oath, or if documents were forged. Or if the acquitted later made a confession, i.e. wanted the second trial himself. New evidence or new methods such as DNA analysis were not included.
Father fought a petition to change the law
“The defendant at the time is the alleged murderer of my daughter, but is still at large. That is unbearable for me,” says Hans von Möhlmann, the father of the murdered Frederike. For years he has been fighting with his lawyer for a change in the law, and in a petition he has found a good 180,000 supporters for it.
And indeed: In the last second before the end of the legislative period, the government factions passed the “Law for the Establishment of Material Justice”. According to this, resumptions should now also be possible if new facts or evidence are provided. Whenever these form “urgent reasons” for a conviction. However, this should only be possible if murder or certain acts according to the International Criminal Code are in the room. So it is about acts for which life sentences must be imposed – acts that do not come under the statute of limitations.
Principle is in the constitution
“No one may be punished more than once for the same act on the basis of the general criminal laws,” says Article 103, Paragraph 3 of the Basic Law. And in the case law it is very clear that this also means: Nobody may be tried twice for the same offense – an essential principle of a constitutional state. Anyone who has been legally acquitted should not always have the fear of being brought to court again. That should create legal certainty.
The principle that lawyers call “ne bis in idem” in Latin has existed since Roman law. In 1949, however, the mothers and fathers of the Basic Law deliberately wrote it into the constitution. Because: In the Nazi era it was not valid, unpopular judgments were exchanged, according to the code of criminal procedure a resumption was always possible “if the new persecution was necessary to protect the people”.
New regulation incompatible with the Basic Law?
In the Legal Affairs Committee of the Bundestag, lawyers therefore discussed whether the amendment to the Code of Criminal Procedure violated the Constitution. In early decisions, the Federal Constitutional Court said: Changes are possible. But: The core area of Article 103 paragraph 3 must not be touched. Wolfram Schädler, Hans von Möhlmann’s lawyer, argued: “In a constitutional state, the state must not exchange judgments that it does not like. And the new law will respect that.”
Jörg Eisele, law professor at the University of Tübingen, also argued that the narrow limitation to the most serious crimes, which are threatened with life sentences and which are not subject to the statute of limitations, allow the change. “Sticking to the legal force would lead to unbearable results.” Within these narrow limits, material justice must take precedence over legal certainty.
Others clearly see the core area touched here. “Only rarely has a violation of the Basic Law been as clear as it is here,” said Ulf Buermeyer, chairman of the Society for Freedom Rights. And Stefan Conen added in his statement for the German Lawyers’ Association: “The draft law effectively abolishes ne bes in idem for those acquitted of murder”, although the Basic Law does not allow for any consideration.
“Unbearable results” are also a very poor demarcation, says Buermeyer: “I think we can all quickly think of other terrible crimes.” Soon there would certainly be demands to expand this, if one allowed it, so the argumentation.
Witnesses could also bring about a new trial
After the change in the law, new facts or evidence must be brought in to initiate a second trial. The regulation is therefore not limited to new methods of proof such as DNA analysis. A witness who suddenly appeared could also trigger a new trial. Or someone who makes use of his right to refuse to testify in the first trial and then changes his mind after a falling out with the perpetrator. But witnesses are often not particularly good evidence, especially not if many years have passed after the act. And: innocent people are also on trial, i.e. people who are rightly acquitted. In the future, they too will have to live with the fear that they will end up in court again.
In the end, Karlsruhe will decide
The law still has to be passed by the Federal Council. If he calls the mediation committee, the change would probably be a thing of the past. The Bundestag could overrule the state chamber on the objection law, but that will probably no longer be possible before the election.
But when the change comes into law, one thing seems certain: it won’t be long before the first case ends up before the Federal Constitutional Court. In the end, Karlsruhe will decide whether this is compatible with the Basic Law.