The reminder came just before Christmas. Federal President Frank-Walter Steinmeier had expressed constitutional doubts about a last-minute law of the previous coalition, namely the reform of the resumption of criminal trials. In the case of murder, among other things, it is now in the law, the final acquittal of a suspect should be able to be overturned retrospectively if, for example, a hot DNA trail turns up.
Steinmeier warned that this could violate the constitutional prohibition that no one may be tried several times for the same offense. In addition, he saw problems with the retroactive application of the paragraph – but drafted the law nonetheless. In these days, the reaction of the new Federal Justice Minister Marco Buschmann (FDP) followed: “Personally, I think it is right that we should take up the question again,” he was quoted by the German Press Agency.
It is politically obvious that the minister should take up the ball, at least if the FDP wants to be more determined as a constitutional liberal party. From a legal point of view, it is absolutely imperative to subject the controversial project to another examination. Even before Steinmeier’s intervention, the constitutional doubts were palpable. Even the Federal Ministry of Justice under Buschmann’s predecessor Christine Lambrecht (SPD) had put on record that the Basic Law left little room for such a reform. With half the veto of the Federal President – who, because he is not a substitute constitutional court, only articulates really tangible concerns – it was clear that if the law were to be reviewed in Karlsruhe, it would be a very difficult process.
Roots to Roman law
Because the reform promoted by the right-wing politicians Jan-Marco Luczak (CDU) and Johannes Fechner (SPD) was nothing less than a taboo. The roots of the legal principle that nobody may be prosecuted twice for the same thing (“ne bis in idem”) go back to Roman law. It has been part of the rule of law arsenal since the middle of the 19th century. That the state has only one attempt to put a suspect behind bars draws him a fundamental limit; Hardly anything intervenes more existentially in the lives of citizens than law enforcement. In 1949 the prohibition of double punishment was written into the Basic Law, because the Nazis of course hadn’t cared about it.
Of course, the reformers did not make it easy for themselves either. First, the new paragraph should only apply to the most serious, non-statute-barred crimes – murder, genocide, crimes against humanity, war crimes. Second, the hurdles are high: not every new lead should be enough to upset a final acquittal, but only evidence that is highly likely to lead to a conviction.
Nevertheless, critics such as the Berlin law professor Helmut Aust spoke of an “acquittal with reservations” and warned of a hunt for “cold cases”. Even DNA results by no means always bring the desired certainty. Stefan Conen from the German Lawyers’ Association puts it even more sharply: “The regulation allows the resumption of proceedings to the disadvantage of acquittals in any arbitrary way, which the mothers and fathers of the Basic Law wanted to put an end to after 1945 and have done so.”
Does the Bundestag have to judge it?
But despite Buschmann’s initiative, it is by no means clear whether the ministry itself will draft a bill. His position is quite clear: the law poses a considerable problem, so that “one has to ask oneself whether the constitution is not even violated here”. However, he does not want to express himself as much as a minister; this is his view “as a member of parliament and a legal politician”.
In other words: Perhaps it has to address a draft law from the Bundestag. In any case, the Greens would go along with them, as their parliamentary deputy Konstantin von Notz has already signaled. The SPD, however, in the previous Bundestag co-author of the controversial law, keeps all options open. He still thinks the law is correct, said deputy parliamentary group leader Dirk Wiese. But “we take the letter from the Federal President very seriously and will seek talks with experts as soon as possible”.