Hardly anything disturbs people’s sense of justice as much as the fact that an innocent person was in prison for a serious crime. But it could be even more terrible if someone who is most likely guilty is not in prison and is acquitted due to lack of evidence.
For a long time it was practically impossible to bring someone like that back to court after new facts emerged. That changed after a legal reform. Against the backdrop of a spectacular murder case from Lower Saxony, the Federal Constitutional Court in Karlsruhe has to decide whether it will stay that way.
What kind of case is this?
Over 40 years ago, the 17-year-old student Frederike from Hambühren near Celle was raped and stabbed. A suspect is arrested. The man goes to court, is sentenced to life imprisonment, successfully appeals the decision and is finally acquitted in 1983 due to lack of evidence.
Then there is a turning point: more recent examinations of DNA traces around 30 years later suggest that he is the perpetrator after all. Based on the legal reform from 2021, he will then be arrested again and will go to court for the second time. The man lodges a constitutional complaint against this. After an urgent application, the highest German court ordered his release from custody.
What kind of legal reform is this?
A controversial change in the Code of Criminal Procedure is under review – the expansion of Section 362 to include Section 5. This came into force at the end of 2021. Accordingly, it should be possible to reopen a case “to the detriment” of a defendant even if there are new facts or evidence that a defendant who was once acquitted is guilty after all.
So can every criminal case that has been legally concluded be reopened if new evidence emerges?
No. This should only be possible in cases involving the most serious crimes such as murder, genocide, crimes against humanity and war crimes. If clear new facts or clear evidence emerge against a defendant who was once acquitted that he was the one, he should be able to be tried again. Until the Code of Criminal Procedure was changed, this was only possible in the case of serious procedural errors or if the acquitted person subsequently confessed.
What is the problem with the new regulation?
The highest German court has examined whether it is constitutional. Actually, so-called criminal double prosecution – being tried twice for the same crime – is actually prohibited by the Basic Law. It is about the principle in the Basic Law that no one may be punished more than once for the same crime, said the presiding judge of the Second Senate, Doris König, at the oral hearing in Karlsruhe in May.
Is there a European standard?
There is no uniform binding requirement. The principle that someone cannot be tried or punished twice for the same criminal matter is enshrined in various European conventions such as the Charter of Fundamental Rights of the European Union. However, the wording often leaves room for interpretation or contains possible exceptions.
For example, Article 4 of the 7th Additional Protocol to the European Convention on Human Rights states that no one may be prosecuted or punished again in proceedings in the same State for an offense for which he has been finally convicted or acquitted under the law and criminal procedure law of a State. However, it goes on to say that the paragraph does not exclude the resumption of the proceedings in accordance with the law and criminal procedure law of the state concerned “if new or newly discovered facts exist or the previous proceedings have serious deficiencies that affect the outcome of the proceedings”.
How is it handled in other countries?
The expert Prof. Tatjana Hörnle from the Max Planck Institute for the Study of Crime, Security and Law in Freiburg pointed out at the oral hearing that in many countries there are rules for reopening criminal proceedings to the detriment of defendants – sometimes with more precise wording. In England and Wales, the Criminal Justice Act of 2003 also makes this possible, for example in the case of rape and kidnapping. For example, on the very day of the trial, a man in England was convicted of murder – around 30 years after an acquittal.
