German court rules double jeopardy statute unconstitutional – JURIST

The German Constitutional Court on Tuesday ruled a law allowing double jeopardy in criminal cases where new evidence was available was unconstitutional. In the majority decision, the justices found a fundamental right that “no person may be punished more than once for the same offense.”

The decision centered on Section 362 of the German Criminal Code. This section allowed for instances in which the state could reopen criminal proceedings against an individual after final judgement. Originally, the law allowed four reasons for reopening a case: forgery of documents, false statements by a witness, judicial negligence or valid confessions post-trial. In 2021, the Bundestag added a fifth provision. Under that reform, cases are subject to reopening on the condition that new evidence in connection to murder, genocide, a crime against humanity or a war crime against a person became available. The provision addressed new forensic and investigative techniques used to solve older cases without convictions.

However, the court found the 2021 reform conflicted with Article 103 of the Basic Law. The majority stated the purpose of the law is to “ensure legal certainty” and guarantee German citizens protection from criminal double jeopardy. The court said that “[w]hen a due and proper judicial decision is handed down, the legal certainty thereby achieved extends to the assumption that the outcome will not be called into question if new facts or evidence come to light.” The original four provisions of section 362 remain in effect as each provision relates to a “deficiency” in the original case that impacted justice.

The court addressed concerns from victim’s families by stating that their desire for justice was not an appropriate reason for the legislature to broaden statutory framework in order to obtain “substantively more correct justice.”

The law at issue was challenged by a man recharged in a 1981 murder and rape case for which he was acquitted due to lack of evidence.