D“The Senate is aware that this result is painful and certainly not easy to accept for the relatives of the student killed in 1981 and in particular for the co-plaintiff in the original proceedings,” said the Vice President of the Federal Constitutional Court and Chairwoman of the Second Senate on Tuesday when the court delivered its verdict announced for the resumption of criminal proceedings.
Doris König may have understated this. Until his death last year, Hans von Möhlmann, the father of Frederike von Möhlmann, who was murdered in 1981, had campaigned for the introduction of the now overturned readmission regulation in order to be able to bring the suspect from that time back to court.
Around 180,000 people signed the internet petition that the father started so that the legislature would expand the strict requirements for resuming criminal proceedings. “I can say that time does not create peace in the heart,” the sister of the killed student said at the Federal Constitutional Court hearing in May 2023.
However, from the Senate’s perspective, the controversial provision for the retroactive reopening of criminal trials (Section 362 No. 5 of the Code of Criminal Procedure) could not stand due to new facts and evidence. The legislature’s attempt to enable justice in individual cases failed because of the basic law’s requirement that no one may be punished or prosecuted more than once for the same act. The judges also complained about a violation of the constitutional ban on enacting retroactive criminal laws.
The constitutional legislature has decided that legal certainty based on a legally binding judgment should have absolute priority over considerations of justice, explained Vice President König in her introduction. The fundamental right to be protected from renewed persecution after an acquittal serves the freedom and human dignity of the person concerned. “It prevents him from being made the mere object of determining the true facts of the case and from constantly having to expect, after a legally binding acquittal, to be subjected to criminal proceedings again with the associated burdens,” argued the Chairwoman of the Second Senate.
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Insofar as a right to effective criminal prosecution is to be recognized, this is in any case “not aimed at a specific result, such as a conviction or the determination of the absolute truth”. The law enforcement agencies are only obliged to take effective action. “Therefore, the trust of the victims or their relatives in effective criminal prosecution under the rule of law cannot be shaken by such acquittals,” said König, outlining the court’s logic.
Even when it comes to the most serious crimes and doubts about the justification of acquittal increase due to new criminological possibilities, its continued existence does not lead to a result that is “absolutely intolerable,” as the legislature has argued. Rather, constitutionally, everyone can trust that they will not be prosecuted again for the same offense after the legally binding conclusion of regular criminal proceedings, emphasized König.
The case that gave rise to the decision dates back more than 40 years. Frederike von Möhlmann had been hitchhiking on her way home near Celle when she was raped and stabbed to death in a forest. The family had hoped that the murder suspect would be tried again under the 2021 “Material Justice Restoration Act”.
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