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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 14 July 2022, 2 BvR 900/22 [CODICES] |
Second Senate
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Summary:I. The application for preliminary injunction was lodged in constitutional complaint proceedings concerning the reopening of criminal proceedings for murder. The original proceedings concluded 40 years ago and ended with an acquittal of the accused.
The complainant is accused of the 1981 rape and murder of a 17-year-old girl. Criminal proceedings were brought against the complainant and resulted in an acquittal in 1983. In February 2022, criminal proceedings against the complainant were reopened as a result of the enactment of § 362.5 of the Code of Criminal Procedure, which came into force on 30 December 2021. This provision allows the reopening of criminal proceedings after an acquittal if new facts or evidence come to light that, alone or in connection with earlier evidence collected, constitute compelling grounds for the acquitted person to be convicted of murder under specific aggravated circumstances (§ 211 of the Criminal Code), genocide, crimes against humanity or war crimes. Prior to this provision coming into force, there was no legal basis for reopening the case against the complainant.
In his application for a preliminary injunction, filed together with the constitutional complaint, the complainant sought to enjoin the warrant for his arrest pending the resolution of his constitutional complaint against § 362.5 of the Code of Criminal Procedure.
II. The Second Senate of the Federal Constitutional Court suspended the arrest warrant under the condition that suitable measures, less intrusive than remand detention, be taken to minimize the risk of the complainant absconding to evade prosecution.
This decision was based on a weighing of consequences: the Court found that the disadvantages that would arise if the preliminary injunction were not granted but the constitutional complaint in the principal proceedings ultimately was successful outweighed the disadvantages that would arise if the preliminary injunction sought were granted but the constitutional complaint ultimately was unsuccessful.
In the pending constitutional complaint proceedings, the complainant asserts a violation of the principle of ne bis in idem under Article 103.3 of the Basic Law.
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