Headnotes

to the Judgment of the Second Senate of 31 October 2023

- 2 BvR 900/22 -

Reopening of criminal proceedings after acquittal

1. The right in Art. 103(3) of the Basic Law, which is equivalent to a fundamental right, prohibits multiple prosecution for the same act, not just multiple punishment for the same act. This ‘double jeopardy rule’ protects convicted and acquitted persons alike.

2. If the legislator creates the statutory preconditions for renewed criminal prosecution by allowing for the reopening of criminal proceedings, it must also observe this right.

3. The double jeopardy rule in Art. 103(3) of the Basic Law is the manifestation of the decision that, within the scope of this provision, legal certainty takes precedence over substantive justice. This constitutional decision of priority cannot be qualified by balancing the double jeopardy rule with other constitutional interests. In this respect, the legislator is afforded no leeway in designing the statutory framework for the reopening of criminal proceedings.

4. Art. 103(3) of the Basic Law is a specific, narrowly defined manifestation of the protection of legitimate expectations vis-à-vis legally binding decisions. It protects the individual solely against renewed criminal prosecution under the general criminal laws in cases where a German criminal court has already handed down a final judgment for the same act.

5. Within this limited scope of protection, Art. 103(3) of the Basic Law does not prohibit the legislator from allowing criminal proceedings to be reopened against convicted or acquitted persons generally, but it does prohibit retrials on the grounds of new facts or evidence.

6. Acquitted persons have the right to expect that the finality of their acquittal can only be overridden on the basis of the law as it stood at the time when the decision became final. The principle of ne bis in idem recognises that legitimate expectations vis-à-vis acquittals merit protection. Art. 103(3) of the Basic Law grants them constitutional protection .

FEDERAL CONSTITUTIONAL COURT

- 2 BvR 900/22 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld,

Wallrabenstein,

Fetzer,

Offenloch

held on the basis of the oral hearing of 24 May 2023:

Judgment:

1. 1. § 362 no. 5 of the Code of Criminal Procedure as amended by the Act Amending the Code of Criminal Procedure – Expansion of the Possibilities to Reopen Proceedings Against Convicted Persons pursuant to § 362 of the Code of Criminal Procedure and Modification of the Statute of Limitations under Civil Law (Act to Obtain Substantive Justice) of 21 December 2021 (Federal Law Gazette I page 5252) is incompatible with Art. 103(3) of the Basic Law, also in conjunction with the constitutional principle of the protection of legitimate expectations (Art. 20(3) of the Basic Law), and is void.

2. 2. The Order of the Celle Higher Regional Court of 20 April 2022 - 2 Ws 62/22, 2 Ws 86/22 - and the Order of the Verden Regional Court of 25 February 2022 - 1 Ks 148 Js 1066/22 (102/22) - violate the complainant’s right – which is equivalent to a fundamental right – under Art. 103(3) of the Basic Law, also in conjunction with the constitutional principle of the protection of legitimate expectations (Art. 20(3) of the Basic Law). They are reversed. The matter is remanded to the Verden Regional Court.

3. 3. The preliminary injunction of 14 July 2022, reissued by the Order of the Senate of 16 June 2023, is no longer applicable.

4. 4. The Federal Republic of Germany and the Land Lower Saxony must reimburse the complainant for necessary expenses incurred in the constitutional complaint and preliminary injunction proceedings.

Reasons:

The constitutional complaint concerns the questions of whether the reopening of criminal proceedings to the detriment of a finally acquitted person if new facts or evidence have emerged is compatible with Art. 103(3) of the Basic Law (Grundgesetz – GG) and of whether the new provision is applicable with retroactive effect.

A.

I.

1. The reopening of criminal proceedings to the detriment of a defendant is governed by § 362 of the Code of Criminal Procedure (Strafprozessordnung – StPO). A further constellation was added to this provision (under no. 5) when the Act Amending the Code of Criminal Procedure – Expansion of the Possibilities to Reopen Proceedings Against Convicted Persons pursuant to § 362 of the Code of Criminal Procedure and Modification of the Statute of Limitations under Civil Law (Act to Obtain Substantive Justice, Gesetz zur Herstellung materieller Gerechtigkeit ) of 21 December 2021 (Federal Law Gazette, Bundesgesetzblatt – BGBl I page 5252) was enacted. The provision now reads as follows:

§ 362 of the Code of Criminal Procedure – Reopening to convicted person’s detriment

The reopening of proceedings concluded by final judgment to the defendant’s detriment is admissible

1. if a document produced as genuine, for his or her benefit, at the main hearing was false or forged;

2. if a witness or expert, when giving testimony or an opinion for the defendant’s benefit, was guilty of intentional or negligent breach of the duty imposed by oath or of intentionally making a false, unsworn statement;

3. if a judge or lay judge who participated in reaching the judgment was guilty of a culpable breach of official duties in relation to the case;

4. if the person acquitted makes a credible confession, in or out of court, that he or she committed the offence;

5. if new facts or evidence are produced which, independently or in connection with evidence which was previously taken, establish cogent reasons that the acquitted defendant will be convicted of murder under aggravating circumstances (§ 211 of the Criminal Code), genocide (§ 6(1) of the Code of Crimes against International Law), a crime against humanity (§ 7(1) nos. 1 and 2 of the Code of Crimes against International Law) or a war crime against a person (§ 8(1) no. 1 of the Code of Crimes against International Law).

2. […]

3. […]

a) […]

b) […]

c) The insertion of § 362 no. 5 into the Code of Criminal Procedure by the Act to Obtain Substantive Justice of 21 December 2021 was [...] prompted by the case at issue here (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 162, 358 <361 para. 7> – Reopening of criminal proceedings after acquittal, preliminary injunction ). The explanatory memorandum to the Act states as follows (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 19/30399, p. 9 f.):

A clearly unjustified acquittal of someone accused of murder under specific aggravating circumstances or of the listed crimes under the Code of Crimes against International Law (Völkerstrafgesetzbuch ) compromises the peaceful legal order (Rechtsfrieden ) and the public’s sense of justice at least as severely as the conviction of an innocent defendant does. Even if just one acquittal – for example in the case of a serial killer – later turns out to be false based on new investigation techniques, this can have lasting adverse effects on the peaceful legal order and the public’s confidence in the criminal justice system. This is shown by the case of the murdered Frederike von Möhlmann. Her case has prompted a petition for the reform of the legal framework on the reopening of criminal proceedings, which has already been signed by about 180,000 people.

4. […]

5. […]

6. The Federal Constitutional Court submitted a request to the European Commission for Democracy through Law (Venice Commission) regarding the law in relation to the principle of ne bis in idem and the reopening of criminal proceedings. In most states that replied, the ne bis in idem principle is enshrined in constitutional law, at least on the basis of Art. 4 of the 7th Protocol to the European Convention on Human Rights. Regarding the permissibility of the reopening of criminal proceedings, the replies revealed a mixed picture, not least because the various legal orders make different distinctions between criminal law sanctions and administrative or disciplinary sanctions or between different types of conclusion of proceedings. Moreover, there are different time limits for a reopening of proceedings, either because prosecution of the offence in question is time-barred or there are time limits relating to the finality of the judgment; insofar as a reopening is possible if new facts or evidence have emerged (propter nova ), a limitation period from the time this has become known must be observed in some states.

In seven of the states analysed ([…]), reopening criminal proceedings against the person concerned is generally impermissible. In another seven states, it is limited to cases where evidence was forged, false statements were made or other procedural errors were committed, such as corruption, bribery or abuse of office (propter falsa ). By contrast, in 17 states, reopening criminal proceedings against the person concerned is possible when new facts or evidence have emerged (propter nova ), with some differences between states regarding the details.

II.

1. In a final judgment […] handed down by the Stade Regional Court on 13 May 1983, the complainant was cleared of the charges of rape and murder under specific aggravating circumstances. Following the enactment of § 362 no. 5 of the Code of Criminal Procedure, the competent public prosecution office filed an application with the Verden Regional Court (hereinafter: Regional Court) in February 2022 for criminal proceedings to be reopened pursuant to this provision and for an arrest warrant to be issued. In an order dated 25 February 2022, the Regional Court declared the application for reopening the case to be admissible and ordered the complainant to be remanded in custody. By order of 20 April 2022, the Celle Higher Regional Court (hereinafter: Higher Regional Court) dismissed the appeal against this decision (cf. for more details BVerfGE 162, 358 <360 ff. para. 2 ff.>).

2. The complainant lodged a constitutional complaint challenging the orders of the Higher Regional Court and the Regional Court and indirectly challenging § 362 no. 5 of the Code of Criminal Procedure. He asserted a violation of his rights under Art. 103(3) and Art. 2(1) in conjunction with Art. 20(3) of the Basic Law.

[…]

III.

In response to the complainant’s application for a preliminary injunction, the Senate – by order of 14 July 2022 (BVerfGE 162, 358), and again by order of 20 December 2022 – suspended the Regional Court’s arrest warrant of 25 February 2022 subject to certain conditions. By order of 16 June 2023, it extended the preliminary injunction without conditions.

IV.

The opportunity to submit a statement was given to the Bundestag , the Bundesrat , the Federal Chancellery, the Federal Ministry of the Interior and Community, the Federal Ministry of Justice, the Land governments, the Federal Court of Justice (Bundesgerichtshof ), the joint plaintiff (Nebenklägerin ) in the initial proceedings, the Public Prosecutor General (Generalbundesanwalt ) at the Federal Court of Justice, the Director of the Department of Criminal Law at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg, the Federal Bar Association (Bundesrechtsanwaltskammer ), the German Lawyers’ Association (Deutscher Anwaltverein e.V. ), the German Association of Judges (Deutscher Richterbund e.V. ), the New Association of Judges (Neue Richtervereinigung e.V. ), the Office of the Association of Defence Lawyers (Organisationsbüro der Strafverteidigervereinigungen ) and the Working Group of German, Austrian and Swiss Criminal Law Professors (Arbeitskreis deutscher, österreichischer und schweizerischer Strafrechtslehrer ) […].

[…]

The Federal Constitutional Court conducted an oral hearing on 24 May 2023, in the course of which the parties explained and expanded upon their submissions. The following experts were heard: the Director of the Department of Criminal Law at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg, Professor Dr. (…), Professor Dr. (…) of the University of Augsburg, Lawyer (…) for the Office of the Association of Defence Lawyers and Professor Dr. (…) as a member of the federal board of the victim support organisation WEISSER RING e.V.

B.

The constitutional complaint is admissible. […]

C.

The constitutional complaint is well-founded. The reopening of criminal proceedings against the complainant is unconstitutional. Its legal basis – § 362 no. 5 of the Code of Criminal Procedure, which is indirectly challenged here – violates Art. 103(3) of the Basic Law (Grundgesetz – GG) (see I. below). In addition, the application of this provision to acquittals that were already final at the time the provision entered into force on 30 December 2021 violates the prohibition of retroactivity following from Art. 103(3) in conjunction with Art. 20(3) of the Basic Law (see II. below).

I.

I. § 362 no. 5 of the Code of Criminal Procedure violates Art. 103(3) of the Basic Law. The latter contains a right – equivalent to a fundamental right – which prohibits the legislator from enacting provisions that allow criminal proceedings to be reopened to a person’s detriment on the grounds that new facts or evidence have emerged (see 1. below). § 362 no. 5 of the Code of Criminal Procedure is not compatible with this right (see 2. below).

1. Art. 103(3) of the Basic Law contains a double jeopardy rule that must also be observed by the legislator (see a) below). This constitutional decision, which prioritises legal certainty over substantive justice, is exempt from any balancing and does not afford the legislator any leeway with regard to the legal framework for the reopening of criminal proceedings (see b) below). Given the preclusion of balancing, Art. 103(3) of the Basic Law must be interpreted narrowly. Within its scope of protection, it bars the legislator from providing for the possibility of reopening criminal proceedings to a person’s detriment if new facts or evidence have emerged (see c) below).

a) While Art. 103(3) of the Basic Law is directly addressed to the criminal courts and prosecution authorities, it also grants convicted and acquitted persons an individual right (see aa) below). If the legislator creates a statutory framework for renewed criminal prosecution, it must likewise adhere to Art. 103(3) of the Basic Law (see bb) below).

aa) The principle that no person may be punished more than once for the same criminal act (ne bis in idem ) describes the double jeopardy rule – a procedural obstacle that criminal courts and prosecution authorities must observe ex officio at every stage of the criminal proceedings (cf. BVerfGE 56, 22 <32>; 162, 358 <371 f. para. 46>). Insofar as this principle applies to renewed criminal prosecution under the general criminal laws, it is elevated by Art. 103(3) to the status of a constitutional prohibition (cf. BVerfGE 3, 248 <251 f.>; 12, 62 <66>; 23, 191 <202>; 56, 22 <32>). Art. 103(3) of the Basic Law sets out the abstract principle of ne bis in idem as a concrete right that is equivalent to a fundamental right. It affords protection to the individual which they can assert as an individual legal position (cf. BVerfGE 56, 22 <32>; 162, 358 <371 para. 46>; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 13, 7 <11>; cf. also BVerfGE 3, 248 <252>).

This protection is afforded to convicted and acquitted persons alike (see (1) below) and precludes renewed criminal prosecution in itself (see (2) below).

(1) The right under Art. 103(3) of the Basic Law protects not just convicted, but also acquitted persons (cf. BVerfGE 12, 62 <66>; 162, 358 <371 para. 46>; BVerfGK 9, 22 <26>).

It is true that the wording of Art. 103(3) of the Basic Law does allow for the interpretation that this provision only applies if the person concerned has previously been convicted. However, restricting the right to convicted persons was not envisaged by the drafters of the Constitution (see (a) below), nor do the criminal courts and law enforcement authorities apply the provision in this sense (see (b) below). Such an interpretation would also run counter to the purpose of the right (see (c) below).

(a) The provision’s legislative history suggests that acquittals should be included in the scope of protection of Art. 103(3) of the Basic Law.

The legislative materials show that the Parliamentary Council unanimously intended the inclusion of the ne bis in idem principle in the Basic Law to also provide protection from renewed prosecution, and thus also following acquittal. A different assessment is not merited by the fact that the Parliamentary Council ultimately opted for the phrase that ‘no person may be punished (...) more than once’.

While the Chairman of the Committee on the Constitutional Court and the Administration of Justice, Zinn, opposed the originally proposed wording ‘No person may be criminally prosecuted more than once’ at the end of the deliberations of the Committee’s 8th session, neither the proposal nor the reply addressed the difference between ‘punished’ and ‘prosecuted’. Instead, Zinn only objected to the term ‘criminally’, which he considered to be too far-reaching, preferring the term ‘under the general criminal laws’ (cf. Minutes of the 8th Session of the Committee on the Constitutional Court and the Administration of Justice of 7 December 1948, […]). He was making reference to the previously debated idea that the constitutional prohibition should be restricted to criminal punishment and was alluding to the desire to find a phrase under which other punishments under disciplinary, administrative, police and tax law would remain permissible (cf. Minutes of the 7th and 8th Session of the Committee on the Constitutional Court and the Administration of Justice of 6 and 7 December 1948, […]). At the beginning of the 8th Committee meeting, Zinn continued to make no distinction between ‘punished’ and ‘prosecuted’; rather, he emphasised – without any objections by other Committee members – that the fundamental idea behind the ne bis in idem principle was that ‘no person may be repeatedly prosecuted for the same act’ (cf. Minutes of the 8th Session of the Committee on the Constitutional Court and the Administration of Justice of 7 December 1948, […]). The discussions in the previous 7th Committee meeting also suggest that acquittals should fall under the prohibition of Art. 103(3) of the Basic Law. One speaker used the very example of an acquittal in criminal proceedings to illustrate the many problematic options possible between criminal punishment, which was to be covered by the constitutional prohibition, and other punishment, which was to remain permissible (cf. Minutes of the 7th Session of the Committee on the Constitutional Court and the Administration of Justice of 6 December 1948, […]).

This interpretation is also supported by the historical background in light of the Nazi regime. The inclusion of the principle of ne bis in idem in the Basic Law was meant to counteract the countless negations of the principle of res judicata that had taken hold during the Nazi regime (cf. Draft of a Basic Law of the Constitutional Convention of the Conference of Minister-Presidents of the Western Occupation Zones at Herrenchiemsee from 10 to 23 August 1948 – descriptive part, p. 56; Minutes of the 8th Session of the Committee on the Constitutional Court and the Administration of Justice of 7 December 1948; BVerfGE 56, 22 <32>; […]). These negations were directed against acquitted persons in particular. One feature of the Nazi tyranny was that ‘acquittal by a judge did not result in freedom for the acquitted person’ ([…]). Although only the so-called addenda to judgments were mentioned in the deliberations of the Parliamentary Council (cf. Minutes of the 8th Session of the Committee on the Constitutional Court and the Administration of Justice of 7 December 1948, […]), there are no indications that the constitutional prohibition on lifting the finality of court decisions should be limited to these ([…]).

Rather, the drafters of the Constitution had in mind the ne bis in idem principle in its broad form as shaped by the Reich Court (Reichsgericht ) (cf. BVerfGE 3, 248 <252>; 9, 89 <95 f.>; 12, 62 <66>; 56, 22 <27 f., 34>). While the Reich Code of Criminal Procedure of 1877 and in particular the Weimar Constitution did not expressly lay down the ne bis in idem principle, both legal frameworks considered it as an inherent element [of the legal order] (cf. BVerfGE 3, 248 <251>; […]). Thus, from the outset, the Reich Court assumed that this principle applied, understanding it as a prohibition on being prosecuted more than once (cf. […]; BVerfGE 3, 248 <251>); it also applied this principle to acquittals ([…]). Art. 103(3) of the Basic Law makes reference to this pre-constitutional procedural law and its interpretation by the courts. The inclusion of the ne bis in idem principle in Art. 103(3) of the Basic Law was not meant to alter this principle (cf. BVerfGE 3, 248 <252>; 9, 89 <96>; 12, 62 <66>; 23, 191 <202 f.>; 56, 22 <27 f., 34>).

Moreover, at the time of the Parliamentary Council’s deliberations, most of the new Land Constitutions included the principle of ne bis in idem and set it out in similar ways ([…]). There is no evidence that any of them considered the exclusion of acquittals. For this reason, too, it cannot be assumed that the Parliamentary Council intended to limit the constitutional protection to convicted persons.

(b) In criminal law practice, Art. 103(3) of the Basic Law is considered as enshrining the ne bis in idem principle in the Basic Law. It is applied equally to convictions and acquittals, and this is not considered in any way problematic. Constitutional scholars have adopted this understanding.

In terms of criminal law history, the ne bis in idem principle, enshrined in Art. 103(3) of the Basic Law, is closely related to the presumption of innocence ([…]). It is to be understood as a counter-principle to the inquisitorial principle of ordinary law and was reintroduced in the course of the Enlightenment ([…]). The inquisitorial principle was characterised by an absolute claim to truth and by the individual’s role as a mere object of inquisition. This manifested itself, in particular, in the procedural option of absolutio ab instantia. This only meant a temporary suspension of the proceedings and, in principle, allowed the case to be reopened at any time in the event of new findings. By contrast, a key feature of prosecutorial proceedings was to replace the endlessness of the proceedings under the inquisitorial principle by the unconditional conclusion of all criminal proceedings. Especially when guilt could not be proven, the idea was that the criminal proceeding should be permanently concluded rather than temporarily suspended. Acquittals were given substance in that they ‘confirmed’ that the presumption of innocence guiding the proceedings had not been rebutted. The principle of ne bis in idem is therefore especially aimed at protecting persons acquitted for lack of evidence. It safeguards the ‘fundamental precept’ ([…]) under the rule of law that the principle in dubio pro reo is to be applied in cases where doubts as to someone’s guilt cannot be refuted; in this respect, the possibility of error is accepted to protect innocent people – even if this might also benefit someone who is actually guilty ([…]). That is why in criminal law practice, the ne bis in idem principle has always been applied to acquittals, too ([…]).

(c) This understanding of Art. 103(3) of the Basic Law gives effect to its nature as an individual right equivalent to a fundamental right. Regardless of its outcome, any criminal proceeding places a considerable burden on the individual. The protection provided under this right, which is equivalent to the protection afforded by a fundamental right, serves to guarantee that every person will only be subject to these burdens once for the same act (cf. BVerfGE 56, 22 <31>; BVerfGK 4, 49 <53>). The aim of Art. 103(3) of the Basic Law is to prevent criminal proceedings from interfering with fundamental rights; the provision thus guarantees that criminal prosecution is only conducted once ([…]), and not just that punishment is only imposed once. Individuals are to be able to rely on the expectation that the state will not prosecute them again in a specific case and that they will not be subjected to the burdens resulting from criminal proceedings again (cf. BVerfGE 56, 22 <31>).

(2) The legislative history and the purpose of Art. 103(3) of the Basic Law also reveal that, beyond its wording, the provision grants protection not only from conviction, but includes protection against any measures whose purpose is a potential conviction (cf. BVerfGE 12, 62 <66>; 23, 191 <202>; 65, 377 <381>; 162, 358 <371 para. 46>; BVerfGK 4, 49 <52>; 13, 7 <11>). Art. 103(3) of the Basic Law prohibits multiple prosecution for the same act, not just multiple punishment for the same act.

The aim of criminal proceedings is the enforcement of the state’s power to punish crime to protect the interests of individuals and of the general public by conducting judicial (justizförmig ) proceedings and to thereby bring about fair punishment that matches the crime (cf. BVerfGE 133, 168 <198 f. para. 55 f.>). Criminal proceedings cannot perform this function, if, in a retrial, an offender cannot be punished due to the ne bis in idem principle. Without the possibility of punishment, there is no sufficient legitimation for imposing the burdens resulting from criminal proceedings on the individual. Criminal proceedings conducted for their own sake, without the possibility of punishment, would turn the individual into a mere object of criminal prosecution (cf. BVerfGE 133, 168 <197 ff. para. 53 ff.>). In terms of criminal procedure, Art. 103(3) of the Basic Law therefore amounts to a procedural obstacle which precludes renewed criminal prosecution in itself (cf. BVerfGE 56, 22 <32>; 162, 358 <371 f. para. 46>; BVerfGK 13, 7 <11>).

bb) If the legislator creates the statutory preconditions for renewed criminal prosecution by allowing for the reopening of criminal proceedings, it must also observe Art. 103(3) of the Basic Law (cf. BVerfGE 15, 303 <307>).

When deciding to include Art. 103(3) in the Basic Law, the Parliamentary Council did not just have in mind the judgments and persecution carried out during the Nazi regime, but also the legal remedies expressly created by the Nazis to negate the finality of court decisions ([…]). As a right that is equivalent to a fundamental right, Art. 103(3) of the Basic Law is therefore intended to directly bind the legislator pursuant to Art. 1(3) of the Basic Law, just like the fundamental rights in the first chapter of the Basic Law.

The double jeopardy rule that Art. 103(3) of the Basic Law imposes on criminal prosecution authorities would be practically meaningless if the legislator were able to design the law on the reopening of proceedings in a way that permitted renewed criminal prosecution and possibly conviction (cf. BVerfGE 15, 303 <307>; […]). […]

b) The double jeopardy rule in Art. 103(3) of the Basic Law is the manifestation of the decision that, within the scope of this provision, legal certainty takes precedence over substantive justice (see aa) below). This constitutional decision of priority cannot be qualified by balancing the double jeopardy rule with other constitutional interests (see bb) below). In this respect, the legislator is afforded no leeway in designing the statutory framework for the reopening of criminal proceedings (see cc) below).

aa) Within its scope, Art. 103(3) of the Basic Law gives precedence to the principle of legal certainty over the principle of substantive justice.

All decisions made in accordance with the rule of law are governed by the principle of finality (cf. BVerfGE 2, 380 <392 ff., 403 ff.>; 60, 253 <269 ff.>). It becomes particularly significant when the decision in question is incorrect in substantive law terms or has become incorrect due to changes in the factual basis (cf. BVerfGE 2, 380 <403 ff.>; 20, 230 <235>; 35, 41 <58>; 117, 302 <315>). If an administrative decision is out of line with its legal basis, there are different possibilities of retroactively suspending or amending such a decision in order to (re-)establish conformity with the legal basis ([…]). Nonetheless, in the interest of a peaceful legal order and of legal certainty, the finality of acts of the state, in particular of court decisions, can in principle no longer be touched, irrespective of whether the decisions are substantively correct (cf. BVerfGE 2, 380 <403 ff.>). If the finality of a decision benefits its addressees, the principle of finality is reinforced by the protection of legitimate expectations as an individual right ([…]). In these cases, there is a tension between the finality of decisions on the one hand, and the principle of substantive correctness and justice on the other (cf. BVerfGE 22, 322 <329>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 14 September 2006 - 2 BvR 123/06 inter alia -, juris, para. 17; Order of the Third Chamber of the Second Senate of 13 February 2019 - 2 BvR 2136/17 -, para. 20).

Given that both the principle of substantive justice and the principle of legal certainty are constitutional principles, it is generally for the legislator to determine which of the two principles should be given priority in a specific case (cf. BVerfGE 3, 225 <237>; 15, 313 <319>; 22, 322 <329>; 131, 20 <46 f.> with further references). However, this does not apply in scenarios where the decision is laid down in the Basic Law itself (cf. regarding Art. 117(1) of the Basic Law BVerfGE 3, 225 <238 f.>). Art. 103(3) of the Basic Law does contain such a decision. In declaring under Art. 103(3) that no person may be punished for the same act more than once, the Basic Law itself determines that, within the scope of this provision, namely for judgments in criminal proceedings, the principle of legal certainty takes precedence over the principle of substantive justice .

bb) The decision to give precedence to legal certainty in Art. 103(3) of the Basic Law is absolute. The right in Art. 103(3) of the Basic Law is thus exempt from any balancing. It is true that other conclusions are possible when looking only at the provision’s wording (see (1) below) and legislative history (see (2) below). However, it follows from the systematic perspective (see (3) below) and the spirit and purpose (see (4) below) of the provision that this decision in the Basic Law applies without exception. The case-law of the Federal Constitutional Court does not merit a different assessment (see (5) below).

(1) The wording is both succinct and rigid, suggesting that the protection afforded by Art. 103(3) of the Basic Law is absolute ([…]). However, several other fundamental rights and rights that are equivalent to fundamental rights also do not contain any express reservations or restrictions. It is nevertheless recognised that they are subject to the limitations inherent in the Basic Law.

(2) The provision’s legislative history also allows different conclusions to be drawn. On the one hand, the ne bis in idem principle was expressly enshrined in Art. 103(3) of the Basic Law in response to the Nazi era, where other aims prevailed over the finality of court decisions (cf. para. 64 above). On the other hand, Art. 103(3) of the Basic Law reflects the procedural law as it stood at the time of the Basic Law’s entry into force and its interpretation in the settled case-law at the time (cf. para. 65 above). In the case-law of the Reich Court, the postulate of ne bis in idem was adopted as a principle that served to interpret the specific provisions of procedural law. Thereby, it was regarded as having been observed or restricted to varying degrees ([...]).

(3) From the systematic perspective, however, Art. 103(3) of the Basic Law does not allow any balancing of interests.

Art. 103(3) of the Basic Law is a specific manifestation of the protection of legitimate expectations rooted in the principle of the rule of law, which applies exclusively to criminal proceedings. As a special provision with its own substance, Art. 103(3) of the Basic Law affords protection that goes beyond the protection provided by the general principles which protect legitimate expectations vis-à-vis final decisions in general and which prevent excessive impairment of the individual’s interests. The farther-reaching nature of this protection lies in the fact that it enjoys unconditional priority over other – in principle legitimate – interests which the legislator could take into consideration in other areas not subject to Art. 103(3) of the Basic Law (cf. para. 77 above).

In terms of this unconditional quality, Art. 103(3) of the Basic Law corresponds to Art. 103(2) of the Basic Law. The application of the latter provision is also limited to criminal law, distinguishing it from general constitutional principles. As a specific application of the general prohibition of retroactivity, and unlike the general prohibition, Art. 103(2) of the Basic Law prohibits the legislator from enacting retroactive criminal laws without exception. This specific prohibition of retroactivity is thus absolute and exempt from any balancing (cf. BVerfGE 30, 367 <385>; 95, 96 <132>; 109, 133 <171 f.>). An understanding of Art. 103(3) of the Basic Law that accords this provision similar absolute validity as Art. 103(2) of the Basic Law complements the protection afforded to the individual in the field of criminal law by adding a procedural dimension to the substantive protection.

Art. 103(2) and (3) of the Basic Law are closely related to the fundamental freedoms that protect individuals not just during criminal proceedings but also against the very possibility of criminal proceedings. There is no need for this protection to be specified in statutory provisions. In this respect, Art. 103(2) and (3) of the Basic Law differ from the rights aimed at guaranteeing legal protection – such as the right to be heard (Art. 103(1) of the Basic Law). The right to be heard, which applies to all types of proceedings, needs to be fleshed out by the legislator in terms of its specific procedural design (cf. BVerfGE 75, 302 <313 f.>; 89, 28 <35 f.>; 119, 292 <296>).

The same applies to other rights in criminal proceedings rooted in the Constitution that, unlike Art. 103(3) of the Basic Law, were not expressly laid down in the Basic Law. These are the presumption of innocence (cf. BVerfGE 38, 105 <111>; 122, 248 <271 f.>; 133, 168 <200 f. para. 59>) and the right to a fair trial (cf. BVerfGE 38, 105 <111>; 122, 248 <271 f.>; 133, 168 <200 f. para. 59>), including its components such as the principle of nemo tenetur (cf. BVerfGE 38, 105 <113 f.>; 55, 144 <150 f.>; 56, 37 <43>; 110, 1 <31>; 133, 168 <201 para. 60>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 25 January 2022 - 2 BvR 2462/18 -, para. 50 ff.), the principle of in dubio pro reo (cf. BVerfGK 1, 145 <149>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 20 June 2007 - 2 BvR 965/07 -, para. 3; cf. also BVerfGE 9, 167 <169>; 35, 311 <320>; 74, 358 <371>; 133, 168 <199 para. 56>; 140, 317 <345 para. 57>) and the principle of equality of arms (cf. BVerfGE 110, 226 <253>; 133, 168 <200 para. 59>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 12 November 2020 - 2 BvR 1616/18 -, para. 32). These elements guarantee that the accused is treated as a subject and not an object. Thus, it is inherent in these principles that their scope depends on the design of the specific proceedings. Therefore, these constitutional principles do not contain requirements or prohibitions that are fleshed out in detail, but, in terms of their effect on procedural law, must be specified on the basis of the circumstances of the specific case, primarily by the legislator (cf. BVerfGE 74, 358 <371 f.>; 133, 168 <202 para. 61> with further references). By contrast, Art. 103(3) of the Basic Law is intended to prevent a situation where, after proceedings have been concluded by final decision, proceedings are reopened against the persons concerned, returning them to the role of the accused with all the burdens this entails.

(4) The spirit and purpose of Art. 103(3) of the Basic Law likewise suggest that it enjoys absolute priority. Both the purpose served by Art. 103(3) of the Basic Law vis-à-vis the individual and its purpose vis-à-vis society require that the decision in favour of legal certainty be binding. The protection afforded by the provision cannot therefore be qualified.

As an individual right, the main purpose of Art. 103(3) of the Basic Law is to ensure legal certainty for the individual by restricting the state’s power to punish crime (cf. BVerfGE 56, 22 <31 f.>; cf. also BVerfGE 3, 248 <253 f.>). Individuals should be able to rely on the expectation that they cannot be prosecuted again after a judgment has been handed down in an adjudicated case (cf. BVerfGE 56, 22 <31>). The right thus also serves to uphold the freedom and human dignity of those concerned – just like Art. 103(2) of the Basic Law does (cf. BVerfGE 109, 133 <171 f.>). It prevents the individual from being reduced to a mere object of the investigation of the truth – possibly in the context of a trial that goes on ‘ad infinitum’ ([…]). That is why criminal prosecution is subject to a procedure governed by law, and further criminal prosecution for the same act is ruled out once this procedure has been concluded by a decision on the merits of the case. Art. 103(3) of the Basic Law thus restricts the enforcement of the principle of mandatory prosecution (cf. BVerfGE 56, 22 <31 f.>). This self-restraint on the part of the state adheres to the fundamental rule-of-law principle of creating legal certainty for the individual through the finality of court decisions, and gives effect to it in criminal law, as one of the domains in which state power is most acutely felt. If the legislator were free to strike a different balance between legal certainty and the state’s power to punish crime, Art. 103(3) of the Basic Law would be unable to protect the defendant’s legitimate expectations in the permanence of the judgment handed down and would thus be incapable of guaranteeing legal certainty for the individual.

In addition, the finality of a decision helps to safeguard the peaceful legal order (cf. BVerfGE 2, 380 <403>; 56, 22 <31>; 115, 51 <62>). Independent of the individual’s need for certainty, there is a need for society as a whole to have legal situations permanently settled ([...]). For this reason, the modern constitutional order has decided against pursuing the ideal of absolute truth and has opted instead to confine legal action to a relative form of truth as established in due and proper legal proceedings. Even criminal law does not demand that the truth be ascertained ‘at all costs’ ([...]). In this respect, finality safeguards the lasting claim to validity of court decisions. Legal remedies take account of the fact that any decision can be flawed and therefore in need of rectification; they thus strengthen the guarantee of correctness. That said, the possibility of continuing proceedings incessantly through legal remedies, or the possibility of reopening proceedings and thus starting them anew, would allow constant doubts as to the correctness of the judgment and thus adversely affect the confidence placed in the effectiveness of dispute resolution through jurisprudence.

(5) The case-law of the Federal Constitutional Court confirms the interpretation of Art. 103(3) of the Basic Law as an absolute prohibition that is exempt from any balancing.

In its past decisions, the Federal Constitutional Court did not balance Art. 103(3) of the Basic Law with other constitutional values and did not state that the interest protected by Art. 103(3) of the Basic Law could be balanced with other constitutional interests. Rather, the Court’s decisions relating to this provision are concerned with determining its scope of protection. While the starting point for this is the overall structure of criminal procedural law as it stands (cf. BVerfGE 3, 248 <252>; 9, 89 <96>; 12, 62 <66>; 65, 377 <384>), further developments in criminal law doctrine are not ruled out. The Federal Constitutional Court has reacted to such doctrinal developments by ‘adjusting the limits’(‘Grenzkorrekturen’ ) of the scope of the protection afforded by Art. 103(3) of the Basic Law (cf. BVerfGE 56, 22 <34>). These adjustments are made by the Federal Constitutional Court itself, which means that the constitutional review of challenged decisions must be conducted entirely against the standard of Art. 103(3) of the Basic Law (cf. BVerfGE 56, 22 <27 ff.>).

The absolute validity of the provision is also not called into question by the phrase that the pre-constitutional interpretation of the ne bis in idem principle serves as an ‘inherent limitation’ of Art. 103(3) of the Basic Law (cf. BVerfGE 3, 248 <252 f.>). Rather, this phrase reflects the fact that the procedural guarantee of Art. 103(3) included in the Basic Law was primarily shaped by the case-law of the Reich Court, and that its substance can therefore be inferred from this predetermination (cf. BVerfGE 3, 248 <251>). An objection raised in this regard is that this approach poses the risk of ‘eternalising’ the guarantee of Art. 103(3) of the Basic Law ([...]); the Court countered this criticism by interpreting the protection afforded by Art. 103(3) of the Basic Law narrowly and allowing Grenzkorrekturen that, however, do not affect the core of the provision (cf. BVerfGE 56, 22 <34>).

cc) Art. 103(3) of the Basic Law must also be given absolute priority and be exempt from any balancing when considered in relation to the legislator designing the law on the reopening of criminal proceedings. In this respect, the legislator is subject to Art. 103(3) of the Basic Law – just like the criminal prosecution authorities. In principle, it falls to the legislator to give specific shape to the principles arising from the rule of law. The legislator is generally entitled to balance the principle of substantive justice against legal certainty. However, when it comes to shaping the law on the reopening of criminal proceedings, the legislator’s leeway is limited by the prohibition of Art. 103(3) of the Basic Law, which is exempt from any balancing.

c) Given the preclusion of balancing, the right contained in Art. 103(3) of the Basic Law must be interpreted narrowly, in distinction from the generally applicable rule-of-law guarantees (see aa) below). Within its scope of protection, it bars the legislator from providing for the possibility of reopening criminal proceedings to a person’s detriment if new facts or evidence have emerged (see bb) below).

aa) Art. 103(3) of the Basic Law is a specific, narrowly defined manifestation of the protection of legitimate expectations vis-à-vis legally binding decisions (see (1) below). It protects the individual solely against renewed criminal prosecution under the general criminal laws (see (2) below) in cases where the same act (see (3) below) has already led a German court (see (4) below) to hand down a final judgment (see (5) below).

(1) With regard to its narrowly defined scope of protection, Art. 103(3) of the Basic Law is similar to Art. 103(2) of the Basic Law. Art. 103(2) of the Basic law contains an absolute and strict prohibition that is exempt from any balancing (cf. BVerfGE 30, 367 <385>; 95, 96 <132>; 109, 133 <171 f.>). For substantive criminal law, Art. 103(2) of the Basic Law covers specific manifestations of the principle of the rule of law. This applies in particular to the requirement of a statutory provision (Gesetzesvorbehalt ) (cf. BVerfGE 47, 109 <120>; 75, 329 <340 ff.>; 78, 374 <381 f.>; 87, 399 <411>; 126, 170 <194 f.>), the principle of specificity (cf. BVerfGE 25, 269 <285>; 78, 374 <382>; 126, 170 <194 ff.>; 143, 38 <53 f. para. 38>; 159, 223 <292 ff. para. 152 ff.> – Federal pandemic emergency brake I <Curfews and contact restrictions> ), and the prohibition of retroactivity (cf. BVerfGE 25, 269 <286>; 30, 367 <385>; 46, 188 <192 f.>; 81, 132 <135>; 95, 96 <131>; 109, 133 <172>; 156, 354 <388 f. para. 104 f.> – Asset recovery ). Especially with regard to the absolute prohibition of retroactivity, Art. 103(2) of the Basic Law serves its function of guaranteeing the rule of law and of granting a fundamental right through strict formalisation (cf. BVerfGE 95, 96 <96 1st headnote and 131>). The same applies to Art. 103(3) of the Basic Law. This right likewise defines the protection of legitimate expectations, which is aimed at the preservation of the finality of decisions as a manifestation of the principle of the rule of law specifically for criminal law. Just like Art. 103(2) of the Basic Law, Art. 103(3) of the Basic Law ensures its function as a guarantee through strict formalisation.

(2) The double jeopardy rule in Art. 103(3) of the Basic Law only relates to the application of the general criminal laws, i.e. the body of law that concerns crime (cf. BVerfGE 21, 378 <383 f.>; 21, 391 <401 f.>; 27, 180 <185>; 43, 101 <105>; 66, 337 <356 f.>).

Art. 103(3) of the Basic Law is tied to the authoritative legal condemnation, associated with the punishment imposed, in reaction to the culpable violation of a generally guaranteed legal interest and to the disruption of the peaceful legal order (cf. BVerfGE 21, 391 <403>; 43, 101 <105>). Its guarantee concerns state measures that constitute official disapproval of unlawful, culpable behaviour and that impose hardship for the purpose of restitution (cf. BVerfGK 14, 357 <364>; 16, 98 <107>). It thus does not apply to the execution of the sentence (cf. BVerfGE 117, 71 <115>) nor to psychiatric confinement (cf. BVerfGE 55, 28 <30>; BVerfGK 14, 357 <364>; 16, 98 <107>).

However, Art. 103(3) of the Basic Law does not extend to all sanctions that can be described as punishment, but is expressly restricted to sanctions imposed on the basis of the general criminal laws ([…]). According to the documented intent of the drafters of the Constitution (cf. Minutes of the 8th Session of the Committee on the Constitutional Court and the Administration of Justice of 7 December 1948, […]), the general criminal laws only comprise the ‘proper’ criminal law in the sense of the Criminal Code and its ancillary laws, but not the public service law, the law relating to disciplinary measures, the law relating to administrative sanctions, police law and the law relating to the professions (cf. BVerfGE 21, 378 <383 f.>; 21, 391 <401, 403 f.>; 27, 180 <185>; 28, 264 <276 f.>; 43, 101 <105>; 66, 337 <357>). In particular, the prosecution of administrative offences is not subject to the prohibition of Art. 103(3) of the Basic Law (cf. BVerfGE 21, 378 <388>; 43, 101 <105>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 31 May 1990 - 2 BvR 1722/89 -, juris; […]). This applies irrespective of the fact that their sanctioning through fines amounts to punishment and is therefore subject to Art. 103(2) of the Basic Law (cf. BVerfGE 81, 132 <135>; 87, 399 <411>; BVerfGK 11, 337 <349>). Nor does Art. 103(3) of the Basic Law apply to sanctions under administrative law (cf. BVerfGE 20, 365 <372>).

(3) Art. 103(3) of the Basic Law only prohibits renewed criminal prosecution if a judgment handed down by a criminal court concerns the same act, i.e. if it concerns the same historical events – which are therefore limited in terms of time and circumstances – as outlined in the indictment and in the decision to initiate proceedings, and in respect of which the accused is suspected of having committed, or aided and abetted, an offence (cf. BVerfGE 23, 191 <202>; 45, 434 <435>; 56, 22 <28>; BVerfGK 5, 7 <8>; 7, 417 <418>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 15 October 2014 - 2 BvR 920/14 -, para. 26).

(4) The protection of Art. 103(3) of the Basic Law is only engaged by judgments of German criminal courts (cf. BVerfGE 12, 62 <66>; 75, 1 <15 f.>; BVerfGK 13, 7 <11 f.>; 19, 265 <273>). For transnational constellations, it must be examined to what extent double jeopardy is ruled out by international law or by EU law (cf. in this respect BVerfGK 13, 7 <11 f.>; 19, 265 <273>).

(5) Art. 103(3) of the Basic Law only applies following criminal proceedings concluded by a final judgment on the merits of the case (see (a) below). The protection of legitimate expectations resulting from other decisions that led to the final conclusion of criminal proceedings does not form part of the narrow protection afforded by Art. 103(3) of the Basic Law, but must be observed under the general principles (see (b) below).

(a) The prohibition of double jeopardy in Art. 103(3) of the Basic Law is only applicable once a judgment on the merits has been rendered by a criminal court on the basis of a trial hearing. This limitation of the protection is due to the function of criminal trial hearings (cf. BVerfGE 3, 248 <251 f.>; 65, 377 <383>) and is confirmed by the provision’s legislative history.

The central purpose of criminal proceedings is to establish the true facts of the case (cf. BVerfGE 57, 250 <275>; 118, 212 <231>; 122, 248 <270>; 130, 1 <26>; 133, 168 <199 para. 56>). The trial hearing is the centrepiece of a criminal proceeding. It serves to investigate and establish the facts of the case in a conclusive manner. § 244(2) of the Code of Criminal Procedure provides that to establish the truth, the court must ex officio extend the taking of evidence to all facts and evidence that are significant for the decision. According to general experience, the trial hearing offers the greatest possible guarantee that the truth will be established and that the accused will be properly defended, and thus that a fair judgment will be handed down (cf. BVerfGE 65, 377 <383>). It creates the procedural prerequisites for finding whether someone is guilty and, as the case may be, to rebut the presumption of innocence (cf. BVerfGE 74, 358 <372 f.>). It is through the trial hearing that the court establishes the facts that it considers to be proven and on which it bases its judgment (cf. § 261, § 264(1), § 267(1) Code of Criminal Procedure). Criminal trials are designed in accordance with judicial principles so as to protect the legal interests of individuals and of the general public (cf. BVerfGE 133, 168 <199 para. 56.>). The establishment of the truth is guided by law and is the most far-reaching form of investigating the facts and reaching a judgment in accordance with the rule of law. The presumption of innocence requires a procedure for proving guilt that is in accordance with the applicable procedural law. Only on this basis can it be established whether someone is guilty (cf. BVerfGE 74, 358 <371>). Within this rule-of-law framework, the state is required under constitutional law to guarantee a functioning criminal justice system, which is necessary to give effect to justice (cf. BVerfGE 33, 367 <383>; 46, 214 <222>; 122, 248 <272>; 130, 1 <26>; 133, 168 <199 f. para. 57>). This special design of the principal proceedings before the criminal courts, including a trial hearing, provides the judgment resulting from such proceedings with the legitimation that forms the basis for its finality and justifies the unrestricted application of the double jeopardy rule within the meaning of Art. 103(3) of the Basic Law (cf. BVerfGE 3, 248 <253 f.>; 65, 377 <383>; cf. also BVerfGE 23, 191 <202>).

For these reasons, the Reich Court unreservedly applied the principle of ne bis in idem only to judgments by criminal courts. When the drafters of the Constitution created Art. 103(3) of the Basic Law, they based their decision on this interpretation of the Reich Court (cf. BVerfGE 3, 248 <251> with further references; 65, 377 <382 f.>).

(b) The other types of decisions that serve to conclude criminal proceedings also give rise to legitimate expectations that merit protection. However, such protection does not directly follow from Art. 103(3) of the Basic Law, but is rooted in the general principle of the protection of legitimate expectations under the rule of law. This concerns summary penalty orders (see (aa) below), the discontinuation of proceedings by the public prosecution office (see (bb) below) and court decisions terminating the proceedings (see (cc) below).

(aa) Summary penalty orders are not covered by the protection of Art. 103(3) of the Basic Law. Rather, the relevant provisions of ordinary law – such as § 373a of the Code of Criminal Procedure – must be measured against the general procedural principle of ne bis in idem following from the principle of the protection of legitimate expectations under the rule of law.

The procedure for summary penalty orders (§§ 407 ff. Code of Criminal Procedure) primarily serves to simplify and accelerate criminal proceedings. In contrast to criminal proceedings concluding with a judgment, the procedure for summary penalty orders does not give courts the possibility to freely and comprehensively investigate the level of wrongdoing and the culpability of the defendant, and thus cannot entirely uphold the public interest in a just decision (cf. BVerfGE 3, 248 <253>; 65, 377 <383>). In this respect, a summary penalty order that has not been challenged in due time is not equal to a judgment as set out in § 410(3) of the Code of Criminal Procedure (cf. BVerfGE 3, 248 <254>). […]

(bb) Decisions of the public prosecution office to discontinue proceedings do give rise to the legitimate expectation that the decision will continue to be valid in accordance with general principles of the rule of law, but they do not comprehensively bar renewed criminal prosecution within the meaning of Art. 103(3) of the Basic Law (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 19 May 2022 - 2 BvR 1110/21 -, para. 50; […]). Art. 103(3) of the Basic Law only applies to the decisions of German courts within the meaning of Art. 92 of the Basic Law; this follows from the position of the provision in ‘Part IX. The Judiciary’ of the Basic Law. Decisions of the public prosecution office to discontinue proceedings also do not contain findings regarding the culpability of the person concerned which would be capable of giving rise to the finality of such decisions.

This is not altered by the fact that the principle of ne bis in idem under EU law (set out in Art. 50 of the Charter of Fundamental Rights of the European Union in conjunction with Art. 54 of the Convention implementing the Schengen Agreement) may also protect decisions of the public prosecution office to discontinue proceedings under certain conditions (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 19 May 2022 - 2 BvR 1110/21 -, para. 37 ff. with further references regarding the case-law of the Court of Justice of the European Union). Art. 103(3) of the Basic Law does not set out the protection afforded by the principle of ne bis in idem in a comprehensive manner, but limits the double jeopardy rule to criminal proceedings before German courts that were concluded with a judgment on the merits of the case. There is therefore no need to interpret Art. 103(3) of the Basic Law in light of the EU Charter of Fundamental Rights here (cf. BVerfGE 152, 152 <177 ff. para. 60 ff.> – Right to be forgotten I ). Rather, Art. 50 of the Charter and Art. 103(3) of the Basic Law set out, for their respective domains, manifestations of this general principle, which under the Basic Law is also given effect through the general principle of the protection of legitimate expectations under the rule of law. With regard to decisions of the public prosecution office to discontinue proceedings, the principle of ne bis in idem thus guarantees a sufficient level of protection overall.

(cc) Court decisions to discontinue proceedings are also not afforded protection under Art. 103(3) of the Basic Law. They do not contain any final findings regarding the culpability of the person concerned, neither when they take the form of a judgment regarding admissibility (cf. § 260(3) Code of Criminal Procedure) nor when they take the form of a court order (cf. § 153(2) first sentence, § 153a(2) first sentence, § 206a(1), § 206b first sentence Code of Criminal Procedure). They therefore create the legitimate expectation that the decision to discontinue proceedings will continue to be valid in line with the general principle of ne bis in idem , but they do not absolutely preclude any reopening as provided by Art. 103(3) of the Basic Law ([…]).

Court orders that terminate proceedings as no sufficient grounds for suspicion of criminal conduct could be established (cf. § 174(1), § 204 Code of Criminal Procedure) do not result in the application of the double jeopardy rule of Art. 103(3) of the Basic Law. They do not contain any final findings regarding culpability, but are based on the mere examination of a suspicion carried out in a written procedure without a trial hearing ([…]). They therefore do not comprehensively bar renewed criminal prosecution under Art. 103(3) of the Basic Law, but only protect the legitimate expectation that the court decision will continue to be valid. The possibilities of reopening proceedings when new facts or evidence have emerged, set out in the Code of Criminal Procedure (cf. § 211, § 174(2)), are therefore not measured against the standard of Art. 103(3) of the Basic Law, but against the general procedural principle of ne bis in idem .

This is not altered by the fact that the Federal Constitutional Court held in two Chamber decisions that a decision not to open main proceedings pursuant to § 204 of the Code of Criminal Procedure (cf. BVerfGK 4, 49 <52 f.>) and a dismissal decision pursuant to § 174(2) of the Code of Criminal Procedure (cf. BVerfGK 9, 22 <25 f.>) guaranteed protection from renewed criminal prosecution, with reference to the ‘guarantee of Art. 103(3) of the Basic Law’ (BVerfGK 9, 22 <25>) and to its ‘permeating effect’ (BVerfGK 4, 49 <52>). This is because substantively, both Chambers based their decisions on the general principle of ne bis in idem , presuming that the court orders in question only provided limited protection from renewed criminal prosecution. These decisions did not concern a violation of Art. 103(3) of the Basic Law.

bb) Within its limited scope of protection, Art. 103(3) of the Basic Law does not prohibit the legislator from allowing criminal proceedings to be reopened against convicted or acquitted persons generally (see (1) below); but it does prohibit retrials on the grounds of new facts or evidence (see (2) below).

(1) Criminal proceedings can be reopened with the aim of setting aside a judgment that is incompatible with rule-of-law principles, without the main focus being on altering the substantive outcome. Where this is the case, Art. 103(3) of the Basic Law is not affected (see (a) below). Nor does Art. 103(3) of the Basic Law prohibit provisions that are aimed at suspending a criminal court judgment on grounds other than altering the outcome (see (b) below).

(a) When criminal proceedings are reopened to rectify a judgment without changing its substantive outcome, this does not affect the scope of protection of Art. 103(3) of the Basic Law. Thus, the reopening of a case does not violate Art. 103(3) of the Basic Law if it is limited to replacing the substantive legal basis of a judgment because the Federal Constitutional Court has declared it void, while leaving all other elements of the judgment unaffected (cf. BVerfGE 15, 303 <307>). […]

(b) Provisions on the reopening of a case whose primary aim is not a change in the substantive outcome but the suspension of a criminal court judgment primarily for other reasons are likewise not affected by the prohibition of Art. 103(3) of the Basic Law.

This applies in particular to the provisions governing the reopening of criminal proceedings under § 362 nos. 1-4 of the Code of Criminal Procedure ([…]). These provisions constitute inherent limitations of Art. 103(3) of the Basic Law (cf. BVerfGE 3, 248 <252 f.>; 65, 377 <384>). There is no need to decide here to what extent they satisfy the general constitutional requirements, in particular the principle of proportionality ([…]).

§ 362 nos. 1-3 of the Code of the Criminal Procedure allow the reopening of criminal proceedings if it has been established by another judgment (§ 364 Code of Criminal Procedure) that a forged document was used, a witness or expert was guilty of making a false statement or a judge or lay judge was guilty of a breach of official duties in the trial hearing. In case of a breach of official duties (§ 362 no. 3 Code of Criminal Procedure), the proceedings are reopened regardless of whether the judgment is substantively correct. In cases where forged documents or false evidence were used, too (§ 362 nos. 1 and 2 Code of Criminal Procedure), the reopening is not primarily aimed at rectifying the outcome of the judgment. In the latter cases, the only instance in which proceedings are not reopened is where it can be ruled out that these acts influenced the decision (§ 370(1) second alternative Code of Criminal Procedure). In all of these cases, the aim of a reopening of proceedings is not necessarily a different outcome, but primarily a repeat of the defective proceedings.

The possibility of reopening proceedings thus has advance effects on the initial criminal proceedings. It reinforces legal obligations for the prosecuting authorities and the duty of witnesses to tell the truth beyond their criminal defence. It ensures that a manipulation of the proceedings does not appear worthwhile because it could lead to a final judgment that may be in favour of the accused. The 1873 draft of the German Code of Criminal Procedure also provided for grounds for reopening proceedings corresponding to today’s § 362 nos. 1-3; the reason given then was that nobody should be able to ‘enjoy the fruits of their criminal acts’. The reasoning went on to say that it would be contrary to the fundamental principles of criminal law if it were permitted that ‘the criminal could evade punishment by the commission of a new crime’, regardless of who commits this crime ([…]).

A judgment with such serious deficiencies fails to meet the requirements regarding due and proper judicial proceedings guided by law. Yet it is absolutely necessary under the rule of law that these requirements are met in order to obtain a just conviction (cf. BVerfGE 133, 168 <199 ff. para. 56 ff.>). The possibility of setting aside a judgment reached under such deficient conditions and repeating the proceedings serves to protect the integrity of the judgment, thereby safeguarding the authority of criminal proceedings.

§ 362 no. 4 of the Code of Criminal Procedure is likewise not primarily aimed at changing the outcome of the judgment for the acquitted. Rather, the provision’s purpose is to prevent conduct that would undermine the authority of criminal proceedings under the rule of law ([…]). In the legislative materials regarding the 1877 Code of Criminal Procedure, the rationale behind incorporating the grounds for reopening corresponding to today’s § 362 no. 4 was that the general legal values could easily be compromised if acquitted persons could publicly boast of their offences without consequences ([…]). It is said that they should not be able to talk about the crime in public, mock the victim and their family, brag about the acquittal and ridicule the state ([…]). The principle of accusatorial criminal proceedings, which conclude with acquittal if the presumption of innocence cannot be rebutted, would not be given effect if an acquitted person wanted to be perceived not as innocent, but as the perpetrator in their social environment.

(2) Art. 103(3) of the Basic Law does, however, prohibit the legislator from allowing criminal proceedings to be reopened on the grounds that new facts or evidence have come to light, i.e. where reopening the case is primarily aimed at reaching a ‘more correct’ decision (see (a) below). No different conclusion is merited by a changed understanding of the Constitution (see (b) below) or by the constitutionally protected interests of victims and their families (see (c) below).

(a) Rectifying a criminal judgment with the aim of arriving at a ‘more correct’, and therefore substantively more just, outcome is incompatible with the absolute prioritisation of legal certainty over substantive justice as mandated by Art. 103(3) of the Basic Law.

[…]

The reopening of a case on the grounds that new facts or evidence have emerged only serves to correct any possible disparities between the content of a criminal court judgment and the reality, in terms of substantive law, that has been revealed subsequently. Insofar as the legislator provides for such a reopening, it accords precedence to substantive justice over legal certainty. This is contrary to Art. 103(3) of the Basic Law.

When 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 (cf. also BVerfGE 56, 22 <31>; 65, 377 <383 and 385>). Under the rule of law, the possibility that isolated decisions may be wrong is tolerated for the sake of legal certainty (cf. BVerfGE 2, 380 <403>), especially in cases where this incorrectness is based on circumstances that have emerged subsequently (cf. BVerfGE 56, 22 <31>). Such new circumstances do not cast doubt on the formal integrity of the earlier criminal proceedings and their adherence to rule-of-law principles. Therefore, they cannot substantiate the presence of serious deficiencies in the rendered decision. Thus, the aim of reopening criminal proceedings on the grounds that new facts or evidence have come to light is not to strengthen the validity of the rendered decision. On the contrary, it is to expose the decision to reassessment. But especially with regard to acquittals, the authority of a final judgment is needed. The role and purpose of a court decision and its finality is to make a binding determination on the law as it stood at the relevant time through the legal validity of the substance of the decision and thereby create legal certainty and safeguard the peaceful legal order (cf. BVerfGE 47, 146 <161>).

(b) It cannot be argued that changes in constitutional reality have altered the significance of Art. 103(3) of the Basic Law to such an extent that the legislator is now entitled to introduce a provision – however narrowly defined – for reopening criminal proceedings on the grounds that new facts or evidence have come to light.

It is true that criminal law and criminal procedure law are subject to ongoing change. The admission of plea bargaining, in particular, has influenced the truth-finding aspect of criminal proceedings (cf. BVerfGE 133, 168 <204 ff. para. 65 ff.>). But these and other developments do not alter the constitutional requirements that criminal proceedings must satisfy (cf. BVerfGE 133, 168 <225 ff. para. 100 ff.>).

The same applies to the development of forensic methods and investigative capabilities. Whereas these can bring about new needs for protection arising from fundamental rights (cf. BVerfGE 65, 1 <42>; 109, 279 <309>; 112, 304 <316>; 113, 29 <45 f.>; 120, 274 <305 f.>; 120, 378 <398 f.>; 154, 152 <215 ff. para. 87 ff.> – Federal Intelligence Service – Surveillance of foreign telecommunications ; Federal Constitutional Court, Judgment of the First Senate of 16 February 2023 - 1 BvR 1547/19 inter alia -, para. 52 ff. – Automated data analysis ), they do not result in any lowering of the constitutional protection against state interference.

In particular, it cannot be argued that the legislator is no longer obliged to satisfy such demanding constitutional requirements because the principles of democracy and the rule of law have become so strongly embedded in the Federal Republic of Germany that there is no longer any risk of constitutional principles being set aside or watered down ([…]). Fundamental rights protection under the Basic Law is ‘not conditional on the existence of a real risk to the free and democratic basic order’ ([…]).

(c) Nor can the interests of victims and their relatives be invoked to justify a broadening of the legislator’s leeway in designing the statutory framework for the reopening of criminal proceedings.

It is true that, according to Chamber decisions of the Federal Constitutional Court, the state’s duty of protection derived from Art. 2(2) first and second sentence in conjunction with Art. 1(1) second sentence of the Basic Law can give rise to claims against the state for effective criminal prosecution in cases where individuals are unable to defend themselves against considerable criminal acts attacking their highly personal legal interests. If the state refrained from effective prosecution of such acts, this could undermine the confidence of the public in the state’s monopoly on the use of force and result in a general climate of legal uncertainty and violence (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 26 June 2014 - 2 BvR 2699/10 -, para. 10; Order of the Third Chamber of the Second Senate of 6 October 2014 - 2 BvR 1568/12 -, para. 11; Order of the Third Chamber of the Second Senate of 19 May 2015 - 2 BvR 987/11 -, para. 20; Order of the Second Chamber of the Second Senate of 15 January 2020 - 2 BvR 1763/16 -, para. 35 f.; Order of the Second Chamber of the Second Senate of 21 December 2022 - 2 BvR 378/20 -, para. 53). Yet the claim to effective criminal prosecution does not guarantee a specific outcome. In principle, it merely obliges the criminal prosecution authorities to take (effective) action (cf. Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 21 December 2022 - 2 BvR 378/20 -, para. 56). However, the reasons for reopening criminal proceedings against a defendant on the grounds that new facts or evidence have emerged are not rooted in serious deficiencies in the prosecution per se, nor are they related to any failure to prosecute a specific crime. On the contrary: an acquittal is the culmination of criminal proceedings that, far from being discontinued, were in fact properly conducted. Therefore, an acquittal is generally not capable of undermining the confidence of victims and their relatives in due and effective criminal prosecution.

Nor does pointing to the ongoing improvement of investigation techniques serve to prove that earlier criminal prosecutions failed to comply with the rule of law. Rather, if unresolved cases can now be solved with the help of previously unavailable investigative techniques, it confirms that the earlier findings were sound from a rule-of-law perspective, even if they were incomplete in substantive terms. Assuming that technical progress takes place, an investigation conducted at some later date and therefore using more advanced methods does have the potential to produce superior findings. Yet it can also suffer from the fact that not all the evidence relevant to the original investigation might still be available when the second investigation is carried out, or might not be as reliable as during the first investigation. This must be balanced against the far more significant aim of timely criminal investigations and convictions. The latter aspect is not just in the interest of the defendant and of the general public, but is also important for victims and their relatives. The representative of the victim support organisation WEISSER RING e.V. , too, explained in the oral hearing that a policy of generally reopening cases when new facts or evidence have emerged is not in the interests of victim protection. A situation in which criminal proceedings were practically never-ending due to the constant possibility that new facts or evidence might emerge would place a considerable psychological burden on the victims or their surviving relatives. Over time, this aspect would increasingly outweigh the need for a substantively correct investigative and judicial outcome.

In any case, claims to effective criminal prosecution do not go beyond the state’s obligation to press charges and the procedural rights as joint plaintiffs of persons concerned. These claims do not encompass the substantive rectification of a criminal court decision, namely a conviction instead of an acquittal (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 26 June 2014 - 2 BvR 2699/10 -, para. 14; Order of the Third Chamber of the Second Senate of 6 October 2014 - 2 BvR 987/11 -, para. 15; Order of the Third Chamber of the Second Senate of 19 May 2015 - 2 BvR 1568/12 -, para. 24; Order of the Second Chamber of the Second Senate of 15 January 2020 - 2 BvR 1763/16 -, para. 42; Order of the Second Chamber of the Second Senate of 21 December 2022 - 2 BvR 378/20 -, para. 56 f.). The state is only obliged to conduct criminal prosecution; it is not obliged to ensure the success of such prosecution in the sense of the finding of absolute truth, especially not by way of reopening cases that have already become final.

2. Therefore, § 362 no. 5 of the Code of Criminal Procedure, which is indirectly challenged in the present proceedings, violates Art. 103(3) of the Basic Law. For criminal law (see a) below), the provision allows renewed criminal prosecution in cases where a German criminal court has already handed down a final judgment for the same crime (see b) below), with the primary aim of rectifying the judgment in substantive terms (see c) below); this runs counter to the protection afforded by Art. 103(3) of the Basic Law (see d) below).

a) § 362 no. 5 of the Code of Criminal Procedure is concerned with criminal law. The offences listed in § 362 no. 5 of the Code of Criminal Procedure – murder under specific aggravating circumstances pursuant to § 211 of the Criminal Code (Strafgesetzbuch – StGB) as well as the listed offences from the Code of Crimes against International Law (Völkerstrafgesetzbuch – VStGB) – constitute general criminal laws within the meaning of Art. 103(3) of the Basic Law (cf. by analogy regarding Art. 103(2) of the Basic Law, Federal Constitutional Court, Order of the Fourth Chamber of the Second Senate of 12 December 2000 - 2 BvR 1290/99 -, para. 18 ff.).

For the offences set out therein, the Code of Crimes against International Law provides for criminal punishment reflecting the authoritative legal condemnation of the culpable violation of a generally guaranteed legal interest and the disruption of the peaceful legal order. The Code does not have any particular features that would justify treating it differently from the Criminal Code and its ancillary laws. Rather, the two legal frameworks are in close alignment, in both systematic and substantive terms; this rules out preclusive effects of a criminal conviction that differ based on which legal framework is applicable. The Code of Crimes against International Law mostly lacks a general part; its § 2 therefore makes reference to the general provisions of the Criminal Code. Before the offence of genocide was inserted as § 6 into the Code of Crimes against International Law in 2002, it was laid down in § 220a of the Criminal Code, which had been created as early as 1954 (cf. BGBl II 1954 p. 729 and BGBl I 2002 p. 2254). Moreover, according to the principle of universal jurisdiction set forth in § 1 first sentence of the Code of Crimes against International Law, the German criminal law is generally applicable. For homicides and bodily harm, this follows from an annex competence developed in the case-law of the Federal Court of Justice (Bundesgerichtshof ). Thus, the general rules governing a conflict of laws, which also apply to such cases ([…]), allow a conviction for genocide under § 6 of the Code of Crimes against International Law together with a conviction for murder under specific aggravating circumstances pursuant to § 211 of the Criminal Code ([…]).

b) § 362 no. 5 of the Code of Criminal Procedure is directed at final judgments of German courts in criminal proceedings. This includes acquittals. By allowing criminal proceedings to be reopened after an acquittal, the provision makes it possible for an acquitted person to be criminally prosecuted again for an act for which they have already been judged.

c) According to § 362 no. 5 of the Code of Criminal Procedure, the reopening of criminal proceedings is permissible on the grounds that new facts or evidence have come to light. The main purpose of this new provision is to enable acquittals to be rectified in substantive terms. The subtitle of the introductory act – Act to Obtain Substantive Justice – contains a clear reference to this purpose (BGBl I 2021 p. 5252). In a similar vein, the explanatory memorandum to the act describes the purpose as being to rectify the ‘unsatisfactory’ and ‘utterly intolerable’ situation that would prevail if it remained impossible to reopen criminal proceedings after new facts or evidence had emerged (cf. BTDrucks 19/30399, pp. 1, 9). The acquittal is to cease to be valid if, ‘after the conclusion of the court proceedings, new, incriminating evidence is found that is highly likely to establish the criminal liability of a previously acquitted person’ (cf. BTDrucks 19/30399, p. 1 and, in a similar vein, p. 9 f.). The ‘contradiction between the finality of a court decision and substantive justice [is to] be resolved’ (cf. BTDrucks 19/30399, p. 2 and, in a similar vein, p. 9 f.). The primary aim of the law is to allow the reopening of a case when new facts or evidence have emerged (cf. BTDrucks 19/30399, p. 6).

d) § 362 no. 5 of the Code of Criminal Procedure thus contravenes the – absolute – prioritisation of legal certainty over substantive justice as mandated by Art. 103(3) of the Basic Law. The provision is incompatible with the prohibition of double jeopardy in Art. 103(3) of the Basic Law.

II.

In addition, § 362 no. 5 of the Code of Criminal Procedure violates the prohibition of retroactivity following from Art. 103(3) in conjunction with Art. 20(3) of the Basic Law insofar as it is applied to proceedings that were already concluded by final acquittal before the provision entered into force.

1. A change in the law that is tied to past circumstances and has legal consequences affecting the past must, due to the great impact the provision has in terms of its legal consequences, primarily be measured against the standard of the principle of the rule of law in conjunction with the fundamental rights or equivalent rights affected by the legal consequences thereby imposed (cf. BVerfGE 72, 200 <257>; 156, 354 <404 f. para. 139>).

a) In its established case-law, the Federal Constitutional Court distinguishes between laws with ‘real’ retroactive effects (echte Rückwirkung ) and laws with ‘quasi’ retroactive effects (unechte Rückwirkung ). A legal provision has real retroactive effects in the form of a ‘retroactive effecting of legal consequences’ (Rückbewirkung von Rechtsfolgen ) if its onerous legal consequences apply to events that were already fully concluded before the provision was promulgated. By contrast, a legal provision has quasi retroactive effects in the form of a ‘retroactive link of statutory requirements’ (tatbestandliche Rückanknüpfung ) if its future implications affect existing legal relationships and circumstances that have not yet been fully concluded, leading to a loss of value of the affected legal position (cf. BVerfGE 101, 239 <263>; 123, 186 <257>; 148, 217 <255 para. 136>). This is the case, for instance, if the onerous legal consequences of a law only come into effect after the promulgation of the law but the statutory elements prompting these consequences apply to situations that have already been set in motion before the law was promulgated (cf. BVerfGE 63, 343 <356>; 72, 200 <242>; 97, 67 <79>; 105, 17 <37 f.>; 127, 1 <17>; 132, 302 <318 para. 43>; 148, 217 <255 para. 136>).

b) Any retroactive effecting of legal consequences (real retroactive effects) is generally impermissible under constitutional law (cf. BVerfGE 13, 261 <271>; 95, 64 <87>; 122, 374 <394>; 131, 20 <39>; 141, 56 <73 para. 43>; 156, 354 <405 para. 140> with further references). This general prohibition of any retroactive effecting of legal consequences protects the trust in the reliability and predictability of the legal system created under the Basic Law, and of the rights acquired on the basis of that system (cf. BVerfGE 101, 239 <262>; 132, 302 <317 para. 41>; 135, 1 <21 para. 60>; 156, 354 <405 para. 140>). The category of real retroactivity – understood as the retroactive effecting of legal consequences in respect of concluded situations – is justified by the fact that this category is for cases in which the protection of legitimate expectations generally takes precedence given that once the legal consequence has been effected by law, the past situation has reached a degree of conclusion that the legislator may not set aside, unless there are particularly serious grounds for doing so (cf. BVerfGE 127, 1 <19>; 156, 354 <406 para. 142>).

Yet the prohibition of retroactivity is not only justified by the principle of the protection of legitimate expectations, it is also limited by this principle (cf. BVerfGE 13, 261 <271 f.>; 88, 384 <404>; 101, 239 <266>; 126, 369 <393>; 135, 1 <21 para. 61>; 156, 354 <406 para. 142> with further references). It is recognised that the prohibition of real retroactivity does not apply when those affected could not legitimately expect that the law would remain the same even at the time which is subject to the retroactive effects, but had to expect that it would change (cf. BVerfGE 13, 261 <272>; 30, 367 <387>; 88, 384 <404>; 95, 64 <86 f.>; 122, 374 <394>; 135, 1 <22 para. 62>; 156, 354 <406 f. para. 143> with further references). In particular, expectations do not enjoy protection if the law was so unclear and opaque that clarification had to be expected (cf. BVerfGE 13, 261 <272>; 30, 367 <388>; 88, 384 <404>; 122, 374 <394>; 135, 1 <22 para. 62>; 156, 354 <407 para. 143> with further references), or if the law as it stood until then was incompatible with the legal order and inequitable to such a degree that there were serious doubts as to its constitutionality (cf. BVerfGE 13, 215 <224>; 30, 367 <388>; 135, 1 <22 para. 62>; 156, 354 <407 para. 143>). The same applies if general and significant legal uncertainty had arisen over time (due to developments in the case-law) and it was unclear to many of those affected what was lawful (cf. BVerfGE 72, 302 <325 f.>; 131, 20 <41>; 156, 354 <407 para. 143>). Moreover, the protection of legitimate expectations must stand back if exceptionally significant interests of the common good, which take precedence over the principle of legal certainty, require the retroactive repeal of a law (cf. BVerfGE 13, 261 <272>; 18, 429 <439>; 88, 384 <404>; 101, 239 <263 f.>; 122, 374 <394 f.>; 135, 1 <22 para. 62>; 156, 354 <407 para. 143>), or if it would be unreasonable for citizens to rely on the semblance of validity created by an essentially invalid provision (cf. BVerfGE 13, 261 <272>; 18, 429 <439>; 50, 177 <193 f.>; 101, 239 <263 f.>; 135, 1 <22 para. 62>; 156, 354 <407 para. 143>), or if a retroactive change to the law based on objective grounds causes no or only very insignificant damage (so-called reservation of triviality; cf. BVerfGE 30, 367 <389>; 72, 200 <258>; 95, 64 <87>; 101, 239 <263 f.>; 135, 1 <22 f. para. 62>; 156, 354 <407 para. 143>).

2. Insofar as § 362 no. 5 of the Code of Criminal Procedure also allows for the reopening of criminal proceedings that were already concluded by final judgment at the time of the provision’s entry into force (see a) below), it has ‘real’ retroactive effects (see b) below) which are not permissible even by way of exception (see c) below).

a) § 362 no. 5 of the Code of Criminal Procedure extends to acquittals that were already final before its entry into force on 30 December 2021. No other interpretation of this provision – which was enacted without transitional legislation – seems plausible in view of the clear legislative intent. The explanatory memorandum explicitly mentions the case at issue in the present proceedings and the Bundestag petition initiated by the victim’s father (cf. BTDrucks 19/30399, p. 10; see also BVerfGE 162, 358 <374 f. para. 56>). Moreover, the explanatory memorandum states that the law is aimed at remedying the ‘intolerable’ situation with regard to new investigation techniques capable of allowing the conviction of persons acquitted in the past (cf. BTDrucks 19/30399, pp. 2, 10). The explanatory memorandum specifically points to DNA evidence (cf. BTDrucks 19/30399, pp. 1 f., 9 f.). This primarily concerns cases in which persons were acquitted at a time when DNA analysis was not yet as advanced as it is today.

b) Extending § 362 no. 5 of the Code of Criminal Procedure to acquittals that were already final before the provision’s entry into force amounts to real retroactivity in the sense of a retroactive effecting of legal consequences.

The principle of finality serves precisely to ensure that a decision is concluded definitively and to prevent it from being called into question again. In criminal proceedings in particular, an acquittal provides final confirmation that the suspicion on which the criminal proceedings were based did not hold up. Any new provision on the reopening of criminal proceedings must attach legal consequences to the proceedings themselves, not to the underlying facts of a specific case (cf. BVerfGE 63, 343 <360>). If criminal proceedings are reopened on the basis of a provision that comes into force at some later date, this alters the legal consequences of an earlier acquittal. The new provision adds a new ground to the grounds for reopening criminal proceedings that were already listed in the existing provisions (cf. also BVerfGE 2, 380 <403>; […]).

Moreover, the finality of a court decision constitutes at least as significant a cut-off point as the expiry of a limitation period for criminal prosecution. According to the case-law of the Federal Constitutional Court, even the expiry of a limitation period leads to the conclusion of the matter concerned and gives rise to legitimate expectations that the affected person will no longer be prosecuted; retroactive changes to rules on limitation periods therefore amount to real retroactive effects (cf. BVerfGE 156, 354 <403 f. para. 135 f.>; cf. also BVerfGE 25, 269 <286 ff.>; 63, 343 <359 f.>). This applies even more to the final conclusion of criminal proceedings.

c) The real retroactive effects associated with the introduction of § 362 no. 5 of the Code of Criminal Procedure are not constitutionally permissible even by way of exception. The provision does not satisfy the prerequisites for the exceptions recognised in the Federal Constitutional Court’s case-law. Acquitted persons can legitimately expect that the judgment is final and that the finality can only be lifted on the grounds set out in the law as it stood at the time of their acquittal (see aa) below). There are no overriding reasons of the common good; in particular, the standards used by the Court for assessing the retroactive effects of asset recovery (BVerfGE 156, 354) cannot be applied to the new ground for the reopening of proceedings against the accused (see bb) below).

aa) Acquitted persons have the right to expect that the finality of their acquittal can only be overridden on the basis of the law as it stood at the time of their acquittal. The principle of ne bis in idem recognises that legitimate expectations vis-à-vis acquittals merit protection. These legitimate expectations are granted constitutional protection under Art. 103(3) of the Basic Law.

§ 362 no. 5 of the Code of Criminal Procedure does not serve to clear up doubts regarding the law. On the contrary, there is complete clarity regarding the finality of an acquittal, especially in the event that new facts or evidence emerge. This was also taken for granted in the reform efforts preceding the legislative process.

The fact that the offences covered by § 362 no. 5 of the Code of Criminal Procedure are not subject to time limitation does not merit a different conclusion. For offences with no limitation period, an acquittal is the only means by which further criminal prosecution can be ruled out. An acquittal – unlike the mechanism of time limitation (cf. BVerfGE 25, 269 <286 f.>; 156, 354 <413 para. 158 f.>) – is an explicit decision by the state indicating that the prerequisites for punishing a certain act have not been met. This decision entails the exclusion of renewed criminal prosecution. As such, it constitutes an even more significant cut-off point than the expiry of a limitation period for criminal prosecution ([…]).

It is irrelevant whether the person concerned knew that the judgment was substantively wrong at the time of their acquittal. The ne bis in idem principle and Art. 103(3) of the Basic Law – as extensions of the principle of in dubio pro reo – protect acquitted persons regardless of their substantive guilt ([…]). In light of the right not to incriminate oneself and the right to remain silent, the acquitted person cannot subsequently be held responsible for not correcting an incorrect but favourable judgment.

bb) Nor does the protection of legitimate expectations stand back here due to overriding reasons of the common good that would take precedence over the principle of legal certainty and necessitate a retroactive remedy.

The legislator’s intent in enacting § 362 no. 5 of the Code of Criminal Procedure – namely to give effect to the principle of substantive justice – does not override the central importance of legal certainty for the rule of law. The acquittal of a person who may be guilty and the continued validity of that acquittal despite diminishing doubts about the acquitted person’s guilt are not ‘intolerable’ from the perspective of the common good. Rather, they are consequences of a criminal justice system that adheres to the rule of law – a system in which the principle of in dubio pro reo plays a central role.

The standards developed by the Court in its decision regarding retroactive asset recovery (BVerfGE 156, 354) cannot be applied to the present constellation. That decision dealt with the fact that the state declines to criminally prosecute offenders after the limitation period has elapsed. The Court considered that this situation constituted an overriding reason of the common good that is capable of justifying real retroactivity. It stated that the non-prosecution of such offenders could give rise to the impression of a considerable deficit in enforcement, which could adversely affect the public’s willingness to comply with the law. According to the Asset recovery decision, recovery of criminal proceeds aims to ‘make both the offender and the legal community realise […] that an accumulation of criminally obtained assets will not be recognised by law and thus cannot enjoy any permanence, thereby reaffirming the law’ (BVerfGE 156, 354 <410 para. 151>). This exception from the prohibition of retroactivity is only possible given that asset recovery is not an additional punishment that is subject to the principle of individual culpability, but a measure sui generis with restitution-like character that serves prevention purposes. In the case of asset recovery, the legitimate expectations of the persons concerned must stand back because the barring of prosecution by limitation does not alter the categorisation of certain conduct as criminal, and the expectation that dishonestly acquired rights will enjoy permanence in principle does not merit protection (cf. BVerfGE 156, 354 <411 ff. para. 152, 155, 157, 161>).

The reopening of criminal proceedings in cases where a final judgment has been handed down differs fundamentally from this scenario. It is directed at punishment that is subject to the principle of culpability. The legitimate expectations are not based on the offence being time-barred, but on a final judgment. If someone is acquitted, this judgment contains no expression of condemnation; the legitimate expectations of the acquitted person are therefore protected under constitutional law. The reopening is directed at renewed criminal prosecution and is based on a suspicion, but not on the finding that an unlawful act has been committed (cf. § 73a Criminal Code). Nor can it be found that § 362 no. 5 of the Code of Criminal Procedure must have retroactive effects in order to bring about greater stability regarding societal norms. In particular, it cannot be ascertained how the continued validity of an acquittal, which is always preceded by a trial hearing, could give rise to the impression of a deficit in enforcement.

D.

I.

§ 362 no. 5 of the Code of Criminal Procedure is declared void pursuant to § 95(3) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

The orders of the Higher Regional Court and Regional Court that relied on this provision are reversed pursuant to § 95(2) of the Federal Constitutional Court Act and the matter is remanded to the Regional Court.

II.

[…]

E.

With regard to C. I., the decision was taken with 6:2 votes; for the rest it was unanimous.

Dissenting opinion of Justices Müller and Langenfeld

to the Judgment of the Second Senate

of 31 October 2023

- 2 BvR 900/22 -

We do not agree with the Senate majority’s view that the double jeopardy rule in Art. 103(3) of the Basic Law generally prohibits the legislator from adding new grounds to the existing grounds for reopening criminal proceedings to the detriment of the person concerned. In principle, the guarantee under Art. 103(3) of the Basic Law is subject to a balancing with other constitutional interests. It therefore permits the legislator to provide for a new ground for the reopening of criminal proceedings (see 1. below). The state’s power to punish crime, rooted in the principle of the rule of law, constitutes a constitutional interest that can be balanced with the double jeopardy rule (see 2. below). Whether the actual design of the provision at issue here – § 362 no. 5 Code of Criminal Procedure – is proportionate in the strict sense (see 3. a) below) and sufficiently specific (see 3. b) below) would require further examination. This notwithstanding, the provision violates the prohibition of real retroactivity under Art. 20(3) in conjunction with Art. 103(3) of the Basic Law (see 4. below).

[…]

1. a) […]

b) We do not concur with the Senate majority that Art. 103(3) of the Basic Law contains an absolute decision to prioritise legal certainty over substantive justice, and that any balancing with other constitutional interests is therefore precluded. It is true that the drafters of the Constitution, in enacting Art. 103(3) of the Basic Law, made a fundamental decision to prioritise legal certainty, which may not be circumvented by the legislator. Lifting the finality of a judgment handed down by a criminal court by reopening proceedings against the person concerned must remain the exception and satisfy the principle of proportionality. The grounds for reopening a case must be so significant that the general validity of a final acquittal is overridden by way of exception. A regular or arbitrary lifting of the finality of court decisions in the context of the reopening of proceedings against the person concerned would be incompatible with Art. 103(3) of the Basic Law. That said, it is also true that Art. 103(3) of the Basic Law does not afford absolute protection against the lifting of the finality of court decisions. If Art. 103(3) of the Basic Law were completely exempt from any balancing, criminal proceedings could not be reopened against an acquitted person under any circumstances whatsoever. Yet the Senate majority does not draw this conclusion, but considers the existing possibilities for reopening criminal proceedings against an acquitted person – as set out in § 362 nos. 1-4 of the Code of Criminal Procedure – to be unobjectionable under constitutional law. The reasons given for this view are unconvincing (cf. para. 10 ff. below).

c) In our opinion, the legislator is permitted to add new grounds to the existing grounds for reopening criminal proceedings against an acquitted person as long as it observes the narrow constitutional limits resulting from Art. 103(3) of the Basic Law. Since the wording of Art. 103(3) of the Basic Law does not contain any express limitations, the right, which is equivalent to a fundamental right, is guaranteed without reservation. As such, it is subject to the limitations inherent in the Basic Law according to the general rules. Fundamental rights or equivalent rights that are exempt from any balancing whatsoever are a very rare exception and can only be directly derived from the fundamental right to human dignity, in respect of which any balancing is precluded (Art. 1(1) of the Basic Law). When it comes to Art. 103(3) of the Basic Law, it must be assumed that conflicting constitutional interests can be given effect as long as the general priority accorded to legal certainty under constitutional law is observed, and that such conflicting interests can be balanced with this guarantee in accordance with the principle of proportionality.

d) The Federal Constitutional Court has not yet determined which constitutional limits must be derived from Art. 103(3) of the Basic Law with regard to the introduction of new grounds for the reopening of criminal proceedings against the person concerned, which must be applied in a balancing with other constitutional interests – in this case the state’s power to punish crime and the underlying principle of substantive justice. Contrary to the view of the Senate majority (cf. para. 90 ff.), the Court’s case-law does not confirm that Art 103(3) of the Basic Law is exempt from any balancing. In its past decisions, the Federal Constitutional Court has not balanced Art. 103(3) of the Basic Law with other constitutional interests, nor has it stated whether the interest protected by Art. 103(3) of the Basic Law could be balanced with other constitutional interests. Rather, the decisions rendered in this regard are concerned with determining the scope of protection of Art. 103(3) of the Basic Law. The starting point in this regard is the overall structure of criminal procedural law (cf. BVerfGE 3, 248 <252>; 9, 89 <96>; 12, 62 <66>; 65, 377 <384>). It is not ruled out that further developments in criminal law doctrine can be taken into account; in the past, these have resulted in ‘adjustments’ of the protection afforded by Art. 103(3) of the Basic Law in relation to the term ‘act’ in Art. 103(3) of the Basic Law (cf. BVerfGE 56, 22 <34>). Nevertheless, the new ground of § 362 no. 5 of the Code of Criminal Procedure likely does not constitute such an adjustment required by criminal law doctrine; rather, it constitutes a further exception from the double jeopardy rule in cases where new facts or evidence subsequently emerge. As this exception restricts Art. 103(3) of the Basic Law, it requires justification in the context of a proportionality assessment.

e) A preclusion from any balancing of Art. 103(3) of the Basic Law with other constitutional interests cannot be based on the provision’s legislative history (see aa) below), its systematic interpretation (see bb) below) or spirit and purpose (see cc) below).

aa) We agree with the Senate majority insofar as it presumes that the legislative history does not allow clear conclusions to be drawn as to an absolute exemption from balancing of Art. 103(3) of the Basic Law (cf. para. 81). Rather, there is a strong indication that the legislator did not intend to restrict the grounds for reopening proceedings against the person concerned to the exhaustive catalogue of grounds already laid down in ordinary law. The members of the Parliamentary Council agreed that the pre-constitutional body of law as applied under the Reich Code of Criminal Procedure was to persist. It was therefore also clear that the existing grounds for reopening a case in ordinary law were intended to continue to apply. In an early decision from 1953, the Federal Constitutional Court held as follows in this regard: ‘The legislative history of Art. 103(3) of the Basic Law does not provide any indication that the inclusion in the Basic Law of the ne bis in idem principle was to substantively change this principle or to deviate from the limits established by the previous case-law. Rather, the intent was merely to lay down in the Basic Law this traditional legal principle due to its similarity to a fundamental right. (…) The principle enshrined in Art. 103(3) of the Basic Law therefore reflects the procedural law as it stood at the time of the Basic Law’s entry into force and the principle’s interpretation by settled case-law’ (BVerfGE 3, 248 <252>; 12, 62 <66>). Based thereon, some legal scholars presume that the guarantee afforded by Art. 103(3) of the Basic Law must be restricted to what was laid down in the case-law regarding the ne bis in idem principle before the Basic Law entered into force. According to these scholars, it must be assumed that the drafters of the Constitution intended the pre-constitutional procedural law to be the only inherent limitation of the right in Art. 103(3) of the Basic Law, which is guaranteed without reservation. Art. 103(3) of the Basic Law could therefore not be subject to further limitations by the principle of the rule of law enshrined in the Basic Law. These scholars argue that extending the grounds for reopening criminal proceedings against a defendant beyond the grounds set forth in § 362 nos. 1-4 of the Code of Criminal Procedure is therefore ruled out ([...]).

There is no indication in the legislative history that such a restrictive interpretation of Art 103(3) of the Basic Law is required. Insofar as is ascertainable, there was no debate on the question of whether the catalogue of grounds for reopening proceedings was to be exhaustive under constitutional law. There was no further discussion of the grounds, laid down in the Reich Code of Criminal Procedure at the time, for reopening a case against the person concerned after the final conclusion of proceedings. It is certainly true, as established by the Federal Constitutional Court in its earlier case-law, that Art. 103(3) of the Basic Law reflects the procedural law as it stood at the time of the Basic Law’s entry into force and its interpretation in the settled case-law at the time (cf. BVerfGE 3, 248 <252>; 12, 62 <66>). However, it cannot be concluded that the inclusion of Art. 103(3) into the Basic Law was intended to set in stone the procedural law as it stood at that time, essentially precluding any addition to § 362 of the Code of Criminal Procedure.

bb) The Senate majority’s reliance on a systematic interpretation (cf. para. 82 ff.) to demonstrate that Art. 103(3) of the Basic Law is not subject to a balancing with other interests is unconvincing.

(1) As the Senate rightly observes, Art. 103(3) of the Basic Law is a specific manifestation of the protection of legitimate expectations rooted in the principle of the rule of law, which applies exclusively to criminal proceedings. The Senate argues that these specific expectations, which go beyond the general expectation that a final decision will not change, are based on their absolute precedence over any other interests that the legislator might have in rectifying judicial decisions. However, this finding is predicated on the assumption that the drafters of the Constitution decided to give absolute priority to legal certainty over the principle of substantive justice, which is likewise protected under constitutional law. Yet we think that this is not the case here. Statutory grounds for the reopening of criminal proceedings already existed when the Constitution was drafted, but the drafters left them untouched. These grounds for reopening criminal proceedings against the persons concerned constitute limitations of Art. 103(3) inherent in the Basic Law – as was already confirmed by the Court in light of the established case-law (cf. para. 118 with reference to BVerfGE 3, 248 <252 f.>; 65, 377 <384>). It is not clear why the legislator should be prevented from adding new exceptions to the principle of ne bis in idem provided that such exceptions adhere to the general constitutional requirements applicable to such restrictions and their specification by the legislator complies with the limitations inherent in the Basic Law. The differences – mentioned by the Senate majority – between the established grounds for reopening criminal proceedings under § 362 nos. 1-3 of the Code of Criminal Procedure (propter falsa ) and under § 362 no. 4 of the Code of Criminal Procedure (credible confession following acquittal) on the one hand, and on the other hand the grounds introduced in the challenged provision of § 362 no. 5 of the Code of Criminal Procedure (cf. para. 117 ff.), which allows the reopening of criminal proceedings due to new evidence or facts, do not justify such categorical distinctions as to whether a provision is subject to a balancing with other interests. In this regard, the Senate majority first argues that the existing grounds for reopening criminal proceedings are not primarily aimed at changing the substantive outcome of a decision, but allow the suspension of a decision handed down by a criminal court for other reasons (cf. paras. 115, 117). This is contradicted by the fact – also pointed out by the Senate majority (cf. para. 119) – that § 370(1) second alternative of the Code of Criminal Procedure provides that proceedings are not reopened if it can be ruled out that the acts listed in § 362 nos. 1 and 2 of the Code of Criminal Procedure influenced the decision.

(2) In our view, the long-established provisions, which the Senate majority also considered unobjectionable with regard to Art. 103(3) of the Basic Law, confirm that it is permissible to allow finally concluded criminal proceedings to be reopened against the person concerned in those exceptional cases where the need to preserve the finality of a decision is outweighed by the grounds for reopening the case and the underlying interest in imposing punishment appropriate to the offender’s culpability – as expressions of an effective criminal justice system. For the cases dealt with under § 362 nos. 1-4 of the Code of Criminal Procedure, the drafters of the Constitution undoubtedly assumed that the need to preserve finality could be thus outweighed. In these cases, lifting the finality of a court decision by reopening the case is permissible if the criminal proceedings suffered from serious procedural shortcomings (§ 362 nos. 1-3 Code of Criminal Procedure) and therefore do not satisfy fundamental requirements arising from the rule of law, and in case of a credible confession of the acquitted (§ 362 no. 4 Code of Criminal Procedure). This shows that constitutionally permissible cases do exist in which the principle of legal certainty under Art. 103(3) of the Basic Law does not take absolute priority, meaning that the provision is not absolutely exempt from balancing.

(a) § 362 no. 5 of the Code of Criminal Procedure – the provision at issue here – fits in with this ‘traditional matrix of the pre-constitutional right to reopen criminal proceedings’ ([…]). This is also expressly set out in the explanatory memorandum to § 362 no. 5 of the Code of Criminal Procedure (cf. BTDrucks 19/30399, p. 7 ff.). Contrary to the Senate majority’s view (cf. para. 114 ff.), this provision does not lead to a paradigm shift. The long-established grounds listed under § 362 of the Code of Criminal Procedure allow criminal proceedings to be reopened in the case of serious procedural shortcomings (§ 362 nos. 1-3 Code of Criminal Procedure). They serve to rectify decisions in cases where the evidence was compromised; such decisions are not to be upheld, and renewed conviction (including severe sentencing) is permissible. The standards are not particularly high: it is sufficient that forged documents were used or a punishable false statement was made; according to prevailing opinion, the accused does not have to be responsible for such compromised evidence ([…]). § 362 no. 5 of the Code of Criminal Procedure is likewise directed at rectifying acquittals that were reached on the basis of deficient evidence in the original trial hearing, where the deficiency only became apparent later (regarding the requirements regarding the newness of facts and evidence, cf. para. 37 below). Insofar as the Senate majority points to advance effects resulting from the possibility of reopening criminal proceedings and the ratio legis of § 362 nos. 1-3 of the Code of Criminal Procedure, according to which nobody should be able to enjoy the fruits of their criminal acts (cf. para. 120), this does not alter the fact that Art. 103(3) of the Basic Law does not rule out the lifting of the finality in these constellations. It is unclear why this should be different in the exceptional case that overwhelming facts and evidence have emerged in relation to the most serious crimes with no limitation periods and why any balancing with Art. 103(3) of the Basic Law should be ruled out from the outset in this regard.

The same applies with regard to § 362 no. 4 of the Code of Criminal Procedure. If a credible confession is made after the judgment has been handed down (§ 362 no. 4 Code of Criminal Procedure), this changes the evidence to the detriment of the acquitted person with the result that the proceedings can be reopened. The situation is no different with § 362 no. 5 of the Code of Criminal Procedure, which requires that new facts or evidence provide compelling grounds for a conviction. Another reason given for the possibility of reopening proceedings if a confession is made is that the confidence of the public in the legal order would be undermined if offenders could boast of their offences without consequences ([…]). The Senate majority also argues that the provision’s purpose is to prevent conduct that would undermine the authority of criminal proceedings under the rule of law (cf. para. 122). The legislator puts forward a similar argument for the possibility of reopening proceedings under § 362 no. 5 of the Code of Criminal Procedure: it argues that it would lead to lasting disruption of the peaceful legal order if someone strongly suspected of one of the most serious crimes due to the emergence of new, compelling evidence remained unpunished (cf. BTDrucks 19/30399, p. 9). The legislator considers that refraining from asserting the state’s power to punish crime in the cases covered by § 362 no. 5 of the Code of Criminal Procedure can compromise the authority of the state under the rule of law; this assessment will probably be subject to the same constitutional standards as the assessment of confessions following acquittal pursuant to § 362 no. 4 of the Code of Criminal Procedure.

(b) The Senate majority considers § 362 no. 5 of the Code of Criminal Procedure to be unconstitutional due to the absolute guarantee of Art. 103(3) of the Basic Law, while considering § 362 nos. 1-4 of the Code of Criminal Procedure to be in conformity with the Constitution on the grounds that the drafters of the Constitution incorporated them into Art. 103(3) of the Basic Law as inherent limitations. Apart from the fact that this view would take accidental features of the pre-constitutional legal order and eternalise them in constitutional law ([…]), it involves conflicting value decisions that are virtually impossible to reconcile. It is very hard to explain why someone acquitted of an economic crime on the basis of a forged document is required to face renewed prosecution (even if they did not forge the document themselves), whereas someone acquitted of murder but later identified as the perpetrator by a molecular-genetic analysis is not ([…]). Similarly, it is hard to understand why a person who confesses to war crimes after having been acquitted can be tried again, while an accomplice who was likewise acquitted but did not confess should remain unpunished despite the emergence of overwhelming new evidence. […]

cc) (1) Contrary to what the Senate majority believes (cf. para. 87 ff.), the spirit and purpose of Art. 103(3) of the Basic Law do not indicate that the provision is exempt from a balancing of interests. As an individual right, the main purpose of Art. 103(3) of the Basic Law is to ensure legal certainty for the individual by restricting the state’s power to punish crime. That is why criminal prosecution is subject to a procedure governed by law, and further criminal prosecution for the same act is generally ruled out once this procedure has been concluded. Art. 103(3) of the Basic Law thus restricts the enforcement of the principle of legality (cf. BVerfGE 56, 22 <31 f.>). In addition, Art. 103(3) of the Basic Law serves to safeguard the peaceful legal order. This fundamental purpose is not overturned if, in exceptional cases, Art. 103(3) of the Basic Law is restricted by prioritising the state’s power to punish crime so that substantive justice can be obtained. Independent of the individual’s need for certainty, there is a need for society as a whole to have legal situations permanently settled in order to safeguard the peaceful legal order. That said, the legislator is entitled to consider that the peaceful legal order may also be harmed if, in cases involving the most serious criminal offences within the meaning of § 362 no. 5 of the Code of Criminal Procedure, a person evades punishment despite overwhelming evidence. In such cases, the state’s power to punish crime must be asserted as comprehensively as possible, and the legislator has taken this into account by providing that such offences are not subject to time limitation. It is not clear to us why the value decision underlying this assessment should, from the outset, be excluded from consideration when addressing the question of the reopening of criminal proceedings.

cc) Legal scholars are concerned that adding another propter nova ground to the grounds for reopening criminal proceedings against the person concerned will open the floodgates to a de facto surrender of the double jeopardy rule ([…]). However, given the high hurdles the legislator imposed for reopening proceedings pursuant to § 362 no. 5 of the Code of Criminal Procedure, these concerns lack a compelling basis. § 362 no. 5 of the Code of Criminal Procedure does not overturn the relationship between rule and exception mandated by Art. 103(3) of the Basic Law, but makes it possible to reopen criminal proceedings for a narrow and extreme exception that is capable of undermining the confidence in the rule of law to a greater degree than the other exceptions set out in the law. A situation where the existing stringent constitutional safeguards would not be able to prevent potential negative developments is not foreseeable. Therefore, both the reference to the countless negations of the principle of the finality of court decisions that had taken hold during the Nazi regime and the assertion that § 362 no. 5 of the Code of Criminal Procedure would ‘again erode the right under Art. 103(3) of the Basic Law (…), for the second time since 1933’ ([…]) are beside the point. The drafters of the Constitution included Art. 103(3) in the Basic Law as a response to the complete abandonment of the principle of ne bis in idem under Nazi law (cf. para. 64 with further references; […]). Apart from the fact that the narrow wording of § 362 no. 5 of the Code of Criminal Procedure clearly does not pose such risks, the provision is today protected by rule-of-law safeguards, which were completely absent during the Nazi regime.

2. It follows that the double jeopardy rule under Art. 103(3) of the Basic Law is in principle not exempt from further restriction by the legislator’s introduction of new grounds for the reopening of criminal proceedings under § 362 no. 5 of the Code of Criminal Procedure. The constitutional interest to be balanced [with the double jeopardy rule] is the state’s power to punish crime rooted in the rule of law. The purpose of reopening proceedings propter nova pursuant to § 362 no. 5 of the Code of Criminal Procedure is to assert the state’s power to punish crime in respect of a very small number of particularly serious criminal acts. Its underlying objective is to stabilise and safeguard the peaceful legal order and to give effect to law protecting highest-ranking legal interests of the individual (see a) and b) below) as well as fundamental interests under international law (see c) below).

a) The Basic Law attributes high standing to requirements relating to an administration of justice based on rule of law guarantees (cf. BVerfGE 80, 367 <375>). If the interests of a functioning criminal justice system are not taken into account, as is required under the rule of law, justice cannot be given effect (cf. BVerfGE 33, 367 <383>; 46, 214 <222>; 122, 248 <272>; 130, 1 <26>). These interests include that criminal offenders are prosecuted, sentenced and receive a just punishment in accordance with the applicable law (cf. BVerfGE 33, 367 <383>; 46, 214 <222>; 122, 248 <272 f.>; 133, 168 <199 para. 57>). The enforcement of the state’s power to punish crime also serves to protect legal interests. Behavioural norms that protect fundamental freedoms such as the right to life and physical integrity are particularly reliant on enforcement by the organs of the state. In expecting victims and their relatives not to retaliate and instead to respect the state’s monopoly on the use of force, the state must take responsibility for the punishment of conduct that violates legal interests ([…]).

The assertion of the state’s power to punish serious wrongdoing by imposing punishment that is appropriate to the offender’s culpability on the basis of a proper investigation of the facts is the key concern of criminal law and thus a requirement of the rule of law (cf. BVerfGE 51, 324 <343 f.>; 107, 104 <118 f.>). The explanatory memorandum to § 362 no. 5 of the Code of Criminal Procedure states that the provision’s aim is to ensure that considerable crime is punished in a manner that is appropriate to the offender’s culpability. This serves precisely to give effect to the aim of safeguarding the peaceful legal order underlying Art. 103(3) of the Basic Law (cf. BTDrucks 19/30399, p. 9). This legislative aim of giving priority to effective criminal prosecution and to the enforcement of substantive criminal law over legal certainty when the most serious crimes are concerned is legitimate and not objectionable under constitutional law. The acquittal of a defendant who actually committed the crime in question may well be the outcome of due and proper judicial proceedings in line with the rule of law; however, it fails to meet the key objective of criminal law: the punishment of wrongdoing and the safeguarding of the peaceful legal order that is a consequence of criminal proceedings. Yet citizens can legitimately expect the state to punish wrongdoing; this is also mandated under the rule of law. The more serious the specific crime and the more compelling the facts and evidence that have emerged, the more pressing the question regarding the relationship between substantive justice and legal certainty becomes. In the present case, the legislator resolved this question in a manner that is not objectionable under constitutional law, giving priority, by way of exception, to the state’s power to punish crime even following a final acquittal.

b) The assertion of the state’s power to punish crime also gives effect to the interests of victims and their relatives. According to Chamber decisions of the Federal Constitutional Court, the individual may have claims for the criminal prosecution of others rooted in fundamental rights with regard to considerable crime affecting life, physical integrity, sexual self-determination and liberty of the person in cases where the individual is unable to defend themselves against considerable criminal acts attacking their highly personal legal interests. If the state refrained from the effective prosecution of such acts, this could undermine the confidence of the public in the state’s monopoly on the use of force and result in a general climate of legal uncertainty and violence (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 26 June 2014 - 2 BvR 2699/10 -, para. 10; Order of the Third Chamber of the Second Senate of 6 October 2014 - 2 BvR 1568/12 -, para. 11; Order of the Third Chamber of the Second Senate of 19 May 2015 - 2 BvR 987/11 -, para. 20; Order of the Second Chamber of the Second Senate of 15 January 2020 - 2 BvR 1763/16 -, para. 35 f.). The effective prosecution of violent crime and comparable offences of this type gives specific shape to the state’s duty of protection following from Art. 2(2) first and second sentence in conjunction with Art. 1(1) second sentence of the Basic Law and is a fundamental responsibility of society under the rule of law (cf. BVerfGE 29, 183 <194>; 77, 65 <76>; 80, 367 <375>; 100, 313 <388 f.>; 107, 299 <316>; 122, 248 <272 f.>). For capital crimes, close family members may have a claim to criminal prosecution derived from Art. 6(1) and (2) in conjunction with Art. 2(2) first sentence and Art. 1(1) of the Basic Law (cf. Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 19 May 2015 - 2 BvR 987/11 -, para. 20; Order of the Second Chamber of the Second Senate of 2 July 2018 - 2 BvR 1550/17 -, para. 38; Order of the Second Chamber of the Second Senate of 21 December 2022 - 2 BvR 378/20 -, para. 52).

However, where it is assumed in the case-law of the Court’s Chambers that claims to effective criminal prosecution exist, these claims only extend to criminal prosecution as such. This does not mean that the individual is entitled to have a criminal court decision rectified in the context of the reopening of proceedings (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 26 June 2014 - 2 BvR 2699/10 -, para. 14; Order of the Third Chamber of the Second Senate of 6 October 2014 - 2 BvR 1568/12 -, para. 15; Order of the Third Chamber of the Second Senate of 19 May 2015 -2 BvR 987/11 -, para. 24; Order of the Second Chamber of the Second Senate of 15 January 2020 - 2 BvR 1763/16 -, para. 42; cf. also para. 135; […]). This notwithstanding, constitutional law does not preclude the legislator from fulfilling and specifying its duty to protect life and limb by providing for the possibility of reopening proceedings after final acquittal for the most serious violent crimes, even if no [individual] claims for criminal prosecution exist that would enable effective criminal prosecution.

c) The reopening of proceedings regarding crimes under international law provided for in § 362 no. 5 of the Code of Criminal Procedure gives effect to the state’s power to punish crime so as to enforce fundamental interests under international law.

aa) § 362 no. 5 of the Code of Criminal Procedure provides for the reopening of proceedings for murder under specific aggravating circumstances (§ 211 Criminal Code) and three core crimes under the Code of Crimes against International Law. These are the offences of genocide (§ 6(1) Code of Crimes against International Law), certain crimes against humanity (§ 7(1) no. 1 and 2 Code of Crimes against International Law) and war crimes against someone’s life (§ 8(1) no. 1 Code of Crimes against International Law). The German legislator set out these criminal offences, along with other offences under international criminal law, in the Code of Crimes against International Law in 2002 (Code of Crimes against International Law of 26 June 2002 <BGBl I p. 2254>, amended by Article 1 of the Act of 22 December 2016 <BGBl I p. 3150>). The criminal offences set out in the Code of Crimes against International Law (§§ 6-12) are subject to the principle of universal jurisdiction (§ 1 Code of Crimes against International Law), according to which the prosecution of these offences is independent of the place where the acts were committed and of the nationality of perpetrators and victims ([…]). The increasing acceptance of the principle of universal jurisdiction in international and national law is part of far-reaching structural changes in international law. The process of the constitutionalisation of international law was initiated by the recognition of a body of rules as ius cogens and sets limits to the freedom of action of sovereign states. The Judgment of the International Military Tribunal in Nuremberg in 1946 is considered the birth of modern international criminal law. It resulted in rapid acceptance of the so-called core crimes, which are also the subject of §§ 6-13 of the Code of Crimes against International Law ([…]). The UN Security Council built on these developments in establishing the International Criminal Tribunal for the former Yugoslavia in 1993 ([…]) and the International Criminal Tribunal for Rwanda in 1994 ([…]) on the basis of Chapter VII of the UN Charter. This was followed by the creation of the International Criminal Court on 17 July 1998 ([…]) on the basis of the Rome Statute, which entered into force on 1 July 2002.

However, the prosecution of crimes against international law by international criminal tribunals remains incomplete due to their limited jurisdiction and capacity. The decentralised application of international criminal law by domestic law enforcement authorities is therefore crucial for the effectiveness of this law. The German Code of Crimes against International Law is also based on this view. Its explanatory memorandum states as follows: ‘The German Code of Crimes against International Law reflects the development of humanitarian international law and international criminal law and sets out independent criminal law provisions specifically designed for this area of law. In terms of systematic concept and legal policy, this amounts to considerable progress from the previous practice of applying the provisions of general German criminal law to core crimes under international law; at the same time, it contributes to the consolidation of international criminal law’ (BTDrucks 14/8524, p. 12).

bb) When it comes to crimes against international law, what is at stake is not merely the protection of individual interests, but also fundamental interests of the entire community of states under international law. Every state is affected by crimes against international law; breaches have erga omnes effects, violating the rights of all states that have a legitimate interest in upholding peace, security and the well-being of humanity and in ensuring that these are not threatened by crimes against international law ([…]). Crimes against international law, just as other serious human rights violations, are therefore not part of the internal affairs of a state. At least with regard to the core crimes under international criminal law – including genocide, crimes against humanity and war crimes against life – every state should be regarded as authorised to punish these crimes under the principle of universal jurisdiction ([…]).

cc) In addition, the state is also required to prosecute crimes against international law, including the crimes covered by § 362 no. 5 of the Code of Criminal Procedure. For the Federal Republic of Germany, such obligations follow from the international treaties that it has ratified (concerning genocide cf. the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 <BGBl II 1954 p. 730>; for war crimes, the Geneva Conventions I-IV of 12 August 1949 <BGBl II 1954 p. 781, 783, 813, 838, 917> and Protocol I additional to the Geneva Conventions of 8 June 1977 <BGBl II 1990 p. 1551> are applicable; […]). Moreover, according to prevailing – albeit not undisputed – opinion, obligations to prosecute crimes under international law also arise from customary international law, although this is limited to the acts of a state’s nationals and to the state where the act was committed and where the accused resides ([…]). National law takes these obligations into account through the inclusion of corresponding offences in the Code of Crimes against International Law (§§ 6-8). § 1 of the Code of Crimes against International Law extends the German state’s power to punish crime, in accordance with the principle of universal jurisdiction, to crimes against international law independent of the state where the acts were committed and of the nationality of victims and perpetrators. In prosecuting crimes against international law, the criminal prosecution authorities and the courts act not only in the national interest, but also in the interest of the international community, as part of an international criminal justice system ([…]). International criminal law requires that criminal prosecution be effective and that the sanctions imposed are appropriate to the offence and the offender’s culpability.

The possibility of reopening proceedings following a final acquittal by a German court if new evidence emerges that provides compelling grounds for assuming that the person concerned will be convicted of one of the core crimes under international law covered by § 362 no. 5 of the Code of Criminal Procedure serves to strengthen the criminal prosecution of these crimes and thus ultimately to prevent offenders from going unpunished. The latter aspect is a central aim of modern international criminal law, as set out above. Especially with regard to the particularly difficult investigation of the crimes under international law covered by § 362 no. 5 of the Code of Criminal Procedure, which are generally committed in the context of international or internal violent conflicts, it must be assumed that new evidence often only emerges years after the acts were committed or that crimes under international law, which had so far been hidden, can only be detected in stored data by software developed at a later time ([…]). In light of these considerations, too, § 362 no. 5 of the Code of Criminal Procedure can be seen as reflecting an openness to international law regarding the state’s power to punish crime, in the sense that this power is given further effect.

dd) The understanding of the reach of the state’s power to punish crime set out here is in accordance with the applicable international criminal law, insofar as it concerns the domestic application of the principle of ne bis in idem […]. The transnational application of the principle of ne bis in idem does not form part of the protection afforded by Art. 103(3) of the Basic Law. The possibility of restricting the double jeopardy rule in individual cases and under narrow conditions in the national legal sphere is recognised by the European Convention on Human Rights and the International Covenant on Civil and Political Rights ([…]). […]

The principle of ne bis in idem enshrined in Art. 50 of the Charter of Fundamental Rights of the European Union, too, which is only applied insofar as the application and implementation of EU law is concerned, is considered to be subject to the usual rules for justifying interferences under Art. 52(1) of the Charter, which means that restrictions must be proportionate and meet overriding objectives of general interest ([…]). […].

ee) The criminal procedural laws of many European states allow a reopening of proceedings against the person concerned propter nova. A comparative analysis based on the results of a request of the Federal Constitutional Court in the context of the present proceedings to the European Commission for Democracy through Law (Venice Commission) and on the work of the Bundestag ’s Research Services (WD 7 - 3000 - 262/18 and WD 7 - 3000 - 007/22) that looks at 32 (mostly European) states (cf. para. 20 f. of the Judgment) shows that most of the states examined provide for the possibility of reopening proceedings against the person concerned. Such reopening is generally impermissible in only seven states. In another seven states, the reopening of proceedings against the person concerned is limited to cases where evidence was forged, false statements were made or other procedural errors were committed, such as corruption, bribery or abuse of office. By contrast, in 17 of the states examined, such reopening is possible when new facts or evidence emerge, albeit with differences regarding the details.

3. The question of whether the particular design of § 362 no. 5 of the Code of Criminal Procedure satisfies the principle of proportionality in the strict sense (see a) below) and is sufficiently specific (see b) below) would require further examination.

a) aa) A reopening of proceedings pursuant to § 362 no. 5 of the Code of Criminal Procedure results in considerable impairment of the individual legal certainty of acquitted persons guaranteed by Art. 103(3) of the Basic Law. It may not lead to the unreasonable risk that persons concerned must live their lives with the prospect of new criminal proceedings hanging over them like a sword of Damocles, without this being based on sufficient and constitutionally tenable reasons. Proportionality in the strict sense therefore mandates that very strict requirements apply to the reopening of proceedings propter nova following a final acquittal; these requirements must reflect the special significance accorded to the enforcement of the state’s power to punish crime in the constellations at issue here. This requirement is satisfied, firstly, by the fact that § 362 no. 5 of the Code of Criminal Procedure only provides for the reopening of proceedings for the most serious crimes. The crimes concerned here are only murder under specific aggravating circumstances, and core crimes under international law such as genocide, crimes against humanity and war crimes against a person. The provision only covers completed criminal acts and only concerns the person who committed the offence (cf. BTDrucks 19/30399, p. 10). None of the criminal offences concerned is subject to time limitation. All of the offences constitute especially serious wrongdoing and carry the highest possible punishment, i.e. a life sentence. A prerequisite for reopening proceedings under § 362 no. 5 of the Code of Criminal Procedure – just like under § 362 no. 4 – is that the defendant was acquitted in the earlier proceedings; if the sentence imposed was merely too lenient, reopening the proceedings is ruled out. […]

bb) The exceptional nature of any reopening of proceedings and the need to protect the persons concerned is also reflected in the two-stage procedure (§ 368(1), § 370(1) Code of Criminal Procedure), in the course of which the new facts and evidence are examined in the individual case on the basis of the requirements of § 362 no. 5 of the Code of Criminal Procedure. This serves to rule out premature and excessive use of this exceptional rectification mechanism. The application to reopen proceedings against the person concerned pursuant to § 362 no. 5 of the Code of Criminal Procedure can only be made by the public prosecution office, and not by joint plaintiffs. Both the decision regarding admissibility and the decision on the merits can be contested by complaint (§ 372 in conjunction with § 311(2) Code of Criminal Procedure).

cc) Moreover, given the serious impairment of the rights of the person concerned, § 362 no. 5 of the Code of Criminal Procedure only meets the element of appropriateness if safeguards are in place that provide the best possible guarantee that an innocent person is not tried again for the same act. This requirement will only be met if the new evidence is of such quality that it is highly likely that the person concerned will be convicted ([…]). It is rightly required in this regard that the new facts or evidence must fundamentally change the facts of the case or the body of evidence. […] It would therefore have to be examined whether the provision’s wording – that the new evidence and facts (must) establish cogent reasons for the assumption that the acquitted defendant will be convicted – falls short of this requirement. The Celle Higher Regional Court considers a very high likelihood of conviction to be sufficient in this regard (Order of 20 April 2022 - 2 Ws 62/22, 2 Ws 86/22 -, juris, para. 35; […]). By contrast, the explanatory memorandum to the draft act only requires a ‘high likelihood’ of conviction, making reference to the element of strong suspicion pursuant to §§ 112, 112a of the Code of Criminal Procedure as a prerequisite for issuing an arrest warrant (cf. BTDrucks 19/30399, p. 10). Whether § 362 no. 5 of the Code of Criminal Procedure can be interpreted in conformity with the Constitution, in such a way that the provision is not found to be disproportionate in the strict sense, would require further examination. Given that the Senate majority considers the provision to be unconstitutional, no such further examination was conducted.

dd) Further examination would also be required with regard to the question of the provision’s proportionality in relation to any adjustment of the sentence to compensate for the burdens imposed by the second proceedings. It is proposed that the case-law of the Federal Court of Justice regarding sentence mitigation in exceptional cases be applied here (so-called approach of less severe legal consequences, Rechtsfolgenlösung ; Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt 30, 105; […]). According to the – albeit disputed – opinion of legal scholars, the reopening of proceedings could be one instance in which such sentence mitigation that is not set out in the law could be applied in cases where a life sentence would [usually] be imposed ([…]). Whether such an approach is mandated by the principle of proportionality and whether the legislator would be constitutionally required to lay this down in the provision would require further examination.

b) Finally, § 362 no. 5 of the Code of Criminal Procedure raises questions with regard to its specificity. The provision sets out the possibility of reopening proceedings in case of ‘new facts or evidence (...) which, independently or in connection with evidence which was previously taken, establish cogent reasons’ that the person concerned will be convicted of the crimes set out therein. This wording is based on § 359 no. 5 of the Code of Criminal Procedure, which governs the reopening of proceedings to the benefit of a convicted person and rightly imposes less stringent requirements regarding the newness of the evidence. Any evidence that was not taken into account for the first decision is considered to be new (cf. Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 14 September 2006 - 2 BvR 123/06 inter alia -, juris, para. 20). This can also include facts that were the subject of discussions in the trial hearing, but were not included in the decision contrary to § 261 of the Code of Criminal Procedure ([…]). Such an understanding of new evidence would allow an application of § 362 no. 5 of the Code of Criminal Procedure that would be so far-reaching as to be incompatible with the exceptional nature of the provision and the protection afforded by Art. 103(3) of the Basic Law. Moreover, when it comes to the reopening of proceedings against the person concerned, evidence that would have been available in the earlier proceedings but was not considered due to oversights by investigators or the court can probably not be taken into account ([…]). In light of this, it is unclear whether § 362 no. 5 of the Code of Criminal Procedure satisfies the constitutional requirement that the legislator itself must decide on fundamental rights interferences, rather than leaving such decisions to the interpretation and application of the courts.

4. Irrespective of any doubts as to whether the provision’s actual design is compatible with the principles of proportionality and specificity, § 362 no. 5 of the Code of Criminal Procedure violates the prohibition of real retroactivity under Art. 20(3) in conjunction with Art. 103(3) of the Basic Law. We agree with the Senate’s arguments in this regard and only wish to add the following: In our view, too, it is not ascertainable that it would be necessary to extend the possibility of reopening proceedings propter nova to proceedings finally concluded by acquittal in the past so as to prevent adverse effects on the public’s compliance with the law and the confidence in the justice and inviolability of the legal order (cf. BVerfGE 156, 354 <410 f. para. 151> – Asset recovery ). Yet this finding becomes more persuasive given that we think that the legislator should be free – within the narrow constitutional limits set out above – to provide for a new ground for reopening proceedings propter nova for the most serious crimes to be applied to future cases (cf. para. 33 of this dissenting opinion), and thus to create a framework that gives priority, by way of exception, to the state’s power to punish crime over legal certainty.