Provision under § 362 no. 5 of the Code of Criminal Procedure on the reopening of criminal proceedings after acquittal is unconstitutional

Press Release No. 94/2023 of 31 October 2023

Judgment of 31 October 2023
2 BvR 900/22

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that § 362 no. 5 of the Code of Criminal Procedure (Strafprozessordnung – StPO) is incompatible with the prohibition of double jeopardy under Art. 103(3) of the Basic Law (Grundgesetz – GG) and the prohibition of retroactivity (Art. 103(3) in conjunction with Art. 20(3) of the Basic Law) and is void. The challenged orders issued by the Verden Regional Court (Landgericht) and the Celle Higher Regional Court (Oberlandesgericht), which relied on § 362 no. 5 of the Code of Criminal Procedure, are reversed. The matter is remanded to the Regional Court.

The complainant was accused of raping and killing a 17-year-old girl in 1981. The criminal proceedings brought against him ended with his acquittal in 1983. After the emergence of new evidence, the case was reopened in February 2022 pursuant to § 362 no. 5 of the Code of Criminal Procedure, which came into force on 30 December 2021. This provision allows criminal proceedings to be reopened against a finally acquitted person if new facts or evidence come to light that constitute compelling grounds for the acquitted person to be convicted of murder under specific aggravating circumstances (Mord) or of certain crimes against international law.

The reopening of criminal proceedings against the complainant is unconstitutional. Its legal basis – § 362 no. 5 of the Code of Criminal Procedure – violates Art. 103(3) of the Basic Law. The double jeopardy rule in Art. 103(3) of the Basic Law prohibits the legislator from enacting provisions that allow criminal proceedings to be reopened to the acquitted person’s detriment on the grounds that new facts or evidence have emerged. This rule is the manifestation of a decision to prioritise legal certainty over substantive justice. Furthermore, insofar as § 362 no. 5 of the Code of Criminal Procedure is applied to acquittals that were already final at the time of its entry into force, it violates the prohibition of retroactivity.

As to the outcome, the decision was taken unaninimously. As to whether Art. 103(3) of the Basic Law allows balancing with other constitutional interests, the decision was taken with a 6:2 vote. Justices Langenfeld and Müller filed a dissenting opinion.

Facts of the case:

Pursuant to § 362 no. 5 of the Code of Criminal Procedure, which was introduced in December 2021 by the Act to Obtain Substantive Justice (Gesetz zur Herstellung materieller Gerechtigkeit), criminal proceedings may be reopened against a finally acquitted person if new facts or evidence come to light that constitute compelling grounds for the acquitted person to be convicted of murder under specific aggravating circumstances or of certain crimes against international law.

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. 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 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 dismissed the appeal against this decision. 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.

In response to the complainant’s application for a preliminary injunction, the Senate – by order of 14 July 2022 and again by order of 20 December 2022 – suspended the Regional Court’s arrest warrant of 25 February 2022 subject to certain conditions (see Press Releases No. 62/2022 and No. 111/2022; in German). By order of 16 June 2023, it extended the preliminary injunction without conditions (see Press Release No. 57/2023; in German).

Key considerations of the Senate:

The constitutional complaint is admissible and well-founded.

I. § 362 no. 5 of the Code of Criminal Procedure violates Art. 103(3) of the Basic Law. The latter contains an individual 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. § 362 no. 5 of the Code of Criminal Procedure is not compatible with this right.

1. 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.

The principle that no person may be punished more than once for the same offence (ne bis in idem) describes the double jeopardy rule – a procedural obstacle that criminal courts and prosecution authorities are obliged to observe ex officio at every stage of the criminal proceedings. 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. Art. 103(3) of the Basic Law sets out the abstract principle of ne bis in idem as a concrete individual right. This protection is afforded to convicted and acquitted persons alike.

If the legislator creates the statutory preconditions for renewed criminal prosecution, it must likewise adhere to Art. 103(3) 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 those cases of double jeopardy which are banned by Art. 103(3) of the Basic Law.

b) Art. 103(3) of the Basic Law prioritises the principle of legal certainty over the principle of substantive justice. In declaring under Art. 103(3) that no person may be punished for the same act more than once, the Basic Law itself has already made this priority decision in the provision’s scope of application, namely for judgments in criminal proceedings.

This prioritisation is absolute. Within its scope, the provision leaves no space for balancing the double jeopardy rule with other constitutional interests. It is true that other conclusions are possible when looking only at the provision’s wording and legislative history. 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 – a specific manifestation that applies exclusively to criminal proceedings. As a special provision with its own substance, Art. 103(3) of the Basic Law affords protection beyond that offered 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 the other – in principle legitimate – interests which the legislator could take into consideration regarding other situations of rectifying final decisions not subject to Art. 103(3) of the Basic Law.

In terms of this unconditional quality, Art. 103(3) of the Basic Law corresponds to Art. 103(2) of the Basic Law. This provision prohibits the legislator from enacting retroactive criminal laws without exception. By understanding Art. 103(3) of the Basic Law as having similar absolute validity, it complements Art. 103(2) of the Basic Law. It adds a procedural dimension to the substantive protection afforded to the individual in the field of criminal law.

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 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.

The spirit and purpose of Art. 103(3) of the Basic Law likewise suggest that it enjoys absolute priority. 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. 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. 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.

Apart from that, the finality of a decision helps to safeguard the peaceful legal order (Rechtsfrieden). 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’.

Thus, Art. 103(3) of the Basic Law must also be given absolute priority when assessing the legislator’s statutory framework for the reopening of criminal proceedings.

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, Art. 103(3) of the Basic Law is merely one specific, narrowly defined manifestation of the protection of legitimate expectations vis-à-vis final 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.

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 aquitted persons generally; it merely prohibits the legislator from doing so on the grounds that new facts or evidence have come to light.

It is, for example, permissible for the legislator to allow criminal proceedings to 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. This applies in particular to the provisions governing the reopening of criminal proceedings under § 362 nos. 1–4 of the Code of Criminal Procedure. If a judgment is reached under seriously deficient conditions and fails to meet the requirements of due and proper judicial proceedings under the rule of law, the possibility of setting the judgment aside and repeating the proceedings serves to protect the integrity of the judgment, thereby safeguarding the authority of the criminal proceedings. Similarly, the purpose of setting aside an acquittal after a credible confession is to prevent conduct that would undermine the authority of criminal proceedings under the rule of law.

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. Rectifying a criminal judgment with the aim of arriving at a substantively ‘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.

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. Under the rule of law, the possibility that isolated decisions may be wrong is tolerated for the sake of legal certainty. New facts or evidence 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.

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. But these and other developments do not alter the constitutional requirements that criminal proceedings must satisfy.

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 neglected or watered down.

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. While it is true that the state’s duty of protection under Art. 2(2) first and second sentence in conjunction with Art. 1(1) second sentence of the Basic Law can, under certain conditions, give rise to claims against the state for effective criminal prosecution, these claims do not guarantee a specific outcome of the prosecution. In principle, they merely oblige the criminal prosecution authorities to take (effective) action. However, the reasons for reopening criminal proceedings against a defendant on the grounds that new facts or evidence have emerged are not related to 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.

Nor does pointing to the ongoing improvement of investigative methods 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 useful as during the first investigation. 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.

2. § 362 no. 5 of the Code of Criminal Procedure, which is indirectly challenged in the present proceedings, thus violates the double jeopardy rule in Art. 103(3) of the Basic Law.

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) as well as the listed offences from the Code of Crimes against International Law (Völkerstrafgesetzbuch) – constitute general criminal laws within the meaning of Art. 103(3) of the Basic Law.

b) § 362 no. 5 of the Code of Criminal Procedure is furthermore directed at the 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. 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.

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.

II. In addition, § 362 no. 5 of the Code of Criminal Procedure violates the prohibition of retroactivity (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 it entered into force.

1. 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. A retroactive effecting of legal consequences (i.e. real retroactivity) is generally impermissible under constitutional law.

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

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 indications given by the legislator. The explanatory memorandum explicitly mentions the case at issue in the present proceedings and the Bundestag petition initiated by the victim’s father.

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. In criminal proceedings, 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. 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.

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 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. 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.

The fact that the offences listed under § 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 – is an explicit decision by the state indicating that the prerequisites for punishing a certain act have not been satisfied. This decision is tied to 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.

The legislator’s intention in enacting § 362 no. 5 of the Code of Criminal Procedure – namely to give shape 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.

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

Dissenting opinion of Justices Müller and Langenfeld:

We do not agree with the Senate majority’s view that Art. 103(3) of the Basic Law essentially prohibits the legislator from adding new grounds to the existing grounds for reopening criminal proceedings against the person concerned. Irrespective of this, § 362 no. 5 of the Code of Criminal Procedure violates the prohibition of real retroactivity under Art. 103(3) in conjunction with Art. 20(3) of the Basic Law.

1. In principle, the guarantee under Art. 103(3) of the Basic Law is subject to a balancing with other constitutional interests. As a result, it permits the legislator to add new grounds to the existing grounds for reopening criminal proceedings.

a) 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 agrees that 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 – are unobjectionable under constitutional law.

b) 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. While the right under Art. 103(3) of the Basic Law is not subject to an express limitation clause, it can be restricted by the limitations inherent in the Basic Law.

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

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 – a specific manifestation that applies exclusively to criminal proceedings. However, the assertion that this specific protection of legitimate expectations takes unconditional priority over any other interests that the legislator might have in rectifying judicial decisions is based on the assumption that the drafters of the Constitution decided to give absolute priority to legal certainty over the principle – likewise protected under constitutional law – of substantive justice. This is not the case. Statutory provisions on the reopening of criminal proceedings already existed when the Constitution was drafted, but the drafters left them untouched. It is not therefore clear why the legislator should be prevented from adding new exceptions to the principle of ne bis in idem if such exceptions adhere to the general constitutional requirements applicable to such restrictions and if 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. 1-4 of the Code of Criminal Procedure and the grounds introduced in the challenged provision of § 362 no. 5 of the Code of Criminal Procedure do not justify such categorical distinctions as to whether a provision is subject to a balancing with other interests.

In our view, the existing provisions 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. This shows that constitutionally unproblematic cases do exist in which the principle of legal certainty under Art. 103(3) of the Basic Law does not take absolute priority.

The long-established grounds listed under § 362 nos. 1-3 of the Code of Criminal Procedure allow criminal proceedings to be reopened in the case of serious procedural shortcomings. They enable decisions to be rectified in cases where the evidence was compromised by one of the listed deficiencies. § 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 proceedings, where the deficiency only became apparent later.

The same applies 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 of the 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.

Apart from the fact that the Senate majority’s view would take accidental features of the pre-constitutional legal order and eternalise them in constitutional law, it contains conflicting value decisions that are virtually impossible to reconcile. In particular, it is 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 report 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.

Contrary to what the Senate majority believes, 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. 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. The legislator is entitled to consider that the peaceful legal order may 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 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.

2. It follows that the double jeopardy rule under Art. 103(3) of the Basic Law is 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. Given that it only applies to crimes of the most serious nature with no limitation periods, and in view of the other narrowly defined criteria, there is no risk of it ‘opening the floodgates’. The purpose of § 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 offences. Its deeper objective is to stabilise and safeguard the peaceful legal order and to protect highest-ranking legal interests of the individual as well as fundamental interests under international law.

3. Whether the actual design of the provision at issue here is proportionate in the strict sense and sufficiently specific would require further examination.

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. 103(3) in conjunction with Art. 20(3) of the Basic Law.