Die Wiederaufnahme des Strafverfahrens zuungunsten des Angeklagten vor dem Hintergrund neuer Beweise

»Revision Proceedings to the Disadvantage of the Accused on the Basis of Newly Discovered Incriminating Evidence«

Should it be admissible to reopen criminal proceedings even after a final judgement has been rendered if new inculpating evidence has come to light which seriously incriminates the person acquitted? The answer to this question entails solving the conflict between the prohibition of double jeopardy (in Germany known as the rule of »ne bis in idem« which in itself is an aspect of the individual guarantee of legal certainty) and the criminal courts' duty to render material justice on the basis of a material truth.

In Germany revision proceedings to the disadvantage of the accused are regulated in 362 of the German Code of Criminal Procedure (»StPO«). 362 StPO does currently not envisage revision proceedings to the disadvantage of an accused on the basis of new inculpating evidence.

The author traces the historical development of the protection against double jeopardy and the rules on revision proceedings in criminal matters. He furthermore examines the constitutionality of the current normative framework on revision in 362 StPO and of the rules recently proposed with the intent to acknowledge the discovery of new inculpating evidence as an additional ground of revision to the disadvantage of the accused.

The author concludes that admitting such a new ground of revision would violate the German Constitution and European Legal Minimum Standards on legal certainty in criminal law.