Re-trials after Acquittals in Germany

Abstract

The addition to the investigatory armoury of D.N.A.-based evidence has caused the double jeopardy principle to be called into question in many countries. Germany is no exception, and as in some other European countries the principle also has constitutional status there, further complicating matters. A unique aspect of German discussion on the topic, however, is memories of what the Nazis did to double jeopardy as well as the precise wording and interpretation of the constitutional principle, to which there were already four unwritten exceptions that had nothing to do with D.N.A. After several false starts, in 2021 the Bundestag added a fifth by finally passing a law allowing for the re-opening of prosecutions when there is compelling new evidence. This note outlines the developments in Germany and the debate on its propriety.