BVerfG: Murder suspect in Möhlmann case provisionally released

August 22, 2022 /

“Ne bis in idem” (Latin for “not twice in the same thing”)

Until 2021, this principle only applied in criminal proceedings with the exception of the so-called retrial, which states that no one may be punished twice for the same offense. The legislator has now amended this rule with a further exception, namely that in the case of crimes with no statute of limitations, such as murder or genocide, a retrial is possible after an acquittal if a conviction for murder is very likely, for example because new DNA traces have been found in the meantime. This new provision in Section 362 No. 5 of the Code of Criminal Procedure is currently still highly controversial under constitutional law due to the fundamental prohibition of double jeopardy in the Basic Law (Article 103 (3)).

In the case of Frederike von Möhlmann, the Federal Constitutional Court recently ruled that the alleged perpetrator, who has been in custody since the beginning of the year, should be released on conditional release.

The case of Frederike Möhlmann

In November 1981, 17-year-old Frederike von Möhlmann from Celle completed her music lessons and then went home. Four days later, her body was found – apparently stabbed to death and raped beforehand.

Ismet H. was identified as the suspect and sentenced to life imprisonment. The BGH overturned the verdict due to inconsistencies with tire tracks at the crime scene. It could not be established beyond doubt whether Ismet H. had actually been at the crime scene – the Stade Regional Court subsequently acquitted H. At the time, there was no clear evidence such as DNA from the perpetrator on the victim.

It was not until 2012 that traces of semen were found in the victim’s panties. At that time, the principle of “ne bis in idem” protected the alleged perpetrator from re-accusation.

Suspect now at large again

Until 2021, a retrial was only possible if the perpetrator confessed or falsified statements or documents. Among others, Frederike von Möhlmann’s father, Hans von Möhlmann, campaigned for the change in the law, which allows a retrial to be initiated in cases of murder, for example.

In summer 2021, the former federal government then passed the “Act on the Establishment of Substantive Justice”. This states that a retrial is possible for crimes that are not time-barred if new facts or evidence can be presented . In the Möhlmann case, this was the briefs with the DNA traces of the alleged perpetrator. The Verden Regional Court opened proceedings against Ismet H. The man was remanded in custody.

The Celle Higher Regional Court rejected the man’s appeal against the order, whereupon his defense filed a constitutional complaint and an application for a temporary injunction to end his pre-trial detention.

BVerfG weighs consequences in favor of the defendant

In a narrow decision by five to three judges, the Federal Constitutional Court decided to release the suspect from pre-trial detention. If it turns out that Section 362 No. 5 of the Code of Criminal Procedure is unconstitutional, Ismet H. would be wrongly detained on remand for months, which would be more serious than if the constitutional complaint were later unsuccessful. However, measures would have to be taken to safeguard the public interest in effective criminal prosecution. Ismet H. must therefore hand in his papers, is restricted in his freedom of movement and must regularly report to the authorities.

Source:
Freedom for a murder suspect (zeit.de; last accessed on 22.08.2022)
BVerfG orders temporary release of suspect in “Frederike murder case” (rsw.beck.de; last accessed on 22.08.2022)
Suspect in Frederike murder case released (faz.net; last accessed on 20.08.2022)
BVerfG orders release of murder suspects (lto.de; last accessed on 20.08.2022)
Judgment of the Federal Constitutional Court (bundesverfassungsgericht.de; last accessed on 20.08.2022)

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