Double Jeopardy - Germany

Germany

In Germany, the Basic Law for the Federal Republic of Germany does not provide comprehensive protection against double jeopardy.

Nobody shall be punished multiple times for the same crime on the base of general criminal law.

— Art. 103 (3) GG

Based on pre-constitutional case law, the clause is constructed to also protect against double jeopardy in the case of an acquittal. However, both the prosecution and defence may appeal against the verdict on questions of law and fact in less serious offences; in more serious offences, appeals are restricted to questions of law.

The rule applies to the whole "historical event, which is usually considered a single historical course of actions the separation of which would seem unnatural". This is true even if new facts occur that indicate other and/or much serious crimes.

The Penal Procedural Code (Strafprozessordnung – StPO) provides some exceptions to the double jeopardy rule:

A retrial not in favour of the defendant is permissible after a final judgment,

1. if a document that was considered authentic during the trial was actually not authentic or forged,
2. if a witness or authorised expert wilfully or negligently made a wrong deposition or wilfully gave a wrong simple testimony,
3. if a professional or lay judge, who made the decision, had committed a crime by violating his or her duties as a judge in the case
4. if an acquitted defendant makes a credible confession in court or out of court.

— § 362 StPO

In the case of an order of summary punishment (Strafbefehl), which can be issued by the court without a trial for lesser misdemeanours (German: Vergehen), there is a further exception:

A retrial not in favour of the defendant is also permissible if the defendant has been convicted in a final order of summary punishment and new facts or evidence have been brought forward, which establish grounds for a conviction of a felony by themselves or in combination with earlier evidence.

— § 373a StPO

A felony (German: Verbrechen) is defined as a crime which has a usual minimum sanction of one year of imprisonment.