Der Grundsatz »ne bis in idem«, Art. 103 Abs. 3 GG - 10.1628/aoer-2021-0005 - Mohr Siebeck

Alexander Brade

Der Grundsatz »ne bis in idem«, Art. 103 Abs. 3 GG

Ein Plädoyer für die Effektivierung des Grundrechtsschutzes

Volume 146 () / Issue 1, pp. 130-180 (51)
Published 06.09.2021

35,70 € including VAT
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Art. 103 (3) of the Basic Law (GG) has to be reinterpreted in the light of the so-called effectiveness of basic rights. This means – in so far as different interpretations of the law are possible – that the one which is the most »liberal« from the standpoint of subjects of fundamental rights must be chosen. This has an effect on the definition of the terms »general criminal law« and »same act« as laid down in Art. 103 (3) GG, its geographical scope of protection, and its limitations. First of all, the »ne bis in idem« principle not only refers to criminal penalties in the strict sense but includes – not unlike the case-law of the ECHR – state actions with a criminal penalty-like character as well. In this regard, a sliding two-stage approach must be applied, which is based on the purpose of the penalty and its degree of severity, regardless of the classification as »criminal« by (national) law. Therefore, even a penalty pursuing mostly preventive purposes may be characterized as a criminal penalty if it involves a deprivation of liberty. Secondly, the »idem« strictly means the understanding of the identity of material acts whereas the legal classification of such acts is irrelevant. Yes, this is hardly compatible with the prevailing opinion according to which a final conviction for forming a criminal organization (§ 129 of the German Criminal Code) does not prevent further legal proceedings for criminal offenses that have not been the subject of the (first) criminal proceeding, but have been committed supporting that organization. Thirdly, to guarantee the full effectiveness of »ne bis in idem«, it works within and across countries; in the view of those affected it usually makes no difference where the (first) criminal prosecution took place. Nevertheless, Art. 103 (3) GG must not be relativized – foreign convictions may only not be taken into account if they are contrary to an international »ordre public«. Moreover, as there are no limitations to the »ne bis in idem« principle, reopening of proceedings concluded by a final judgment to the defendant's detriment (§ 362 of the German Code of Criminal Procedure) is unconstitutional. As a result, there would be a need for constitutional changes which must not affect the principles laid down as inalienable by Art. 79 (3) GG, including human dignity (Art. 1 GG) as well as the principle of legal certainty as a form of the rule of law.

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