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c) On dealing with the judicial system

It is a bitter experience which soon infects the defense case when reopening a case: The investigation proceedings as well as the trial know a series of principles of procedure, in particular the principle of finding the truth (§ 244 Par. 2 German Penal Code); in the appeal procedure on points of law, its efficacy is already impaired by uncontrollable imponderable factors - the logical coherence of the reasons tot the judgement, the defense counsel's pleadings in due form as well as the preparedness of the appeal court to make correction influenced by both. The legal force of the judgement, an the other hand, is the Sabbath tot all principles - they begin to rest. A change of roles seems to take place: Defense counsels become investigators in the name of the truth (claimed by them), judges and state prosecutors become defense counsels in the name of legal force. Who has the better moral on his side? Of course: Undisturbed administration of the law does not allow an arbitrary repetition of trials; even a liberal interpretation of the reasons for a reopening would be an invitation to abuse (the simple retraction of a confession must not already per se force a new trial). The critical examination therefore called for of new evidence and new evidence facts - in 99% of all reopening procedures it is a matter of the reason for the reopening under § 359 No. 5 of the German Penal Code - degenerates, however, in judicial comprehension to an impatient rebuff. Witnesses are certified as being untrustworthy before they are even heard; expert witnesses are not appraised according to their findings, but are measured quite formally solely by the fact whether "superior means of research" are at their disposal compared with the expert witnesses deployed earlier; if the criminal courts do not succeed already in this way in "pushing away" a new statement or a new expertise already in the addition proceedings, occasionally the ascertainments of the contested judgement are newly interpreted or even newly made: The crime had in fact been committed one day earlier than ascertained in the judgement[5]; the commission of a crime "shortly after 8:00 pm" assumed in a judgement also included a period until 8:30 pm[6]; the testimony of a witness examined under oath that he had appeared two or three minutes after 8:00 pm in a pub and had met the convicted person there a few minutes later was said to be "rather vague" which is why it could also be possible that the meeting in question with the convicted person had taken place already before 8:00 pm[7]. The decision by a regional appeal court which had regarded a witness produced in the reopening proceedings as an unsuitable means of evidence because his permanent inability to follow proceedings and be examined was established from a psychiatric expertise is of like quality; in fact, in precisely this expertise exactly the opposite was ascertained. Here, too, it was the Federal Constitutional Court which first had to make the three regional appeal court judges take the "(appellant's) constitutionally guaranteed claim to a decision free of arbitrariness"[8] to heart.

However, the rejection of requests for reopening does not take place only through the distortion of the pleading or of the facts of the case established in the judgement and questioned by the pleading. Also pseudological distinctions, such as could really only occur to lawyers, are brought forward against new facts and proofs to defend the final judgement. So the opposite of a fact established in the judgement is said not to be new: Facts which are in such a contradictory relationship to the facts forming the basis of the judgement that they could be excluded by the same by the laws of thinking, are necessarily always said to have already been "examined and rejected" by the trial judge.[9]

The decisions quoted are not glaring exceptions to a decision practice otherwise taking place in constitutional harmony. The lawyer in reopened cases is generally confronted with a criminal justice system which has taken up a defensive position seeking to ward off every attack against the old judgement with tooth and nail. He also has to arm himself against this: by a thorough reading of leading cases[10], in particular, however, with a constitutional law respect, by carefully absorbing the rulings increasingly being handed down by the divisions of the Federal Constitutional Court. In particular, the ruling by the 2nd Division of the Second Senate of the Federal Constitutional Court of 7.9.1994[11] has the merit of having put up two obstacles to too precipitate a handling of arguments for the reopening of a case:

- The court hearing the reopening submissions is debarred by constitutional law in the admission procedures from weighing evidence and making findings by way of a qualifying examination which according to the structure of criminal procedure are reserved for the main trial;

- at all events, the establishment of such facts which materially sustain the conviction in that they delimit the offence sentenced in its decisive features, or the confirmation or rebuttal of which places an outstanding role in the defendant's defense concept, may take place only in the main trial.

In this ruling, it is also emphasized that the reopening proceedings should not miss its objective of resolving the conflict between certainty of the law and substantive justice; the person convicted is stated to have a right to effective protection by the law derived from Art. 2 Par. 1 of the Fundamental Law.[12] What counts here: In reopening proceedings, too, the central concern remains the determination of the true facts of the case without which the substantive guilt principle cannot be put into effect.[13]

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5. So the Case from Coburg Regional Court forming the basis of the ruling by the Federal Constitutional Court in NStZ 1995, 43 = NJW 1995, 2024.
6. Thus Hamburg Regional Court in the case forming the basis of the ruling by the Federal Constitutional Court m StV 1990, 530 = NJW 1990, 3193.
7. Thus the Hanseatic Regional Appeal Court Hamburg in a fatal correction of the judgement of the Regional Court; both were taught better by the Federal Constitutional Court which certified that the Hanseatic Regional Appeal Court Hamburg had made an "inadequate unfounded speculation from a constitutional aspect" the basis of its decision.
8. Federal Constitutional Court in NJW 1990, 3191.
9. Thus Karlsruhe Regional Appeal Court in NJW 1958, 1247; even today still earnestly subscribed to by Krehl, in Heidelberger Kommentar. StPO, 2nd ed., Heidelberg 1999, marginal note 18 on § 359; by contrast justifiably Schmidt, in KK, StPO, 3rd ed., marginal note 24 an § 359.
10. A particularly good commentary an the regulations an reopening cases is, by the way, that by Wilhelm Schmidt in Karlsruher Kommentar.
11. In NStZ 1995, 43 =NJW 1995, 2024.
12. NStZ 1995, 43; thus also the Federal Constitutional Court in NJW 1993, 2735.
13. Strate, in Gedächtnisschrift für Karlheinz Meyer, Berlin 1990, p. 474 with further references.