Concept and Fundamentals of Res Judicata in Criminal Proceedings
The Concept Res Judicata in Criminal Proceedings refers to a central rule-of-law principle in criminal procedure law. It states that after the conclusion of a criminal procedure regarding a specific offense, no further prosecution may be initiated for the same act. Res judicata thus reflects the so-called ‘ne bis in idem’ principle, also known as the prohibition of double jeopardy. This principle is an essential element of the right to a fair trial and serves legal certainty as well as protection against multiple prosecutions.
Legal Foundations
Res judicata in criminal proceedings is mainly found in Sections 153, 153a, 170, and 211 of the German Code of Criminal Procedure (StPO) as well as in the German Basic Law (GG). Internationally, the principle is codified in Article 103(3) GG, which reads: ‘No one may be punished more than once for the same act under the general criminal laws.’ The principle is also enshrined in European law in Protocol No. 7 to the ECHR (Art. 4).
Requirements and Scope of Application of Res Judicata in Criminal Proceedings
Res judicata applies as soon as a case has been finally decided. Certain requirements must be observed:
Final and Binding Decision
Res judicata requires a final decision by the prosecuting authorities or a court. This decision may take the form of a judgment, a penal order, a dismissal of the proceedings, or an acquittal.
Decisions Concluding Proceedings
The decisions that can trigger res judicata in criminal matters especially include:
- Final Conviction or Acquittal (§ 260 StPO): Once a court has announced a judgment and it becomes final, no new prosecution for the same events may be brought.
- Dismissal of Proceedings (§§ 153 et seq. StPO): A proceeding that is definitively dismissed also leads to res judicata, provided that there are no grounds for reopening.
- Penal Order (§ 410(3) StPO): If no objection is filed against a penal order, it becomes final and further prosecution of the act is excluded.
Exceptions
Distinguishable from this are provisional dismissals, for example under § 154 StPO, or dismissals subject to monetary conditions (§ 153a StPO), where subsequent prosecution may be possible under certain circumstances, as long as the dismissal is not definitive.
Identity of the Act (‘the same act’)
Another central aspect is the requirement for identity of the act. Res judicata only applies to ‘the same act.’ The question of whether the same act exists in the legal sense is generally determined from a procedural perspective (‘procedural act’).
Procedural Act and Natural Unity of Action
According to prevailing opinion in criminal law, the act within the meaning of the prohibition on double jeopardy is the procedural act. This means that a naturalistic understanding of the life event is taken as a basis, but it must be assessed from a value-based perspective regarding the identity of the act underlying the proceedings. Multiple violations of law, if they are based on the same event and constitute a single course of conduct, are considered ‘the same act.’
Significance in Practice
Protection Against Double Prosecution and Finality
Res judicata effectively protects accused persons from repeated prosecution as soon as a proceeding has been finally concluded. This strengthens the principle of finality, which is considered an essential component of criminal proceedings. Repeat prosecution or investigation regarding the same set of facts is not permissible and results in a prohibition to proceed or a procedural bar.
Relationship to Other Legal Institutions
Res Judicata in Criminal Proceedings and Reopening of Proceedings
The occurrence of res judicata does not mean that every newly discovered fact must be disregarded. For special cases, the Code of Criminal Procedure provides for the possibility of reopening proceedings under §§ 359 et seq. StPO. The prerequisite for this is the existence of precisely defined grounds for reopening.
Res Judicata in Criminal Proceedings in the International Context
Res judicata also applies in international law. If an act has already been prosecuted abroad, this may under certain conditions preclude later proceedings in Germany, especially if the act was already finally sanctioned (see Art. 54 CISA).
Distinctions and Special Cases
Concurrent and Multiple Offenses
In cases involving multiple offenses within a unified life event, it must be distinguished, based on the concepts of multiple legal unity (§ 52 StGB) or multiple offenses (§ 53 StGB), whether the conduct in question triggers res judicata. The decisive factor is whether the respective acts can be understood as the same procedural act.
Discovery of Further Offenses During Proceedings
If further offenses become known during ongoing proceedings that are not identical to the original matter, separate prosecution may occur without triggering res judicata.
Significance for Affected Parties and Criminal Justice
Res judicata secures procedural finality and prevents expansive or arbitrary prosecutions. After the conclusion of a criminal proceeding, affected persons can be certain that they will not be prosecuted again for ‘the same act,’ thereby reinforcing legal peace and confidence in the legal system.
Summary
Res judicata constitutes a significant procedural bar in German and European criminal procedure law, excluding double prosecution and double punishment of individuals for an act already finally judged. This safeguards both the principle of finality and the purpose of criminal proceedings in creating legal certainty and restoring legal peace.
References and Further Statutes:
- Code of Criminal Procedure (StPO)
- Basic Law (GG), Art. 103(3)
- European Convention on Human Rights (ECHR), Art. 4 Protocol No. 7
- Schünemann, Res Judicata in Criminal Proceedings and the Procedural Act, NJW 1986, 693
- Fischer, Criminal Code and Ancillary Legislation, latest edition
Frequently Asked Questions
How does res judicata affect retrial proceedings?
Res judicata in criminal proceedings generally precludes renewed prosecution once a final judgment exists or the proceedings have otherwise been finally concluded (§ 103 GG; § 1 StPO in conjunction with § 153 StPO). However, this does not fundamentally exclude scenarios arising in the context of retrial proceedings (see §§ 359 et seq. StPO), as this is explicitly permitted by the formal finality rules of the Code of Criminal Procedure. If a retrial is successfully opened, the original proceedings are continued; res judicata has no blocking effect on this particular form of procedural continuation, as it is not a new but the ongoing original criminal proceedings. However, prosecution of the same acts in retrial proceedings following a final acquittal is only permitted if the requirements stated in § 362 StPO (for example, new evidence or confessions) are met and the statutory exceptions are sufficiently substantiated. Outside these narrow parameters, res judicata remains effective.
Does res judicata also apply to procedural measures such as a penal order?
Yes, res judicata not only extends to proceedings concluded by judgment but generally also to final penal orders pursuant to § 410 StPO. Once the penal order remains unchallenged and thus becomes final, no further criminal proceedings may be initiated or continued for the same act. This results from the need for legal certainty and the protection of the accused from multiple prosecutions (ne bis in idem). Res judicata applies in this circumstance regardless of whether the proceedings were concluded by judgment or – as with the penal order – in written proceedings. The decisive factor is always material identity of the act in accordance with § 264 StPO.
What effect does res judicata have on the prosecution of administrative offenses?
In cases where an act constitutes both a criminal offense and an administrative offense (so-called double relevance), res judicata may affect subsequent proceedings under the Administrative Offenses Act (OWiG). If a case has already been finally decided in criminal court, prosecution as an administrative offense is excluded under § 84(2) OWiG. The blocking effect of res judicata is comprehensive in that the act must be identical in factual terms (substantively and temporally). Repeated sanctioning of the same act as an administrative offense violates the prohibition of double prosecution and is thus excluded.
Are there limitations to res judicata in the international context?
Although res judicata is guaranteed in Germany through Art. 103(3) GG (ne bis in idem), special circumstances may arise in the international context, for example in cases of cross-border crime. Unless there are international agreements (such as the Schengen Implementing Convention, CISA, Art. 54 et seq.), German law generally only recognizes its own decisions regarding res judicata. International agreements may, however, provide that res judicata also results from foreign decisions. The prerequisite is that a final decision in the other contracting state exists and the act was not committed either wholly or partially in Germany. If these requirements are met, double prosecution in the respective other state is prohibited.
How does res judicata relate to different fact complexes or types of offenses?
The blocking effect of res judicata refers exclusively to the same act in the procedural sense (identity of the act according to § 264 StPO). If, for example, a defendant is acquitted or convicted for a particular theft, renewed prosecution for the same course of conduct is excluded—even if legal classification changes (e.g., theft instead of embezzlement). However, if new, genuinely separate offenses or variants are discovered (different locations, times, or further victims), res judicata does not apply. Accordingly, the court must always carefully examine whether actual identity of the act, or only similarity or connection, exists.
Can res judicata occur in the case of specific dismissals of proceedings (e.g., § 153 StPO)?
A mere dismissal of proceedings pursuant to provisions such as § 153 StPO (minor significance) or §§ 153a, 154 StPO (waiver of prosecution, dismissal subject to conditions) does not always lead to res judicata in the strict sense. If the proceedings are definitively dismissed, particularly after becoming final and when no possibility of reopening exists, res judicata will apply. However, if the dismissal under certain conditions allows renewed prosecution (e.g., failure to fulfill conditions or requirements under § 153a StPO), the blocking effect of res judicata is suspended and only comes into effect once the dismissal becomes final. Until then, repeated prosecution is possible if new facts arise.
