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- Title
Die Wiederaufnahme des Strafverfahrens zur Korrektur fehlerhafter Urteile - rechtliche Grundlagen, empirische Erkenntnisse und Reformbedarf.
- Authors
Kaspar, Johannes; Arnemann, Carolin
- Abstract
In addition to ordinary legal means, the aim of correcting miscarriages of justice is served in particular by the remedy of reopening the case. The authors address the existing law of reopening the case and present its constitutional framing. On the basis that a wrongful conviction affects the convict's fundamental rights, they argue that the reopening of a case in the convict's favor should not be understood as an exception. The search for material truth should not generally be subordinated to the principle of legal security. Things are different, with respect to constitutional law, for the reopening of a case to someone's disadvantage, which should therefore be treated in a restrictive manner. In the case of a reopening propter nova according to section 359 Nr. 5 of the German Code of Criminal Procedure (StPO), a less restrictive interpretation of the underlying regulations should suffice to lead to appropriate results in practice. The possibility of a reopening because of wrongful sentencing according to section 363 Abs. 1 StPO should be granted in more cases, at least after a necessary revision of the law. The consideration of empirical evidence concerning the practice of reopening of cases reveals a huge demand for empirical research.
- Publication
Recht & Psychiatrie, 2016, Vol 34, Issue 1, p58
- ISSN
0724-2247
- Publication type
Article