User:Gerichtsadler/Basic Law for the Federal Republic of Germany

General provisions for the judiciary and rights of the accused
Article 97 provides for judicial independence. Article 102 abolishes capital punishment.

Article 103 mandates a fair trial, forbids retroactive criminal legislation and multiple punishment for the same criminal act. During the establishment of the Grundgesetz in West Germany, politicians like Thomas Dehler—the federal chairman of the Free Democratic Party (FDP) and Federal Minister of Justice—advocated for the ideal of the Rechtsstaat, or the state molded by the rule of law. Thus, criminal justice issues such as amnesty towards former Nazis, were encompassed by Article 103’s ban on retroactive punishment. This was also echoed by the concept of Schlußstrich, the “final stroke” or settlement on criminal affairs. While politicians raised concerns over granting amnesty to perpetrators who committed or abetted murderous policies under the Nazis, the Bundestag ended up approving Article 103, including an extension of a statute of limitations for Nazi-related murders. When the Basic Law extended its scope into East German regions upon reunification in 1990, concerns regarding Article 103 were enlivened. At the time, courts in the new unified state dealt with the legal dilemma of liability of border guards from the GDR who killed escaping refugees between the former East-West border. Thus, the Federal German Constitutional Court had to decide whether there existed a violation of an inadmissibility of retroactive punishment in the criminal statute. Since Article 103 only permitted prosecution for an offense when it occurred under the applicable law, the Constitutional Court rejected the appeals. The prohibition of retroactive punishment in Article 103 has been likened to double jeopardy in common law systems, such as the U.S.

Article 104 mandates that deprivation of personal liberty must be provided for by statute and authorised by a judge before the end of the day following the arrest (analogous to the common law concept of Habeas corpus), and that a relative or a person in the confidence of the prisoner must be notified of a judicial decision imposing detention. The German Constitution (i.e. the Basic Law of the Federal Republic of Germany) unmistakably outlines the presumption of innocence.