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Happy Christmas! And News on the Constitutional State

Dolce Lauda insights

Happy Christmas! And News on the Constitutional State

In Italy there is a new civil procedure, in Germany a new government. The President of the (Federal) Republic will also soon be newly elected in both countries.

Contrary to popular opinion, the German Federal President does not only have a representative function. He is obliged to examine the content of every law passed by parliament to see if it is compatible with the constitution.

He is currently examining whether criminal trials on particularly serious offences can be resumed after the accused has already been definitively acquitted. The question arises when new evidence can be collected due to advancing technology.

The Federal President, who is himself a lawyer, is not to be envied. The new law would abandon a principle of the modern constitutional state, ne bis in idem, no one should be tried twice for the same thing. Every citizen must be able to rely on a legally binding decision by the state.

Substantive justice and formal justice often go their separate ways. It follows from the principle of "in dubio pro reo" alone that even today criminals who have committed heinous acts are acquitted by final judgment. That is the price of a constitutional state.

The constitutional state is a fragile structure. If you take away one of its pillars, it is in danger of collapsing. Especially in times when the constitutional rights of the individual have to take a back seat to pandemic-related injunctions, it needs to be handled very carefully!

In any case, Christmas is only once a year - Merry Christmas!!!