BGH, Criminal Law, Mental State, Police and Prosecutors

How Many Innocent People Are in German Prisons?

The German press is obsessed with the American justice system. The coverage varies from wire-service blurbs about police shootings to in-depth researched pieces. Quality varies enormously, but is often low: German reporters tend to approach the topic with prejudices firmly in place, and screen their research to ensure those prejudices are confirmed. I’ve documented one example here.

For all their obsession with justice in America, German reporters seem to lack any curiosity about whether their own justice system works as well as advertised. German reporters give blanket publicity to studies like this one (g), which claims that up to 4% of people on death row in the USA may be innocent. How about innocent people convicted in Germany? Crickets. Well, not exactly: there are 2-3 stories per year on wrongful convictions in Germany — about 50 times fewer stories than on wrongful convictions in the USA.

A recent exception is this interesting essay (apparently available only in online-magazine form here) by the Stern crime reporter Kerstin Herrnkind, entitled “Dangerous Weaknesses”. (Thanks to DR for the tip). The essay begins with the famous and complex case of Gustl Mollath, who was unjustly incarcerated in a mental hospital in 2006 and later released (g). Herrnkind asks how many other people may be sitting in German prisons as a result of faulty or wrongful convictions, and quotes sources on the subject:

Ralf Eschelbach, Judge on the Federal Supreme Court, estimates that every fourth criminal judgment in Germany is erroneous. In 2017 alone, 104,400 defendants were sentenced to prison or jail. As soon as the convictions become final, the only option is a motion to re-open the case.1 Yet successful motions to re-open are extremely rare: most are rejected. Of approximately 720,000 criminal trials which were handled by German courts in 2017, only about 1300 were the result of successful motions to re-open the case.

The hurdles to obtaining retrial are high: New facts or evidence must have come to light which show that the prisoner is innocent. Alternatively it must be shown that the conviction was the result of a crime such as forgery, perjury, or abuse of process. However, the “new facts” are not discovered by the police; the prisoner must find them himself. To do this, prisoners need something which they rarely have, since they no longer have any income: lots of money. Plans to reform the law on re-opening criminal cases have been circulating for over 40 years, but have so far come to nothing.

“Once they have become final, the justice really system defends convictions tooth and nail,” says Hamburg criminal defense attorney Gerhard Strafe, who helped Mollath regain his freedom. “Even when the motion to re-open is based on the best arguments, courts will always try to find some excuse to avoid re-opening the case.” Judges’ resistance to questioning their own verdicts does not affect only victims of past errors — it also increases the risk that people will be convicted unjustly in the future, since those who will not admit mistakes cannot learn from them.

Quoting this recent study (g) on wrongful convictions in Germany, Herrnkind observes that the German justice system lacks a thorough quality-control mechanism to prevent unjust convictions. Further, there’s a disturbing lack of data: the last systematic examination of sources of error in German criminal judgments was conducted in the 1960s. When a criminology center investigated 31 wrongful convictions between 2015 and 2017, most of the prosecutors and judges they contacted who were involved in the cases did not respond at all. Herrnkind suggests the reason is likely professional pride: German judges must not only get high grades on their law exams, but also undergo extensive training and selection. The result, Herrnkind suggests, is an arrogant attitude toward those who question their judgments. Some behave like “demigods in black. Untouchable. Unteachable.”

The problems go even deeper. Even when it is established that someone was wrongly convicted in Germany, they are entitled to only €25 per prison day in compensation, a far lower figure than in most other countries. Further, Herrnkind notes, there are organizations in other countries, such as the Innocence Project in the USA, dedicated solely to searching for wrongful convictions and correcting them pro bono. Nothing of the sort exists in Germany. In fact, Herrnkind notes, Germany doesn’t even keep precise count of the number of convictions which were corrected after the case was re-opened.

Herrnkind also notes another obstacle to systemic critiques of German courts: the lack of reliable statistics. The court system doesn’t keep the kind of detailed records necessary to monitor the accuracy of its verdicts. One suspects there’s a good reason for that: The judicial system can reject criticism as anecdotal and lacking a firm statistical foundation — because the judicial system itself declined to collect the statistics in the first place. This is certainly not the only area of government in Germany to use this technique. Because courts don’t keep statistics which might prove embarrassing, the only source for reliable judgments is from outside observers (such as law professors) who need significant funding and institutional support to get at data which could have been gathered much more cheaply by courts themselves.

I have ordered a copy of the book on wrongful convictions which Herrnkind cites, and will post a review as time permits. In the meantime, though, it’s encouraging to see a German journalist raising this issue. After all, these are problems that a German reader can actually do something about. And I bet a German Innocence Project would find plenty of unjustly convicted people in German prisons.2


  1. A few points on terminology. When you are convicted of a crime in Germany, your sentence is not considered binding (rechtskräftig) until it has been reviewed by an appeals court (or unless the defendant has chosen not to appeal). There are two different kinds of criminal appeal in Germany, Berufung and Revision. The Berufung requires the reviewing court to essentially re-try the case. The Revision is a more technical appeal in which you are allowed to argue only that the judge made a legal error.

    This isn’t the time to get into the many complexities of German criminal appeals. The main point here is that a motion to re-open the case (Wiederaufnahme), occurs after the original verdict has become legally binding. Thus, it’s similar to a habeas corpus motion in an American or British court. So the way it goes in Germany is first you are convicted in a trial court, and then you file your appeal. For both of these steps you will be assigned a court-appointed lawyer. After your conviction is upheld on appeal, it becomes final (rechtskräftig). If you were sentenced to prison, you report to begin your sentence. If you now discover new evidence of your innocence, after you’re in prison and after your conviction has been upheld, you file a motion to re-open. As Herrnkind points out, the state will not provide you financial assistance to find evidence or file your motion to re-open: It already gave you a free lawyer at your trial and for your first appeal. After that, the state considers it has satisfied its duties to you. This is, incidentally, almost identical to the system in the United States: the state will appoint you a lawyer at your trial and your first appeal, but you will have to finance any further legal proceedings yourself.

  2. And, like its counterpart in the USA, would quietly reject the vast majority of applications from prisoners who claim they were unjustly convicted, but plainly were not.

3 thoughts on “How Many Innocent People Are in German Prisons?”

  1. „And, like its counterpart in the USA, would quietly reject the vast majority of applications from prisoners who claim they were unjustly convicted, but plainly were not.“

    But why and how would these organizations know any better than the court before who was justly convicted and who was not. I don‘t see any reason they would have better odds than the court system before – presumably even worse because they have the lawyers with the lower grades.

    1. The Innocence Project doesn’t have lawyers with the “lower grades”. Working as an intern or lawyer there is one of the most coveted positions in the USA, since you actually get to free the wrongfully convicted. They get thousands of CVs for any open positions. The lawyers all have solid academic credentials and often decades of experience.

      Judicial selection works completely differently in the USA, most state-court judges run for political office. They all are required to be lawyers, but their grades or the prestige of the law school they attended is largely irrelevant.

      And grades are irrelevant, as well as the fact that a trial’s already been conducted. The very point of a habeas corpus (in the USA) or a Wiederaufnahme is that *new evidence* has come up *after* the original trial which shows the defendant’s possible or probable innocence: DNA results or CCTV footage which *wasn’t available at the trial*, or a crucial witness has changed their position. If you approach the Innocence Project and just say: “The trial jury got it wrong,” with no new proof or convincing arguments, they will not take your case.

  2. „If you approach the Innocence Project and just say: “The trial jury got it wrong,” with no new proof or convincing arguments, they will not take your case.“

    Well, I would assume that by supplying some green slips of paper I could make them reconsider their stance no matter how bad my case.

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