1. The guidelines of jurisdiction
The Federal Court of Justice has consistently formulated criteria in its case-law as to how the testimonies of witnesses in the above-mentioned cases are to be classified. An exemplary judgment of the Federal Court of Justice of 7 March 2012 (2 StR 565/11) summarises the guidelines as follows:
“In particular, it is necessary to carefully analyse the content of the information, to examine as closely as possible the history of the incriminating statement […], to evaluate the ascertainable motive for the statement […] and to examine the consistency, detail and plausibility of the information”.
For example, it must be included in the assessment whether a described fact can reasonably have occurred at all in this way. In addition, the statements in question are examined for their consistency and conclusiveness, whether they are freely presented or only fragmentarily recalled, constantly repeated or variably adapted to demand. In addition, the Federal Court of Justice (BGH) substantiated this in its judgment of 10.10.2012 (5 StR 316/12):
“If one person’s word stands against another’s, the court of fact must subject the testimony of the sole prosecution witness to a special credibility test. This applies in particular if the sole witness for the prosecution in the main hearing no longer maintains his accusations in whole or in part or if the initial description of further acts is not followed. It must be taken into account that in this constellation the accused has only limited possibilities of defence.”
From this it can be concluded that the decision rule in dubio pro reo is not automatically applied in favour of the accused, but that a particularly intensive evaluation of the incriminating statements must first be carried out. Only if doubts remain after this assessment of the evidence it can be assumed in the defendant’s favour that the incriminating statement is not sufficient for the court to be convinced of his guilt.
A critical point here is that this rather intuitive-looking assessment at no time allows a certain and reliable statement to be made about the outcome of the proceedings. Admittedly, § 261 StPO is formulated openly (“The court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole.“), from which the familiar expression also derives from the “assessment of evidence as the very own task of the trial judge”.
According to the consolidated view of the Federal Court of Justice, conviction in the sense of § 261 StPO is, however, already present when “a sufficient degree of certainty, based on life experience, is no longer given, in contrast to which reasonable doubts based not merely on theoretical possibilities do not arise“. Due to this cryptic and at the same time trivial openness of the definition, “free conviction” is the greatest gateway for wrong decisions, especially in the case of delicate and sensitive credibility and credibility assessments.