Criminal Appeals in Germany

Die Berufung is the appeal process where the ruling is questioned based on the facts of the case. In such an appeal mechanism, the whole case can be re-opened and assessed by a higher court. This mechanism can be used when appealing cases heard at Courts of First Instance. In other words, when the local court (Amtsgericht) has heard the case. Such an appeal cannot be brought against appellate courts or higher courts.

An appeal based on questioning the facts is one where the evidence can be re-examined and where witnesses can be recalled. The court of appeal, in this case, is not bound by the decisions made by the lower court and can thus make a completely different decision. New witnesses and experts can also be called to make testimony. Such appeal, based on the facts, allows for parties to question judgments, especially when new evidence emerges. 

This method of appeal does have limitations. For example, the decision to launch this form of appeal must be made and filed one week after the previous decision. This period allowing for the appeal cannot be extended; therefore, time is of the essence when going down this path.

Once again, it should be reiterated that it is only available to appeal decisions made on the first instance. Such an appeal can be lengthy and time-consuming as evidence and witnesses will again have to be gathered. This form of appeal can be worthwhile to pursue should new evidence or witnesses have emerged in the time since.

Should a person go down this route, their sentence from the previous case is not put into place until after the decision of the appeal (should the appeal go the way of the earlier decision). The suspect benefits from being seen as “innocent until proven guilty”, and thus, any fines or prison sentences will not be served at this point. Should a suspect be seen as a “flight risk”, they may be placed in pre-trial detention; however, such a decision significantly infringes on their rights. Availing of advice from a criminal defence lawyer during such a time is vital.

The appeal based on points of law (die Revision) is a more technical and complex route. For such an appeal, it is crucial to have an experienced criminal defence lawyer in your corner and especially one familiar with criminal procedure law in Germany. Under § 337 German Code of Criminal Procedure, the grounds for making such an appeal are:

(1) An appeal on points of law may be filed only on the ground that the judgment was based on a violation of the law.

(2) Failure to apply a legal norm or erroneous application of a legal norm shall constitute a violation of the law.

Therefore, such a form of criminal appeal is not a complete analysis of the case itself but simply of how the judge applied the law to the case. This form of appeal can be made for decisions made at higher courts and courts of first instance. In such cases, there is no referring to new witnesses or expert statements. The facts of the case, as prior established, are entirely accepted by the court. The discussion that does take place during the appeal based on points of law is between the legal professionals. Your choice of criminal lawyer is, therefore, absolutely vital when even considering this form of appeal.

This form of appeal is often made in writing and then given to the higher court to examine. Once again, they will be reviewed to determine whether the law was applied appropriately and will not be seeking witnesses to make statements etc. If they accept the appeal, they can order the trial to be re-opened based on their striking down of the judge’s interpretation of the law (or their failure to apply the legal norm) in the decision.

Several steps and specific legal procedures are involved when launching a criminal appeal in Germany. Here’s a general overview of how it works.

After a criminal trial concludes with a verdict, the defendant or their legal representative can file an appeal if they believe there are legal or factual errors in the trial proceedings or the verdict. The first step is to give notice of intent to appeal to the trial court within a specific timeframe, usually within one week after the judgment is pronounced.

After giving notice of intent to appeal, the appellant has a certain period, typically one month, to prepare a written appeal brief outlining the grounds for the appeal. This brief must specify the errors made during the trial that warrant the appeal. This written appeal brief is then submitted to the appellate court, which is generally a higher regional court (Oberlandesgericht) or the Federal Court of Justice (Bundesgerichtshof), depending on the type of case. The appellate court reviews the case based on the appeal brief and the trial record. The prosecution also has the opportunity to submit a response to the appeal brief, addressing the arguments raised by the appellant and defending the trial court’s decision. In some cases, the appellate court may hold an oral hearing to allow both parties to present their arguments in person. This is more common in serious cases or when complex legal issues are involved.

The appellate court reviews the case, considering both the appeal brief and the trial record. It can affirm the lower court’s decision, overturn the conviction, modify the sentence, or order a new trial. The decision is typically rendered in a written judgment, which includes the court’s reasoning.

Depending on the type of case and the appellate court’s decision, there might be the option to file a further appeal called “Revision” to the Federal Court of Justice. However, revision is generally only allowed on specific legal grounds, such as law violations or procedural errors.

Once the appellate court’s decision becomes final, it is implemented. If the conviction is overturned, the appellant is released from custody if applicable. If a new trial is ordered, the case returns to the trial court for retrial.

It’s important to note that the specific procedures and timeframes can vary based on the nature of the case, the court’s workload, and changes in laws and regulations. Suppose you’re considering filing a criminal appeal in Germany. In that case, it’s highly recommended to consult with our experienced criminal defence lawyers, who can guide you through the process and ensure that all the necessary steps are taken correctly.

When determining whether to appeal a criminal conviction, it is essential to be aware of the grounds under which a sentence can be appealed. These reasons relate to errors made during the trial process or violations of legal principles. Here are some common grounds on which a criminal conviction or sentence can be appealed:

• Procedural errors: One of the most common grounds of appeal applies in cases where significant procedural mistakes during the trial may have affected the fairness of the proceedings, such as violations of the defendant’s right to a fair trial; the conviction or sentence could be appealed. Procedural errors might include issues related to evidence handling, witness testimonies, or the conduct of the trial.
• Legal errors: Another ground under which an appeal can be launched is a legal error, where there is an alleged error in the trial court’s application or interpretation of the law. If the trial court incorrectly applied legal principles or misinterpreted statutes, it could lead to an appeal.
• Factual errors and new evidence: If new evidence comes to light that was not available during the trial and could significantly impact the outcome, the conviction or sentence might be appealed. Factual errors might also involve situations where the trial court’s findings are not supported by the evidence presented during the trial.
• Bias or Conflict of Interest: If there is evidence that the judge or any other participant in the trial had a bias or conflict of interest that may have influenced the outcome, this could serve as grounds for appeal.

It’s critical to consult with an expert in the field of German criminal law, as the specific grounds for appeal may vary depending on the jurisdiction and the type of case.