A criminal conviction in court need not mark the culmination of a case. In accordance with German legal provisions, the avenue of appeal against criminal charges remains open, allowing for a reevaluation of the case within the judicial realm. The choice between appealing based on legal points or the factual and legal aspects of the case is a pivotal decision. In German legal terminology, “die Berufung” pertains to appeals encompassing both facts and law, while “die Revision” denotes appeals grounded solely in legal points.
At Schlun & Elseven Rechtsanwälte, we recognise that a criminal appeal is not merely a legal process; it’s an opportunity to rectify errors, protect your rights, and pursue a just outcome. Our experienced team of German criminal defence lawyers is well-versed in the intricacies of the appellate process. It is dedicated to ensuring our clients receive a rigorous and comprehensive defence.
Please, do not hesitate to contact us directly for specialised criminal defence services.
Appeals in Germany: Question of Facts of the Case
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.
Appeals based on Points of Law
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.