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Criminal Appeals in Germany

A criminal conviction in court does not have to be the end of the case. Under German law, it is possible to appeal against criminal charges and bring the case back to the courtroom. This can be accomplished by determining whether the appeal should be made on the point of law or on the facts of the case and the law. In German legal terminology “die Berufung” is the appeal on the facts of the case and the law whereas “die Revision” is an appeal strictly based on the point of law. In this article, we will examine the difference between the two forms of appeal available under German law.

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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 case has been heard by the local court (Amtsgericht). 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 re-called. 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 and 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 first instance. Such an appeal can be a lengthy and time-consuming process as evidence and witnesses will once again have to be gathered. Should new evidence or witnesses have emerged in the time since, this form of appeal can be worthwhile in pursuing.

Should a person go down this route, then their sentence from the previous case is not put into place until after the decision of the appeal (should the appeal go the route of the previous 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 is a major infringement on a person’s rights. Availing of the advice from a criminal 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.

Such a form of criminal appeal is therefore not a full 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 as well as 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 fully accepted by the court. In fact, 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 examined 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.


Restoration of Status Quo: Missed Time Limits

If the time limit for launching a criminal appeal has elapsed without the submission being made, there is a method by which the defendant can make a claim for the restoration of the status quo under § 44 StPO. This may apply where the failure to reach the deadline was due to no fault of their own. The person making this claim must be able to demonstrate why the failure to make the necessary applications in the allotted deadline was not their fault.


Criminal Appeals in Germany: Our Services

When it comes to appeals in Germany, our lawyers will work with you to devise the best strategy for your case. Every case is different and every decision must be based on what is right for the particular situation. Our criminal lawyers are experienced in the field and will provide knowledgeable and clear counsel when it comes to strategizing and planning the next step. We will work with you in deciding which form of appeal is suitable for your case and from there, we will work together to get the best outcome.

For cases involving an appeal based on the law (die Revision), our criminal lawyers are experienced legal professionals who have a deep knowledge of criminal procedural norms in Germany. In most situations, following first instance decisions, the appeal based on the facts of the case (die Berufung) would be the preferred route and should this be the appeal route pursued we ensure that our clients are on the same page of us throughout the appeal process.

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Practice Group: German Criminal Law

Practice Group:
German Criminal Law

Philipp Busse

Lawyer

Dr. Julius Hagen

Lawyer

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