Appeal proceedings (appeal, revision & complaint)

If you have been found guilty by a criminal court and sentenced to a penalty, you have various options for defending yourself against the judgment that has been handed down.

The court decision against you is not necessarily final. In the so-called appeal procedure, you have the possibility of proceeding against this decision before the so-called court of appeal or appeal court – a court of higher instance.

Depending on the court where the first instance hearing took place, an appeal or (leap) revision is the legal remedy.

We will be happy to discuss with you in a personal meeting which legal remedy is appropriate in your specific case and to what extent the appeal procedure promises success.

Appeal

An appeal is admissible against judgments of the district court (judgments of the criminal judge or the court of lay assessors).

The appeal may be lodged within one week after the judgment has been pronounced (time limit for appeal). It is therefore of particular importance that you contact us as soon as possible after the main hearing has taken place.

By filing the appeal, the formal legal force of the judgment is suspended. This means that the verdict of the district court is not legally binding and the penalty set in the verdict is not executed for the time being.

It is possible to appeal only against individual points, such as the sentence.

The competent court of appeal is the Regional Court (Small Criminal Division). The appeal proceedings do not constitute a review of the first-instance decision, but a completely new factual instance. The case is heard anew, i.e. a new main hearing takes place, in which the witnesses are heard again and evidence is evaluated again. New evidence may also be presented and additional witnesses may be called.

In case of an appeal filed by the defendant, there is a so-called prohibition of aggravation. According to this prohibition, the defendant cannot be sentenced to a higher penalty. Only in the – rare – case that (also) the public prosecutor’s office has filed an appeal against the verdict of the district court, a worsening can occur.

Revision

An appeal is possible if there has been a violation of procedural or substantive law by the court of first instance.

An appeal is the legal remedy against first-instance judgments of a regional court and a higher regional court. In this case, the Federal Court of Justice (BGH) is responsible for the appeal. The appeal can also be filed as a so-called “jump appeal” against first-instance judgments of the district court and against appeal judgments of the regional court following a first-instance judgment of a district court. In these cases, a higher regional court is responsible for the appeal.

The appeal must be lodged within one week of the judgment being pronounced (time limit for appeal). It is therefore of particular importance that you contact us as soon as possible after the main hearing has taken place.

By filing the appeal, the formal legal force of the judgment is suspended. This means that the judgment does not become final and the sentence imposed is not enforced for the time being.

The right of appeal differs significantly from the right of appeal.

In the case of an appeal, there is no further hearing of the facts, the witnesses are not summoned again, the evidence is not presented again. The facts established in the first instance are used as a basis and the appellate court assesses whether the proceedings in the first instance were conducted lawfully and whether the judgment was conclusively based on the established facts.

Unlike appeal proceedings, appeal proceedings are mostly purely written proceedings (only in rare exceptional cases do oral hearings take place, but in these hearings the parties to the proceedings exclusively discuss the violation of the application of the law).

Unlike in the case of an appeal, in the case of a revision, the appeal filed must be substantiated by means of a so-called notice of revision. The statement of grounds must be submitted by a lawyer (or by the defendant for the record at the court registry) within one month of service of the written reasons for the judgment.

In the event of a successful appeal, the appellate court (partially) sets aside the first-instance judgment and refers it back to the original court, which then conducts a new hearing – taking into account the comments of the appellate court.

The appeal represents the last chance to correct an erroneous judgment and thus to mitigate or even avert the associated penalty.

Since it is mandatory that the grounds for appeal be submitted within one month of service of the judgment and there is therefore little time to carefully and meticulously review your case, at best get in touch immediately if you are considering conducting appeal proceedings.

Complaint 

In addition to the appeal and the revision, the appeal is the third available legal remedy in the Code of Criminal Procedure. It is governed by sections 296 et seq. of the Code of Criminal Procedure.

The appeal may be lodged by the public prosecutor’s office, the defendant or the defendant’s legal representative or defense counsel, the private plaintiff or the joint plaintiff.

If the appeal is filed by the defendant himself or by the public prosecutor’s office in his favor, the contested decision may not be changed to the disadvantage of the defendant – a prohibition of deterioration applies (so-called “reformatio in peius”). If, on the other hand, the public prosecutor lodges the appeal to the disadvantage of the defendant, the new decision may also change the defendant’s position negatively.

Like other legal remedies, the appeal also has a devolutive effect. This means that a court of higher instance decides on the matter once again. Accordingly, in the case of decisions and orders at the level of the local court, the regional court has jurisdiction (Section 73 I GVG); for decisions at the regional court level, in turn, the higher regional court (Section 121 I Nos. 2 and 3 GVG). The Federal Supreme Court is the competent court of appeal only in certain cases (Section 135 II GVG).

However, the original court can also rectify the appeal (Section 306 II 1 of the Code of Criminal Procedure) before the court of higher instance deals with it.

The court of appeal shall review the contested decision from a legal and factual point of view. If it considers the appeal filed to be admissible and well-founded, it shall decide on the merits of the case by means of a separate order (Section 309 II of the Code of Criminal Procedure).

However, the appeal does not have a suspensive effect. The formal legal force of the contested decision is not suspended in this respect, so that it can be executed. This is a decisive difference to the appeal and revision.

The Code of Criminal Procedure distinguishes between three types of appeal:

• Simple appeal, § 304 StPO

The simple appeal is the most common in practice and is, in a sense, a real “all-rounder”. It is not subject to any time limit and can be filed at any stage of the proceedings. It is admissible against any decisions and orders of courts of first instance or appellate courts (e.g. detention or search orders).

A simple appeal may be filed, in addition to the above-mentioned parties, by witnesses, experts and other persons.

• Immediate appeal, § 311 StPO

The immediate appeal is only necessary in certain cases expressly mentioned in the law (e.g. in the case of a decision imposing a total penalty). It must be filed within one week.

• Further appeal, § 310 StPO

In principle, the court decision on a complaint cannot be challenged again with a complaint. § Section 310 I of the Code of Criminal Procedure makes an exception to this in the cases of arrest, temporary placement and certain orders of property arrest: in these constellations, a so-called further appeal can be lodged against the corresponding decision of the Regional Court or Higher Regional Court on the appeal.

A detailed statement of grounds, which comprehensively addresses all legal and factual aspects, is an indispensable prerequisite for the success of an appeal before the appeal court. We will be happy to advise you on your options and the chances of success of the appeal. If we consider a positive outcome to be realistic, we will file an appeal on your behalf and assist you throughout the rest of the process.