Appellate Proceedings

If you have been found guilty by a criminal court and sentenced, you have various options to challenge the judgment. The court’s decision against you is not necessarily final. In the so-called appeals process, it is possible to take action against this decision before a court of higher instance—either a court of appeal or a court of revision.

Depending on which court held the first-instance trial, an appeal on fact and law (Berufung) or an appeal on law only (Revision/Sprungrevision) is the admissible legal remedy.

We would be pleased to discuss in a personal consultation which legal remedy is appropriate in your specific case and to what extent the appeals process promises success.

Legal Remedy: Appeal on Fact and Law (Berufung)

An appeal on fact and law is admissible against judgments of the Local Court (judgments by a single criminal judge or the lay assessor court).

The appeal must be filed within one week of the pronouncement of the judgment (appeals deadline). It is therefore of particular importance that you contact us as soon as possible after the main trial date has taken place.

Filing the appeal stays the formal legal force of the judgment. This means that the judgment of the Local Court does not become final, and the sentence imposed in the judgment is initially not enforced.

It is possible to direct the appeal only against specific points of grievance, such as the severity of the sentence.

The competent appellate court is the Regional Court (Small Criminal Chamber). The appeal process is not merely a review of the first-instance decision, but a completely new instance of fact. The matter is retried, meaning a new main hearing takes place in which witnesses are heard again and evidence is re-evaluated. New evidence can also be presented and further witnesses can be summoned.

In the event of an appeal filed by the defendant, the so-called prohibition of reformatio in peius (prohibition of worsening) applies. According to this prohibition, the defendant cannot be sentenced to a higher penalty. A worsening can only occur in the rare case that the public prosecutor’s office has (also) filed an appeal against the Local Court’s judgment.

Legal Remedy: Appeal on Law Only (Revision)

An appeal on law only is considered if there is a violation of procedural law or substantive law by the court of first instance.

An appeal on law only is the admissible legal remedy against first-instance judgments of a Regional Court or a Higher Regional Court. In this case, the Federal Court of Justice (BGH) is responsible for the revision. The appeal can also be filed as a so-called leapfrog appeal (Sprungrevision) against first-instance judgments of the Local Court, as well as against appellate judgments of the Regional Court following a first-instance judgment of a Local Court. In these cases, a Higher Regional Court is responsible for the revision.

The appeal on law must be filed within one week of the pronouncement of the judgment (appeals deadline). It is therefore of particular importance that you contact us as soon as possible after the main trial date has taken place.

Filing the appeal stays the formal legal force of the judgment. This means that the judgment does not become final, and the imposed sentence is initially not enforced.

The appeal on law (Revision) differs significantly from the appeal on fact and law (Berufung).

In the case of a Revision, no further hearing of facts takes place; witnesses are not summoned again, and evidence is not presented again. The facts established in the first instance serve as the basis, and the court of revision assesses whether the first-instance proceedings were conducted lawfully and whether the judgment was conclusively based on the established facts.

Unlike an appeal on fact and law, a revision procedure is mostly a purely written procedure (oral hearings only take place in rare exceptional cases, in which the parties involved exclusively discuss the violation of the application of law).

Unlike the appeal on fact and law, the legal remedy in the case of a Revision must be justified by means of a so-called statement of grounds for revision. The justification must be provided by a lawyer (or by the defendant for the record of the court registry) within one month after service of the written reasons for the judgment.

In the event of a successful revision procedure, the court of revision sets aside the first-instance judgment (in whole or in part) and refers it back to the original court, which then conducts a new trial—taking into account the observations of the court of revision.

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

Since the statement of grounds for revision must be submitted within one month of the service of the judgment, leaving little time to carefully and meticulously examine your case, it is best to contact us immediately if you are considering a revision procedure.

Legal Remedy: Interlocutory Appeal (Beschwerde)

In addition to the Berufung and Revision, the Beschwerde is the third available legal remedy in the Code of Criminal Procedure. It is regulated in §§ 296 et seq. StPO.

The interlocutory appeal can be filed by the public prosecutor’s office as well as by the accused or their legal representative or defense counsel, the private prosecutor, or the joint secondary prosecutor.

Insofar as the appeal was filed by the accused themselves or by the public prosecutor’s office in their favor, the contested decision may not be changed to the detriment of the accused—a prohibition of worsening applies (so-called “reformatio in peius”). If, on the other hand, the public prosecutor’s office files the appeal to the detriment of the accused, the new decision can also change their position negatively.

Like other legal remedies, the interlocutory appeal also has a devolutive effect. This means that a court of higher instance decides on the matter again. For orders and rulings at the Local Court level, the Regional Court is therefore responsible (§ 73 I GVG); for decisions at the Regional Court level, the Higher Regional Court is responsible (§ 121 I No. 2 and 3 GVG). The Federal Court of Justice is the competent court of appeal only in certain cases (§ 135 II GVG).

However, the original court can also remedy the appeal beforehand (§ 306 II 1 StPO) before the higher court deals with it.

The appellate court reviews the contested decision in both legal and factual terms. If it considers the filed appeal to be admissible and well-founded, it decides on the matter again by means of a separate order (§ 309 II StPO).

In principle, however, the interlocutory appeal does not have a suspensive effect. The formal legal force of the contested decision is not stayed, so it can be enforced. This is a crucial difference from the Berufung and Revision.

The Code of Criminal Procedure distinguishes between three types of interlocutory appeals:

Simple Appeal, § 304 StPO

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

In addition to the parties mentioned above, a simple appeal can also be filed by witnesses, experts, and other persons.

Immediate Appeal, § 311 StPO

The immediate appeal is only necessary in certain cases explicitly named in the law (e.g., in the case of a consolidated sentence order). It must be filed within one week.

Further Appeal, § 310 StPO

In principle, a court decision on an interlocutory appeal cannot be challenged again with another appeal. § 310 I StPO forms an exception to this in cases of arrest, provisional placement, and certain orders of asset seizure: In these constellations, a so-called further appeal can be filed against the corresponding decision of the Regional or Higher Regional Court regarding the initial appeal.

For an appeal to be successful before the appellate court, a detailed justification that comprehensively addresses all legal and factual aspects is an indispensable requirement. We would be happy to advise you on your options and the chances of success for this legal remedy. If we assess a positive outcome as realistic, we will file an appeal for you and support you throughout the entire further process.