In proceedings concerning obstruction of justice in office (§ 258a StGB), we challenged the Local Court judgment by way of a so-called leapfrog appeal, based on a substantive complaint with detailed reasoning.
At the main hearing, we applied for the acquittal of both of our clients. However, the Local Court sentenced them to fines of 80 and 90 daily rates.
The Higher Regional Court upheld the appeal and set aside the judgment. The proceedings will now start again—our objective remains an acquittal.
What is a leapfrog appeal?
Pursuant to § 335(1) StPO, a judgment against which an appeal is admissible may be challenged not only by appeal but also by revision.
Accordingly, both an appeal and a revision may be lodged against a first-instance judgment of the Local Court.
If the remedy lodged is a revision, it is referred to as a so-called leapfrog appeal (the possible appeal as a second instance on the facts is, in the truest sense of the word, skipped).
Pursuant to § 335(2) StPO, a leapfrog appeal is decided by the court that would have been competent if the revision had been lodged after an appeal had been conducted. The competent court is therefore not, as in the case of a revision against a first-instance judgment of a Regional Court, the Federal Court of Justice, but the locally competent Higher Regional Court (§ 121(1) no. 1 GVG).
In practice, an unspecified legal remedy is usually lodged initially. In this respect, it is sufficient at first to indicate that the defendant is challenging the judgment, without having to commit definitively to a specific remedy.
If no grounds are submitted within the one-month period for stating the grounds of revision, which begins upon service of the written reasons for the judgment, the remedy is automatically treated as an appeal and a second instance on the facts takes place.
If the Higher Regional Court finds that legal errors do in fact exist, the judgment is set aside and the case is then remitted to the Local Court. The defendant thereby gains an additional instance. If, however, the leapfrog appeal is rejected, the defendant has skipped—and thus lost—the appeal instance. Given this risk, this remedy is used only very rarely.
In practice, a potential leapfrog appeal can be prevented by the public prosecutor’s office by lodging an appeal. In that case, the defendant’s revision is treated as an appeal pursuant to § 335(3) sentence 1 StPO as long as the public prosecutor’s appeal has not been withdrawn or dismissed as inadmissible. If the appeal is lodged solely for the purpose of preventing the leapfrog appeal, criminal defence lawyers refer to this as a so-called blocking appeal by the public prosecutor’s office.