MPP defence lawyers’ successful leapfrog appeal

In procee­dings for obstruc­tion of justice in office (Section 258a of the German Criminal Code), we chal­lenged the judge­ment of the local court with a detailed and well-founded objec­tion on the merits by means of a so-called “Sprung­re­vi­sion”.

In the main hearing, we had applied for our two clients to be acquitted. However, the local court sentenced them to fines of 80 and 90 daily rates.

The Higher Regional Court upheld the appeal and over­turned the judge­ment. We are now starting all over again — the aim remains an acquittal.

What is a leapfrog appeal?

Pursuant to Section 335 (1) of the Code of Criminal Proce­dure, a judge­ment against which an appeal is admis­sible can also be contested with an appeal on points of law instead of an appeal.

Accor­dingly, both an appeal and an appeal on points of law may be lodged against a first instance judge­ment of the local court.

If the appeal lodged is an appeal on points of law, this is referred to as a “leapfrog appeal” (the possible appeal as a second instance of fact is lite­rally skipped).

Pursuant to Section 335 (2) of the Code of Criminal Proce­dure, the court that would be called upon to decide on a leapfrog appeal if the appeal had been lodged after the appeal had been lodged. The compe­tent court is ther­e­fore not the Federal Court of Justice, as in the case of an appeal against a first-instance judge­ment by a regional court, but the higher regional court with local juris­dic­tion (Section 121 (1) no. 1 GVG).

In prac­tice, an inde­fi­nite appeal is usually lodged initi­ally. In this respect, it must initi­ally only be expressed that the defen­dant is contesting the judge­ment without having finally decided on an appeal.

If no grounds are submitted within the one-month period for filing an appeal, which begins when the written grounds for the judge­ment are served, the appeal is auto­ma­ti­cally treated as an appeal and a second factual instance takes place.

If the Higher Regional Court finds that there are indeed errors of law, the judge­ment is set aside and then referred back to the Local Court. The defen­dant thus wins one instance. However, if the appeal is rejected, the defen­dant has skipped the appeal instance and has ther­e­fore lost it. In view of this risk, this legal remedy is very rarely utilised.