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.
