Retrial Proceedings
The purpose of a reopening of proceedings is to avoid or correct miscarriages of justice. The requirements for a reopening are very strict, which is why the process involves considerable effort and precision, making it the “supreme discipline” of criminal law.
In principle, criminal proceedings are concluded once the judgment becomes final and binding. Once a judgment is final, it can no longer be challenged through standard legal remedies (appeal and revision).
The background to this rule is the desire for legal certainty and legal peace. All parties involved in the proceedings, particularly the convicted person and the victims, should eventually be able to rest assured that the case will not be reopened in the future and that they can rely on the finality of the judgment and its consequences.
Such a regulation naturally also carries the risk that erroneous judgments remain uncorrected (so-called “miscarriages of justice”).
Strictly limited grounds for a reopening of proceedings
To avoid or eliminate such substantive injustices within a functioning rule of law, the possibility of a reopening exists in very strictly limited cases (Sections 359 et seq. of the German Code of Criminal Procedure – StPO). Once all other legal remedies have been exhausted, this represents the only remaining way to exceptionally bypass the finality of a judgment by retrying the criminal case.
The so-called “grounds for reopening” are set out in Section 359 Nos. 1–6 StPO, with Section 359 No. 5 StPO typically playing the most significant role:
- No. 1: Presentation of a forged or falsified document during the main trial,
- No. 2: Perjury or intentional false testimony by a witness or expert,
- No. 3: Criminal breach of official duty by a judge or lay judge involved in the judgment,
- No. 4: Reversal of a civil court judgment on which the criminal judgment was based by another final judgment,
- No. 5: Presentation of new facts or evidence capable of justifying an acquittal, a lesser sentence, or a significantly different decision regarding a measure of reform and prevention,
- No. 6: A finding by the European Court of Human Rights (ECHR) of a violation of the European Convention on Human Rights (ECHR) or its protocols on which the judgment is based.
The procedure for reopening proceedings
The reopening procedure is divided into two stages (the admissibility and the merits stages), in which the court first examines the admissibility and then the merits of the application for a reopening.
If a request for a reopening is successful, the finality of the judgment is set aside and the sentence is not executed. If execution has already taken place, the convicted person is entitled to claims for damages for the purpose of rehabilitation and compensation.
In Germany, only an extremely small percentage of all reopening proceedings are successful. This is due on the one hand to the immensely high legal requirements, and on the other hand to the extremely strict practice of the judiciary.
Regardless of the mandatory legal representation required under Section 366 (2) StPO, it is therefore essential to have the underlying facts, all previous decisions in the case, and the potential existence of grounds for a reopening thoroughly and individually reviewed by a lawyer.
If you have been wrongfully convicted, we will assess the realistic chances of success for an application for a reopening based on a careful analysis of all aspects. If we file such an application with your consent, we will provide full expert support throughout the entire subsequent reopening procedure.