CRIMINAL LAW

The purpose of a retrial is to avoid or correct miscarriages of justice. The requirements of a retrial are very narrow, which is why its implementation is associated with considerable effort and precision and is therefore also one of the “supreme disciplines” of criminal law.

In principle, criminal proceedings are finally concluded when the judgment becomes final. Once a judgment has become final, it can no longer be challenged by the usual legal remedies (appeal and revision).

The background to this rule is the desire for legal certainty and legal peace. All parties to the proceedings, especially the convicted person and aggrieved persons, should be able to be sure at some point that the proceedings will not be revisited in the future and that they can rely on the permanence of the judgment with all its consequences.

Of course, such an arrangement also entails the risk that erroneous judgments will remain uncorrected (so-called “miscarriages of justice”).

In order to avoid or eliminate such material injustices in the sense of a functioning rule of law, there is the possibility of a retrial in very narrowly defined cases (Sections 359 et seq. of the Code of Criminal Procedure). If all other legal remedies have been exhausted, this is the only remaining possibility of exceptionally breaking the legal force of the judgment by repeating the criminal proceedings.

The so-called “grounds for reopening” are regulated in § 359 No. 1-6 StPO, with § 359 No. 5 StPO regularly playing the most important role:

• No. 1: production of a false or falsified document at the main hearing,
• No. 2: violation of the obligation to take an oath or intentional false testimony by a witness or expert,
• No. 3: criminal violation of an official duty by a judge or lay judge participating in the judgment,
• No. 4: annulment of a civil court judgment on which the criminal judgment is based by another final judgment,
• No. 5: bringing new facts or evidence suitable to justify an acquittal, a lesser sentence or a substantially different decision on a measure,
• No. 6: finding of a violation of the European Convention on Human Rights (ECHR) or its protocols by the European Court of Human Rights (ECtHR), on which the judgment is based.

The retrial is divided into two stages (addition and probation proceedings), in which first the admissibility and then the merits of the request for retrial are examined by the court.

If a request for reopening is successful, the legal force of the judgment is interrupted and the sentence is not enforced. If enforcement has already taken place, the convicted person is entitled to damages for the purposes of rehabilitation and compensation.

In Germany, only an extremely small percentage of all retrials are successful. This is due on the one hand to the immensely high legal requirements, but also to extremely strict judicial practice.

Irrespective of the obligation to be represented by a lawyer pursuant to Section 366 II of the Code of Criminal Procedure (StPO), it is therefore indispensable to have the underlying facts of the case, all decisions made in the proceedings to date, and the possible existence of grounds for a retrial thoroughly examined individually by a lawyer.

If you have been wrongly convicted, we will assess the realistic chances of success of an application for a retrial on the basis of a careful analysis of all aspects. If we file such an application with your consent, we will fully support you with our expertise throughout the further reopening proceedings.