The most important facts at a glance
- The appellate court reviews the admissibility of the appeal, procedural requirements, and procedural objections raised.
- A criminal proceeding can be stayed in the appellate instance upon the occurrence of procedural impediments or for reasons of expediency.
- A specialized Criminal defense lawyer can help you with your rights.
I. Subject of Examination
The appellate court first examines all procedural issues that it must review on its own motion.
Primarily, this includes the admissibility of the appeal, meaning compliance with the formal requirements for filing and substantiating the appeal.
Furthermore, in the appeal, the court primarily examines whether the procedural preconditions exist or whether procedural obstacles are present. It is examined whether the defendant is not already being prosecuted or has already been convicted for the same procedural offense in another proceeding. It is further examined whether individual allegations have already expired and whether, in the case of offenses requiring prosecution upon complaint, a valid criminal complaint was filed in due time. It must also be examined whether the defendant is not unfit to stand trial or enjoys immunity and is of criminal responsibility. There must be a valid indictment and a valid order for commencement of proceedings, and the court rendering the decision must have had subject-matter and territorial jurisdiction. The existence of an unlawful provocation of the offense also constitutes a procedural obstacle. An unlawful delay of proceedings is to be a procedural obstacle in exceptional cases.
Even if the substantive objection is raised in a general way, the court in the appellate instance must also review the entire judgment in terms of substantive law. This includes examining whether the legal norms that criminalize certain behaviors and the norms regarding the prescribed legal consequences have been applied correctly. Furthermore, the court must present the underlying facts accurately and comprehensibly, and must not have made any erroneous assessment of evidence.
In appeals, the court only examines violations of procedural law if procedural objections have been properly raised in that regard. The correctness of the appellate arguments is clarified in an informal evidence procedure, if necessary. In particular, explanations from individual parties to the proceedings are obtained by the public prosecutor's office in the course of preparing their counter-statement to the defense's appeal. If this does not happen, the appellate court may request official declarations.
The ground for revision that has the furthest reaching effect takes precedence in the examination. Furthermore, there is no order of examination by the court. If an objection leads to the annulment of the judgment, further raised objections are no longer to be examined.
If the appeal is limited by the defense to specific points, this also limits the appellate court's scope of review.
II. Termination of Proceedings
Even in the appellate instance, a criminal proceeding can be discontinued in whole or in part.
This is primarily considered when a prosecutorial impediment arises during the review process, such as the onset of an absolute statute of limitations.
Furthermore, dismissals for reasons of expediency are possible according to § 153 StPO due to the minor nature of the offense or according to § 153a StPO due to the minor nature of the offense, subject to conditions. Dismissals according to § 154 and § 154a StPO are also relevant in view of other procedural offenses or offenses committed concurrently.
III. Annulment of the Judgment
To the extent an appeal is successful, the court shall set aside the contested judgment in the conviction, along with the related findings, and remand it to a different panel of judges of the court whose judgment was contested.
As a general rule, the annulment of the school award also leads to the annulment of the sentence.
If individual sentences have been incorrectly formed, this generally leads to the annulment of the overall sentence.
To the extent that the conviction is overturned, the underlying findings of the judgment are also overturned. This is usually also stated in this way by the court in the appeal.
If there are procedural obstacles, the findings on the factual events are only set aside if they concern prohibitions of jurisdiction. This is not the case with prohibitions of punishment, e.g., if a criminal complaint is withdrawn.
Procedural errors lead to the annulment of all findings affected by them if they – as is generally the case – concern the process of acquiring knowledge. This is not the case, for example, with a violation of the principle of public hearings during the main trial.
In the case of factual and legal defects, the findings of the judgment will be upheld as far as possible.
The court that is re-examining the proceedings in the lower instance after remand by the appellate court is bound by the findings of the appealed judgment insofar as they have not been overturned. Taking of evidence on findings that have not been overturned is inadmissible.
IV. The Court's Own Decision on the Merits on Appeal
In certain cases, the appellate court can also make its own substantive decision.
Space is available for this only to the extent that the judgment of the trial court has been overturned.
The prerequisite is still that sufficient findings have been made, which remain after the appellate court's review, and also support the appellate court's decision on the merits.
The court's own decisions can be made on appeal by way of a ruling and without an oral hearing.
If the findings of the contested judgment do not support the conviction, the appellate court must acquit the defendant. In the case of irremediable procedural obstacles, the appellate court shall discontinue the proceedings.
Furthermore, the appellate court can impose a per-point sentence that is not subject to its discretion. In current law, this only applies to life imprisonment.
Upon request of the public prosecutor, the appellate court may also impose the legally lowest penalty or even waive punishment if the law permits this for the respective offense.
If the trial court has incorrectly determined the sentence, the appellate court can nevertheless refrain from overturning the judgment if the imposed legal consequence is appropriate. Upon application by the prosecution, it can also appropriately reduce the legal consequence.
If a consolidated sentence has been incorrectly formed, the appellate court may refer the case back to the trial court for a subsequent consolidated sentencing determination in a summary proceeding. This also applies if a new consolidated sentencing determination is necessary due to a decision on the merits by the appellate court itself.
Furthermore, appellate courts repeatedly carry out so-called „conviction adjustments,“ in the course of which individual convictions are dropped or amended. The Federal Court of Justice also repeatedly corrects the pronouncement of consequences or upholds it with an amended conviction.
Otherwise, higher courts also repeatedly issue orders by way of a resolution, for example, the duration of preliminary enforcement of measures or the ratio of pre-trial detention served abroad to be credited.
Frequently asked questions
Yes, it always makes sense to submit a specific request for revision in order to clarify the aim of the revision.
As a rule, this leads to the court denying the respective procedural objection in the appeal. In individual cases, however, it may interpret the statement of grounds for appeal as a whole and thus help a procedural objection to succeed.
No. In the case law of the higher courts, the free evidence procedure is limited by the prohibition of reconstruction, i.e. the main hearing is not repeated in the appeal proceedings. The free evidence procedure essentially only serves to clarify procedural facts.
A dismissal due to procedural obstacles is mandatory, but rare. A discontinuation for reasons of opportunity will mainly be considered for less serious offenses, i.e. such discontinuations are more likely at the higher regional courts than at the Federal Court of Justice.
This depends entirely on the decision of the appellate court. The proceedings will only be retried if the guilty verdict and the findings have been set aside. If the findings in the contested judgment are not overturned, the case does not have to be retried after the case has been referred back to a different panel of the court of first instance.
As a rule, the court can only make its own decision on the merits in an appeal on points of law, as the findings of the contested judgment only remain valid in the case of appeals on points of law. These form the basis for the court of appeal's own decision on the merits.
The court's own decision on the merits in the appeal must not come as such a surprise to the defendant that it restricts his or her defense options. Prior to this, it may be necessary for the court in the instance to issue a judicial notice. Otherwise, the proceedings must be referred back by the court of appeal.
This case has not yet occurred. According to the intention of the legislator, point penalties should only be imposed in the case of secondary penalties and sanctions under customs and tax criminal law. It therefore seems questionable whether this is possible.
The Federal Constitutional Court has ruled that Section 354 (1a) of the Code of Criminal Procedure must be interpreted in accordance with the constitution. It requires that a “complete, truthfully determined and up-to-date sentencing facts" are available. The defendant must also be informed that the sentence may be upheld despite the incorrect assessment. However, the higher courts repeatedly disregard the case law of the Federal Constitutional Court.
No. In principle, the appellate court may only make its own decisions within the narrow statutory framework. However, the Federal Court of Justice repeatedly uses the concept of „evaluations or assessments reserved to the trial judge“ and only examines whether it is prevented from making its own decision, i.e. it generally assumes that it has general authority.
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