The most important facts at a glance
- The appeal is a special legal remedy that only challenges legal errors, not the assessment of evidence.
- The review period is only one week and must be strictly adhered to.
- A successful appeal generally does not lead directly to acquittal, but rather to a remand to a different chamber.
If the judge's verdict is not to be the final word
The Appeal on points of law In criminal law, an appeal represents a complex but often crucial step in the legal process. As the last regular legal remedy, it can decide between freedom and imprisonment, professional existences, and personal fates. However, precisely because appeals are so special in German criminal proceedings, numerous misunderstandings and errors surround this legal remedy.
As a specialist lawyer for criminal law with many years of experience in appeal proceedings, I encounter clients daily who have misconceptions about the possibilities and limitations of an appeal. These misjudgments can have fatal consequences – from missed deadlines to unrealistic expectations about the outcome of the proceedings.
In this article, I would first like to clarify the ten most common misconceptions about appeals in criminal law and give you a well-founded overview of what this legal remedy can and cannot achieve. Knowing this can be crucial in an emergency to set the right course for your defense.
The Legal Framework: Revision in the Code of Criminal Procedure
The revision is regulated in Sections 333-357 of the Code of Criminal Procedure (StPO). In contrast to an appeal, which represents a complete second instance of fact-finding, revision is a purely legal review procedure. This means that the revision court – depending on the case, the Federal Court of Justice (BGH) or a Higher Regional Court (OLG) – only reviews the correct application of the law, but not the assessment of evidence or factual findings of the court.
The legal fundamental structure of revision is based on the principle that while the determination of facts is incumbent upon the lower courts, the uniform application of law, however, is to be ensured by the revision courts. Section 337 of the Code of Criminal Procedure (StPO) provides the crucial indication: A revision can only be based on „the judgment being founded on a violation of the law.“
Violations of law can occur in two forms:
- Procedural objections (§ 344 para. 2 sentence 1, 2 StPO): This section alleges that procedural rules were not followed, such as a violation of the right to be heard or erroneous evidence gathering.
- Material complaints (§ 344 Para. 2 Sentence 1 of the Code of Criminal Procedure): This section refers to the incorrect application of substantive law, for example, a misinterpretation of criminal offenses or an erroneous assessment of punishment.
Misconceptions Debunked: The 10 Most Common Errors
The appeal is like a second instance of judgment – everything is re-examined anew„
This is perhaps the most fundamental misconception. Unlike an appeal, a revision is not a second factual proceeding. The revision court exclusively reviews whether the judgment is based on errors of law. No new evidence is taken, and the defendant is generally not heard again. It is solely about legal errors, not about whether the court correctly assessed the evidence.
Real-world example: A client was outraged when I explained that he could no longer present his new witness in the appeal. He had believed it was a „second chance“ with a complete rehearing of the case.
I have enough time to decide whether to file for revision.„
A dangerous mistake! The deadline for filing an appeal is, according to § 341 StPO (Code of Criminal Procedure), only one week after the judgment is pronounced (or after service, if the defendant was not present). This deadline is absolute and cannot be extended. Many clients underestimate this short timeframe and consequently lose the opportunity to challenge the judgment.
The statement of grounds for appeal must be filed within one month; however, the appeal itself must be filed within the weekly period stipulated by § 341 of the Code of Criminal Procedure (StPO). If this deadline is missed, the judgment becomes legally binding – regardless of how obviously wrong it may be.
I can file and justify my own appeal.„
Theoretically, this is possible, but practically it is highly risky. An appeal must be filed in the correct form and, above all, justified in the correct form. Especially in the case of procedural objections, § 344 para. 2 sentence 2 StPO requires an exact designation of the facts that constitute the defect. The requirements of case law are extraordinarily strict here. Although the registrar, who receives the statement of grounds for appeal if it is not submitted by an attorney, is obligated to provide legal advice, it is unlikely that a procedural objection meeting the requirements can be raised in this way.
A successful appeal automatically leads to acquittal.„
A widespread misconception. In most cases, a successful appeal merely leads to the case being remanded to a different chamber of the regional court (§ 354 para. 2 StPO), which then re-hears the case, taking into account the appellate court's legal opinion. Only in exceptional cases can the appellate court decide the matter itself and, for example, issue an acquittal (§ 354 StPO). If the proceedings are remanded, it is also important whether the appellate court has annulled the findings of the judgment as well. If this is not the case, the facts from the previous first instance remain established, and in effect, no new factual instance takes place. This is primarily the case when only an appeal on the merits was successful. As a rule, only successful procedural objections lead to the annulment of the findings.
5. „Review courts review the court's evaluation of evidence“
A fundamental misunderstanding. An appeal is fundamentally not a „super-appeal.“ The appellate court does not review whether the court correctly assessed the evidence. The assessment of evidence is fundamentally left to the trial judge. The appellate court only checks whether the assessment of evidence is legally flawed, for example, because it is incomplete, contradictory, or violates the laws of logic. While this not infrequently leads to the annulment of a judgment due to flawed evidence assessment in situations of "one witness against another," it practically never results in this otherwise.
6. „In the case of an obviously wrong conviction, the appeal must be successful.“
This mistake is particularly bitter for those affected. Even if a defendant is subjectively convinced of their innocence, and even if the verdict is objectively based on flawed assessment of evidence, this does not automatically lead to a successful appeal. As long as the court has legally justified its conviction without error, the verdict remains unassailable on appeal.
The success rate for appeals in criminal cases before the Federal Court of Justice (BGH) is only about 10–15%. This low figure illustrates the high hurdles posed by the law governing appeals.
7. „Any procedural error will lead to the annulment of the judgment.“
By no means. According to § 337 para. 1 StPO, the judgment must be based on the violation of the law. This means that the error must have been causal for the judgment. Many procedural errors are classified by the appellate court as „inconsequential“ because they did not affect the judgment.
8. „A review only takes a few weeks“
The duration of review proceedings is often underestimated. How long can an audit take? While the filing and justification must occur within short deadlines, the handling by the appellate court can take several months, and in complex cases, over a year.
For appeals to the Federal Court of Justice (BGH), the average duration of proceedings is currently around 6-9 months, and for Higher Regional Courts, it's about 3-6 months. This timeframe can be a significant burden for those affected, especially if they are in pre-trial detention.
9. „Appeals are a cost-effective remedy“
An expensive mistake. Revision in Criminal Law - Costs at a Glance You should carefully review this before filing an appeal. Appellate proceedings, despite their written nature, are often expensive. The workload for a thorough appeal brief is considerable, as the entire case file must be meticulously searched for legal errors in preparation for procedural objections. Although the statutory fees for filing and justifying an appeal are low, lawyers experienced in appellate law typically charge on an hourly basis.
In addition, if the defendant appeals to the Supreme Court, they will most likely bear both their own costs and the court costs of the Supreme Court appeal, depending on individual cost regulations. A careful cost-benefit analysis is therefore essential before filing an appeal.
10. „If necessary, I can still file a constitutional complaint.“
The constitutional complaint is often misunderstood as a „cure-all.“ In reality, it is an extraordinary legal remedy with very high hurdles. The Federal Constitutional Court only examines violations of fundamental rights or rights equivalent to fundamental rights, not the simple application of the law.
The statistics speak for themselves: The statistical success rate for constitutional complaints is less than 5%, although exact figures may be subject to statistical fluctuations. A constitutional complaint is therefore not a „Plan B“ for an unsuccessful appeal, but rather an independent, highly specialized procedure with its own standard of review.
Actionable Recommendations: How to Maximize Your Revision Opportunities
- Act immediately: In the event of an unfavorable judgment, you should contact an attorney experienced in appeals immediately – ideally on the same day the judgment is announced. The one-week deadline for filing an appeal is extremely short.
- Seek specialized defense: Not every defense attorney is an expert in appeals. Specifically look for lawyers with proven experience in appellate proceedings, ideally with a specialist title and experience before the Federal Court of Justice.
- Secure complete files: Full access to the case file is essential for the grounds of appeal. Ensure your defense attorney has access to all procedural documents, including the main trial record.
- Develop realistic expectations: Ask your lawyer for open advice about the chances of success of an appeal. A probability of success of 10-15% is realistic - an appeal is not a „magic bullet“ against unpleasant judgments.
- Take precautions during the main hearing: Potential grounds for appeal should already be documented during the proceedings at first instance. Insist on the recording of important procedural events and motions for evidence.
Revision at a glance: Checklist for those affected
Before the appeal is lodged:
- Has the one-week deadline for filing an appeal not yet expired?
- Is a written judgment already available or do I still have to wait for the reasons?
- Are there realistic prospects of success for an appeal?
- Were possible procedural errors documented during the main hearing?
- Are the costs of an audit justifiable in relation to the potential benefits?
In the grounds of appeal:
- Are all relevant case files available and evaluated?
- Have all relevant procedural objections been raised in due form?
- Was the assessment of evidence reviewed for errors of law?
- Has the application of the law been checked for material errors?
- Has the grounds for appeal been completed within the one-month period?
After filing the appeal:
- Has the other party (public prosecutor's office) been informed?
- Is there a need for a detention review during the ongoing appeal proceedings?
- Have all relevant pleadings been received by the competent court?
- Has the possibility of a counterstatement to any statements by the public prosecutor's office been used?
Revision as an important but limited legal remedy
An appeal in criminal law is a demanding, highly formalized legal remedy with a limited scope of review. It is not a second attempt at a comprehensive retrial of the case, but a targeted instrument for correcting legal errors. The numerous errors that exist in connection with the appeal can have fatal consequences for those affected - from missed deadlines to futile appeal proceedings with high costs.
A realistic assessment of the possibilities and limits of an appeal is therefore essential. Not every judgment that is perceived as unjust can be successfully appealed. This makes it all the more important to consult a specialist lawyer who is familiar with appeals at an early stage, who can make a well-founded assessment of the chances of success and, if necessary, draw up a strategically clever justification for the appeal.
Despite its limitations, an appeal on points of law remains an indispensable instrument for preserving legal consistency and protecting against serious legal errors. Anyone who understands how it works and approaches it with realistic expectations can make targeted and effective use of this legal remedy.
Do you have questions about a possible revision or do you need specific legal support in revision proceedings? At SITTIG LAW, we have extensive experience in complex appeal proceedings and can provide you with expert advice. Contact us for a non-binding initial consultation.
Frequently asked questions
An appeal is possible against judgments of the local courts, regional courts and higher regional courts as the court of first instance as well as against appeal judgments of the regional courts.
An appeal is a complete second trial with a new taking of evidence, in which the entire case is retried. An appeal on points of law, on the other hand, only examines whether the judgment is based on errors of law, without taking new evidence or reassessing the facts.
The appeal must be lodged within one week of the pronouncement of the judgment (or service in absentia). The statement of grounds must be submitted within one month of the expiry of the time limit for filing an appeal or after service of the judgment. These deadlines cannot be extended.
The Federal Court of Justice is responsible for appeals against first-instance judgments of the regional courts. The Higher Regional Courts are responsible for appeals against appeal judgments of the Regional Courts.
The costs are made up of court costs and lawyers' fees. Lawyers usually charge on an hourly basis in the appeal instance. In the event of failure, the defendant bears all costs.
The statistical success rate at the BGH is around 10-15%. The decisive factor for the individual case is the existence of specific legal errors. A careful examination by a specialist lawyer can realistically assess the individual chances.
As a rule, there is no oral hearing. Most appeal proceedings are decided in writing. Only in rare cases is a main appeal hearing scheduled, at which the defendant should be present.
This is possible, but not automatically the case. According to Section 121 of the Code of Criminal Procedure, there is the possibility of a detention review if the pre-trial detention exceeds six months. The prospects of success depend on the individual case.
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