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Revision against appellate judgment in criminal law

If the appellate judgment in criminal law is flawed, the revision to the Higher Regional Court is the legal remedy. However, it is not a new factual instance, but exclusively corrects legal errors. The deadline for filing is only one week. An alternative is the direct revision, which skips the Regional Court. A precise analysis of the initial judgment is crucial for the strategic decision between appeal and direct revision.
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The most important facts at a glance

  • Revision at the Higher Regional Court Against a Berufungsurteil (appellate judgment) of the Landgericht (regional court), the Revision (appeal) to the Oberlandesgericht (higher regional court) is the classic legal remedy – however, it is limited to errors of law and is not a new factual instance.
  • Spring revision as an alternative: In certain constellations, it is worthwhile to file an appeal directly after the initial district court ruling (leapfrog appeal) – skipping the appellate court.
  • Deadlines and formalities decide: Anyone who fails to observe the deadlines and formal requirements for lodging and substantiating an appeal forfeits the remedy, regardless of how serious the legal error was.

When the appellate ruling is not the final word

After a lengthy criminal proceeding before the regional court, the impression may arise that the court incorrectly assessed crucial legal questions. Perhaps evidence was appraised erroneously or the right to be heard was violated. At this moment, the question arises: What can still be done?

The answer is: the appeal against the appellate judgment in criminal law.

The appeal is not a second attempt to rehash all the facts. It is a precise instrument that exclusively corrects legal errors. Those who want to use this tool correctly must be thoroughly familiar with the procedural requirements – and often set the strategic course much earlier, namely during the appeal hearing itself.

Legal Basis: The Review System in Criminal Law

Instance Train at a Glance

German criminal procedure law recognizes two ways to appeal a first-instance judgment: the Calling and the Appeal on points of law. Both legal remedies pursue fundamentally different goals.

The appeal pursuant to §§ 312 et seq. of the Code of Criminal Procedure (StPO) opens a completely new factual hearing before the Regional Court. The Regional Court can review the initial judgment of the District Court in its entirety, gather its own evidence, and arrive at a different conclusion. However, it does not have to re-examine all witnesses; it can refer to the transcripts of the initial proceedings to the extent permitted by procedural law (cf. § 273 StPO). Objections to the use of transcripts or evidence can and should be raised upon filing the appeal or, at the latest, during the appellate hearing.

The appellate review, on the other hand, is not a third court of fact. The appellate court – in most cases the Higher Regional Court (OLG), in specific proceedings, the Federal Court of Justice (BGH) exclusively examines whether the contested judgment is based on a violation of the law (§ 337 StPO). Factual findings are generally not re-evaluated.

Legal Basis of Auditing

The central provisions on revision in criminal law are found in §§ 333 to 358 of the Code of Criminal Procedure (StPO):

  • § 333 StPO: General Admissibility of Appeals to the Federal Court of Justice Against Judgments of Regional Courts (as Appellate Courts) and Higher Regional Courts
  • § 337 StPO: The ground for appeal – violation of law by the contested judgment
  • § 338 StPO: Absolute grounds for appeal that always lead to annulment (e.g., error in composition, violation of the principle of publicity, lack of reasoning)
  • § 344 German Code of Criminal Procedure Formal requirements for the audit justification
  • § 345 StPO: Deadlines for the statement of grounds for appeal
  • § 354 CCP: Decision Options of the Appellate Court

Setting aside after § 153a StPO – also in the appellate review stage?

An often underestimated option is the discontinuation of proceedings according to § 153a StPO (German Code of Criminal Procedure) even during appeal proceedings. According to this provision, the public prosecutor's office can – with the consent of the court and the accused – provisionally discontinue proceedings in exchange for conditions (e.g., payment of a sum of money, community service). This is generally possible at any stage of the proceedings, even if an appellate judgment has already been rendered and the appeal proceedings are ongoing. This option should be discussed with the defense counsel, especially in cases involving first-time offenders or borderline cases of criminal culpability.

What the revision can achieve - and what it can't

Reasons for appeal: factual and procedural grounds

The core of any audit justification is the distinction between Material complaint and Procedural complaint.

With the Material complaint It is asserted that substantive law – i.e., for example, the criminal provisions of the German Criminal Code (StGB) – was incorrectly applied. Classic examples: incorrect subsumption under a criminal offense, erroneous sentencing, or legally incorrect evaluation of an element of the offense. The appeal on substantive grounds does not require special justification; it is permissibly lodged by a blanket reference to a violation of law.

The Procedural complaint It reprimands specific violations of procedural rules. It must be lodged completely and precisely: Every alleged procedural violation must be detailed with all the facts necessary for its assessment.

Absolute grounds for appeal (§ 338 StPO)

§ 338 of the German Code of Criminal Procedure contains an exhaustive list of procedural errors that lead to the annulment of a judgment. These include:

  • Unlawful occupation of the court
  • Participation of a judge who has been recused or successfully challenged
  • Violation of public order principles
  • Violation of the rules concerning the main hearing in the absence of the defendant
  • Missing or insufficient reasoning for judgment

These grounds for revision are particularly valuable because they do not require proof that the judgment would have been different without the error.

Procedural objection and § 273 StPO

An important practical aspect of the appeal hearing is the question of which evidence the appellate court must gather during the hearing and which it may use from the case files. According to Section 273 of the Code of Criminal Procedure (StPO), a record is kept of the appeal hearing. The appellate court is not obligated to re-examine all witnesses heard in the first instance – it may, under certain conditions, rely on the records from the first instance.

This presents an important starting point for subsequent appeals: If the appellate court relies on evidence without properly introducing it into the appellate proceedings, or if it uses witness testimony without hearing the witnesses, when this would have been legally required, this can form grounds for a procedural error. Objections to the use of certain evidence must be raised in a timely manner during the appeal hearing. – otherwise the corresponding procedural objection may be precluded in the appeal.

Strategic fundamental question: Appeal or revision?

The revision by appeal pursuant to § 335 of the Code of Criminal Procedure

One of the most important strategic decisions in criminal proceedings is often overlooked: should an appeal be filed against a first-instance court ruling – or directly a revision (so-called. Spring revision according to § 335 of the Code of Criminal Procedure)?

The revision by jumping allows one to bypass the regional court as the appellate court and directly appeal to the Higher Regional Court as the revision court. At first glance, this sounds risky – after all, one is forgoing a full instance for factual review. However, there are good reasons to seriously consider this option:

Arguments for a leapfrog revision:

  • The District Court committed exclusively legal errors, not factual determination errors. A new factual hearing would be of no use.
  • The legal question is of fundamental nature and is to be clarified by the highest court.
  • Another factual instance would only cost time and not improve the outcome.
  • If the facts are favorable, there is a risk that the regional court, in an appeal hearing with full cognizance of the facts, may reach a less favorable outcome.

Arguments against an appeal

  • The facts are indeed disputed and the Local Court has misjudged the evidence – then a new factual instance is needed.
  • The chance that new witness testimonies in the appeal will turn the situation around for the better is high.

The decision between an appeal and a leapfrog appeal is a challenging strategic question in criminal defense law. It requires a precise analysis of the initial judgment and a realistic assessment of the chances of success for both routes.

Practical tips for those affected

1. Strictly adhere to deadlines: The revision period is one week from the pronouncement of the judgment. The period for stating the grounds for revision is one month from the delivery of the written judgment.

2. Seek immediate legal advice: Revision is not a legal remedy that can be successfully filed without in-depth knowledge of the procedural law governing appeals. Every week after the judgment is announced during which no lawyer has yet been engaged reduces the preparation time for the grounds of appeal.

3. Raise objections in the appeal hearing in a timely manner: The grounds for appeal can only be based on procedural violations that actually occurred and for which an objection was raised or a motion was filed in a timely manner during the main hearing. Those who remain silent during the appeal hearing lose the opportunity to object to procedural errors later.

4. Carefully review the appeals hearing minutes: The record of the appeal hearing (Section 273 Code of Criminal Procedure) is an important basis for subsequent grounds of appeal in revision proceedings. It documents which motions were made, which objections were raised, and how the court responded to them. A thorough review of the record for completeness and accuracy should be carried out immediately after the appeal hearing.

5. Don't prematurely rule out a discretionary appeal: The decision whether an appeal or a leapfrog appeal is the correct legal remedy should not be made intuitively, but rather after a structured analysis of the initial judgment. Sometimes, the faster route to the Higher Regional Court is the better one.

Checklist: Revision against Appellate Court Decision – What to Do Now

✅ Immediately after the verdict is announced

  • Filing of the appeal within one week with the competent court
  • Legal advice on the prospects of success for an appeal

✅ After delivery of the written judgment

  • First entry: Deadline for grounds of appeal (one month)
  • Careful review of the written judgment for legal and procedural errors
  • Review of the meeting minutes for completeness

✅ In the justification for the revision

  • Decision on factual and/or procedural grounds
  • In procedural objections: complete presentation of all relevant facts
  • Review of Absolute Grounds for Appeal (Section 338 StPO)

✅ Strategic preliminary decision (on first judgment)

  • Careful Consideration: Appeal or Leapfrog Revision?
  • Consistently record objections and motions throughout the entire appeal hearing.

Recommendation for action

The appeal against a judgment in criminal proceedings requires that the defense counsel thinks strategically not only after the appellate judgment, but throughout the entire appellate hearing – raising objections, filing motions, and keeping an eye on the record.

At the same time, the decision of whether to appeal at all or to proceed directly with a leapfrog appeal is one of the most consequential strategic turning points in the entire proceeding. Whoever decides incorrectly here may forfeit the best line of attack.

We are available nationwide. Our law firm provides confidential and targeted advice.

Frequently asked questions
The appeal is a completely new factual instance: the regional court can re-evaluate the entire factual situation. The revision exclusively reviews the challenged judgment for legal errors – factual findings are generally not made.
As a rule, the Higher Regional Court (OLG) decides on appeals against appellate judgments of the Regional Courts. The Federal Court of Justice (BGH) is responsible for certain proceedings.
The deadline for filing an appeal is one week from the pronouncement of the judgment. For the statement of grounds, a one-month deadline applies after service of the written judgment.
The interlocutory appeal according to § 335 StPO allows an appeal to the Higher Regional Court (OLG) to be filed directly after an initial judgment by the District Court (Amtsgericht), without the intermediate step of an appeal to the Regional Court (Landgericht).
If the initial verdict contains only legal errors and a new factual hearing would offer no added value. The decision must be made after careful analysis of the initial verdict.
Yes, the setting aside of proceedings under Section 153a of the Code of Criminal Procedure is generally possible at any stage of the proceedings – even if an appellate judgment has already been issued and appellate review is pending. This requires the consent of the public prosecutor's office, the court, and the accused.
§ 338 of the German Code of Criminal Procedure lists procedural errors that always lead to the annulment of a judgment, without requiring proof of a causal connection with the outcome of the judgment. These include, among others, incorrect court composition and violation of the principle of public hearings.
Yes, in many cases, the timely raising of objections and applications during the appeal hearing is a prerequisite for a later procedural challenge in a revision. Those who remain silent during the main hearing cannot raise certain errors later.
Yes, filing and justifying an appeal with the Higher Regional Court (Oberlandesgericht) is subject to mandatory legal representation. Given the high formal requirements – especially for procedural objections – experienced criminal defense representation is strongly recommended.

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