Revision in criminal cases is one of the most challenging areas of criminal law, as it is a highly demanding procedure that examines purely legal questions. Moreover, extremely high requirements are imposed by the revision courts on the formal presentation and legal reasoning of the revision, so that even the smallest mistakes can lead to inadmissibility, making the contested judgment final.
Reasons why a judgment must be overturned or a defendant acquitted can be due to formal or substantive legal errors in the ruling.
Both types of errors differ fundamentally and are extremely complex:
Procedural Errors
Formal errors occur when procedural law is violated. It must be examined whether the court conducted the trial (including pre- and post-trial processes) correctly.
Due to strict objection requirements imposed by law and higher courts, as well as the misconception among many lawyers that “mere” formal errors are not decisive, procedural objections are often neglected. However, the success of such objections should not be underestimated.
Although identifying these errors requires years of experience and knowledge of all possible sources, procedural formalities often present many errors, offering the convicted person a significantly higher success rate and better chances of having a conviction overturned.
For example, some fundamental formalities include:
- A judgment notification is only valid if it is based on a valid delivery order from the presiding judge. If it states “to be delivered to defense counsel” but the defendant has multiple lawyers, such notification is invalid.
- A valid notification is also missing if the delivered judgment is incomplete, such as missing pages. For a non-German-speaking foreigner, a translated judgment with legal instructions must be provided.
- It is also invalid to deliver the judgment before the main hearing transcript is finalized, meaning signed by the presiding judge and the court clerk.
- A common error (often leading to successful revision) is a judgment or opening order that is not properly signed.
- Errors also frequently occur regarding filing deadlines, i.e., when the judgment must be submitted to the court registry (date stamp).
The most common procedural errors usually occur during the main hearing and can be verified through the trial transcript. However, mistakes can also occur during the preliminary investigation and intermediate proceedings, such as failure to consider procedural obstacles (e.g., statute of limitations), the absence of a valid opening order, or violations of summons deadlines.
Besides well-known procedural errors like the lack of a defendant’s rights notification (during the investigation) or violations of the principle of immediacy (e.g., reading a witness statement instead of summoning the witness), lesser-known errors are often overlooked, such as:
- The lack of a valid indictment because the prosecution failed to meet its delineation function (common in cases involving multiple offenses or missing specific dates).
- Violation of the principle of expediency (e.g., excessive trial duration), particularly in custody cases and trials with extensive case files.
- Jurisdictional errors, especially whether the main hearing took place before the legally competent court (as defendants have an absolute right to be tried by the legally assigned judge).
- Errors in jury selection (e.g., invalid disqualification of a juror without proper justification).
- Biased participation of rejected judges, jurors, or experts if a recusal request was unjustly denied.
- Errors regarding public access to the trial, improper exclusion of the public, or unjustified reopening of the public trial.
Substantive Legal Errors
Legal errors in the application of criminal laws arise from the judgment itself and occur when mistakes are made in the legal assessment of the applied criminal law, the evaluation of evidence, or the sentencing.
All three areas are prone to frequent errors, yet identifying and properly challenging them is complex. A lawyer must not only recognize legal errors but also address unresolved legal issues and justify them precisely within formal legal arguments. This requires in-depth academic knowledge of criminal law.
Some common substantive errors include:
- Misapplication of multiple overlapping criminal offenses (so-called concurrence errors) or failure to apply the correct legal provisions.
- Incorrect assessment of whether an act justifies the application of a specific penal provision (e.g., failure to consider withdrawal from an attempted crime or overlooking elements required for sexual offenses).
- Errors in evidence evaluation, especially in cases of “one witness against another.” In such cases, the witness’s credibility must undergo a special credibility assessment.
- Logical contradictions in the judgment, e.g., when the reasoning contradicts itself or fails to address alternative possibilities.
- Errors in sentencing, such as violations of the “double jeopardy principle,” where an element of the crime is also used as an aggravating factor.
Summary
The revision in criminal proceedings is considered very challenging and involves high formal hurdles. Even the smallest mistakes made by the revision lawyer can lead to inadmissibility, which is why the failure rate is generally extremely high. However, this is not because judges rarely make mistakes—quite the opposite. Unfortunately, many lawyers are not sufficiently familiar with revision law, which differs significantly in its structural elements from general criminal procedural law. In addition to years of experience, profound academic expertise is essential.
Our law firm, consisting of specialized attorneys and university lecturers in criminal law, as well as a former prosecutor, is exclusively focused on criminal law. Each of our lawyers has further specialized in specific areas of criminal law, particularly in revision proceedings. This allows us to offer our clients—similar to a specialized medical doctor—the highest level of expertise in a highly focused field. As a result, we have not only successfully represented numerous revisions in criminal law but also serve our clients nationwide.
Our law firm is dedicated to utilizing dedicated, professional, and knowledgeable expertise to explore all legal possibilities in criminal proceedings and develop effective defense strategies that specifically target the weaknesses of the judicial system.
No other area of law has as many discretionary options, considering the broad range of legal consequences provided for in criminal proceedings: from case dismissal (with or without a financial penalty), to the written penalty order process, to the non-opening of proceedings, acquittal, warning, waiver of punishment, or prison sentences ranging from a few months to many years—with or without probation.
The outcome in criminal law significantly depends on the choice of the right lawyer.
However, similar to choosing a doctor, trust in being in the best possible hands is the most important factor when engaging a lawyer. You can contact us at any time in advance to get a personal impression of our experience and competence.
