Judicial Review & Appeal
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich

General information on revisions
REVISION

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The revision is the only and last legal remedy that can be used to challenge a conviction by the regional court.

In order to increase the chances of success of an revision, it is strongly recommended that you contact a revision specialist as early as possible! This is the only way to ensure ideal preparation in advance. It is possible to bring in an additional, specialized lawyer for the revision process at any time and is absolutely normal.

We represent you nationwide. You can choose an appeal lawyer regardless of the location of the previous regional court that made the conviction.

In first instance proceedings before the regional court, the Federal Court of Justice is always responsible for the appeal proceedings. In addition, a main hearing before the appeal court only takes place very rarely in appeal proceedings. In most cases, it is a purely written procedure.

Initial contact and advice are also possible by telephone or video conference if desired.

What many people unfortunately do not know: The appeal is a purely formal procedure in which it is only checked whether the judgment of the lower court is legally correct. It is therefore purely a question of law. New witness statements or other evidence no longer play a role here!

The appeal lawyer must therefore be able to recognise pure legal errors made by a court, which in turn requires very profound legal knowledge, and often even scientific expertise. The appeal lawyer must not rely on information from the lawyer in the lower court, but must concentrate particularly on the minutes and the written judgment – experienced trial lawyers therefore often seek the advice of an appeal specialist during the trial! In addition, the appeal courts place extremely high demands on the legal justification of an appeal, so that even the smallest errors by the lawyer lead to the inadmissibility of the appeal and thus to the finality of the contested judgment. This is why appeals are considered the most difficult area of ​​law in criminal law.

Choosing an appeal lawyer: high risk – great opportunity!
For the client, the appeal represents a very high risk  with regard to choosing the right appeal lawyer, because not only must his lawyer be able to recognize even the smallest errors in a judgment; he must also be able to correctly complain about them, which requires exceptional experience in view of the excessive demands of the appeal courts. In addition, in many cases the appeal lawyer must also be able to provide plausible reasons why the contested judgment is based on the legal error complained of.

Without experience in appeal law and above all scientific know-how, a successful appeal is hardly possible these days, which is unfortunately also demonstrated by the low success rate of 3 – 10%. In this respect, you should definitely turn to a specialist in appeal law  in order not to fail at the purely formal hurdles in the worst case scenario.

We offer not only the necessary practical expertise, but above all the necessary scientific expertise to help our clients to succeed in appeal proceedings more often than average. Our law firm has therefore specialized in the legal remedy of appeal from the very beginning.

What many people do not know: You can change lawyers at any time! Whether you have only been represented by a lawyer for a few hours or for many months. In criminal law in particular, trust in your lawyer is the most important factor in a successful criminal defense.

Incidentally, it is also possible to appoint a second lawyer for criminal proceedings at any time, which is common practice, especially in appeals. Criminal procedural law even allows up to 3 freely selectable lawyers per accused / defendant (in addition to a public defender already appointed).

Which court decides?
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In cases that were first brought before the District Court, the appeal takes place at the locally competent Higher Regional Court. The Federal Court of Justice decides on appeals against the first instance judgments of the Regional Court.

Further course of the appeal proceedings
If the appeal is admissible, the appeal is served on the public prosecutor’s office. This has the opportunity to make a counter-statement within one week.
After the public prosecutor’s office has submitted the counter-statement (and, if applicable, the appellant’s statement on this), the files are sent to the appeal public prosecutor’s office (General Public Prosecutor’s Office or Federal Prosecutor General). This in turn forwards the files with its statement to the appeal court, usually together with the application to dismiss the appeal.
From the time the appeal public prosecutor’s application for dismissal is served, the appeal lawyer has the opportunity to make a counter-statement within two weeks. In this case, the lawyer must check whether the appeal public prosecutor’s statement of reasons for the application has dealt with all procedural and substantive legal objections to his statement of reasons for the appeal.

Decision options of the appeal court
The appeal can
– be rejected as inadmissible or obviously unfounded
– be completely successful by having the verdict overturned
– be partially successful by having the verdict partially overturned
– lead to a correction of the guilty verdict (different criminal law)
– lead to the annulment of the legal consequences (lighter sentence)
– lead to an acquittal for legal reasons

If the verdict is overturned, the case is usually referred back to another chamber of the same regional court. In rare cases, a hearing may take place before the appeal court.

Revision justification – the supreme discipline in criminal law
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The written revision justification is one of the most demanding and complex areas of criminal law. Because of the extremely high demands  of the appeal courts on the formal presentation and the legal justification, even the smallest errors can lead to the inadmissibility of the appeal  and thus to the finality of the contested judgment. Without contemporary expertise and specialist knowledge, a promising appeal will therefore usually not succeed.

Reasons why a judgment must be overturned or a defendant even acquitted can be due to formal or factual-legal errors in the judgment. Both types of error are fundamentally different and extremely complex:

Formal errors (procedural errors)
These occur when procedural law has been violated. It must therefore be checked whether the court did its job correctly in the main hearing (but also before and after).

Not least because of the very strict obligation to lodge complaints that the law and the higher courts place on appeal lawyers, but also because many lawyers consider “mere” formal errors to be not decisive, lawyers are increasingly refraining from raising procedural complaints. Nevertheless, the success of such complaints must under no circumstances be underestimated. For example, one of the basic formalities is:

• Delivery of a judgment is only effective if it is based on an effective delivery order  by the presiding judge. If, for example, it says to be delivered “to the defense attorney” but the defendant is represented by several lawyers, delivery made in this way is invalid.

• Delivery is also not effective if the delivered judgment  is incomplete, for example because some pages are missing. If the foreigner does not speak the language, a translated judgment must be served, including information on legal remedies.

• It is also not permitted to serve the judgment before the main hearing minutes have been completed, i.e. signed by the chairman and the secretary.

• A common mistake (which renders service ineffective and thus often leads to a successful appeal) is an not properly signed opening decision or original version of the judgment.

• Even when compliance with the deadlines for filing, i.e. when the judgment must have been received by the registry (date of receipt), mistakes sometimes occur.

The most common procedural errors occur during the main hearing and can be proven using the hearing minutes. But even in the run-up to the investigation and interim proceedings, errors can occur again and again, such as failure to observe procedural obstacles  (e.g. statute of limitations), the absence of an effective opening decision or the breach of summons deadlines.

In addition to known procedural errors, such as the lack of instructions to the accused (during the investigation) or the violation of the principle of immediacy (e.g. reading out a statement instead of immediately summoning the witness), the less well-known errors are often overlooked, such as:

• the lack of an effective indictment because the public prosecutor’s office has not fulfilled its function of defining the case (which very often occurs with indictments involving a large number of offenses or the absence of a specific time of the offense);

• the violation of the requirement for acceleration (keyword: excessively long duration of proceedings), especially in detention cases and proceedings with extensive file content;

• errors in the jurisdiction of the court, especially with regard to whether the main hearing before the court competent according to the business allocation plan  (because the defendant is entitled to the so-called statutory judge) – but this is only satisfied if a proper business allocation plan is in place;

• Errors in the regular appointment of lay judges  (e.g. professional reasons for a lay judge are generally not sufficient to prevent the lay judge actually intended from attending. Nevertheless, this is overlooked by many judges, so that the accused is unlawfully deprived of his or her legal judge);

• Cooperation of judges/lay judges/experts who have been rejected due to bias, if a corresponding request for recusal was wrongly rejected (this is already the case if a reason is put forward which is likely to justify mistrust of the impartiality of a judge – from the defendant’s point of view! If, for example, the judge does not take into account the wish to be defended by a lawyer of his or her choice, but instead appoints a public defender not desired by the accused, the defendant may have reason to believe that the judge is biased – the same applies to tendentious behavior, irrelevant statements  or derogatory, insulting or derisive statements  by the judge towards the accused or witnesses. Likewise, openly communicated bias, e.g. when the judge has decided on a certain result before the evidence has been taken);

• Errors in excluding the public, denying access, not excluding the public and improperly restoring the public;

• Denial of the right to be heard:  Not asking the accused after the questioning and after each individual piece of evidence whether he has anything to explain  and not giving him the opportunity to explain himself at the request of his defence counsel (the latter also after the questioning of the accused he is defending);

• The incorrect rejection of questions objected to  or interrupted by the chairman;

• incorrect instruction  on the right to refuse to give evidence / the right to refuse to give information (which leads to the statement being refused or the right to refuse to give evidence being invoked without justification. In this context, mistakes often occur with witnesses who are allowed to “refuse” to give evidence for professional reasons and are therefore prematurely dismissed or dismissed by the court, even though the witness can decide for himself whether he still wants to give evidence;

• incorrect review of the right to refuse to give information  (due to the risk of incriminating himself) and whether this actually applies to all of the questions;

• incorrect rejection of questions  to a witness about his personal life or previous convictions, even though these serve to clarify the facts or because they concern credibility in the case at hand;

• Erroneous assumption of the court’s “own expertise“. A judge may indeed refrain from obtaining an expert opinion when assessing a question that requires specialist knowledge if he has his own special expertise. However, in order to avoid the time-consuming and procedurally protracted expert opinion, courts tend to greatly overestimate their own expertise (which also results in a serious error in the assessment of evidence). If the chamber wrongly assumed its own expertise or did not adequately justify why and how it has expertise to assess the question of evidence, this is a point on which an appeal can successfully begin. (This is often the case with credibility assessments. In court rulings, one often reads that this or that conclusion should be drawn “from a psychological perspective”. Due to a lack of appropriate training in psychological methodology, such statements – despite all the expertise that a court may attest to itself – are vulnerable, since a judge is not a psychological psychologist. The same applies, of course, to the question of criminal responsibility and especially to forensic, biomechanical and purely technical questions – which are also factual and legal errors);

• incorrect justification of one’s own expertise, especially with regard to all members of the court: The question of whether a court is capable of possessing expertise that meets scientific requirements must be answered by all members of the court, also and especially for the lay judges. A prerequisite for any deliberation and decision by a court is that all members appointed to make a decision have sufficient knowledge of the subject matter of the dispute. This is because the responsibility for finding the law lies with all members of the adjudicating court. It must therefore be stated precisely to what extent all members of the court have the necessary expertise. Since lay judges do not have complete knowledge of the files and only rarely have sufficient specialist knowledge, it is rarely possible for all court members to attest to their own expertise;

• Insufficiently exhaustive questioning of experts: Given the many sources of error in the area of ​​expert reports, it may be necessary for the court to obtain knowledge of the content of the expert’s working documents in order to be able to critically evaluate the report. If the court does not consider this necessary or if the expert refuses, a breach of the duty to provide information may be considered (at the same time a factual or legal error). It must also be checked whether the expert has submitted all the working documents used to prepare his report in the main hearing upon request.

• failure to provide evidence / rejected it, requests for evidence, requests for requests for evidence, requests for requests for files, requests for evidence (also a factual and legal error);

• violation of the duty to provide information, if the judge (even without a corresponding suggestion / request from the defense) has failed to carry out investigations, although the facts known to him should have compelled him to do so (also a factual and legal error);

• failure to provide information from the court, such as circumstances which increase criminal liability or Justify the imposition of an additional penalty or consequence (also if individual offenses were restricted or dropped and these were taken into account as an aggravating factor without notice);

• Obstructing communication between the accused and the defense attorney, e.g. due to inadequate seating arrangements, as well as obstructing the perception of the faces, facial expressions and gestures of witnesses;

• Insufficient preparation time for the closing statement (plea);

• Reference to facts outside the trial in the closing statement by the public prosecutor or the co-plaintiff. This also applies to the verdict, which may not be based on findings of fact or other events that were not part of the main hearing;

• Judgment not announced within the 14-day period or not filed on time (deposed);

• unresolved auxiliary or other conditional motions for evidence in the grounds of the judgment (also a factual and legal error);

• incorrect reproduction of the results of the main hearing in the judgment (insofar as these can be verified from the written parts of the procedural files. A contradiction between the content of a document read out in the main hearing and the grounds of the judgment can lead to the unlawfulness of the guilty verdict – also a factual and legal error;

• incorrect or incomprehensible Assessment of all evidence and evidence results that were the subject of the main hearing (also a factual and legal error);

• contradictory or clearly incomplete assessment of evidence (also a factual and legal error);

• inadmissible restriction of the defense on a point that is essential to the verdict by a court decision.

Factual and legal errors
These usually arise from the reasons for the verdict itself and occur when the court makes errors in the legal assessment of the underlying criminal law, in the assessment of evidence or in the sentencing.

All three areas have in common that errors occur extremely frequently, but the lawyer’s ability to find and correctly complain about errors is just as often flawed. After all, the lawyer is not only required to know and find the relevant legal errors, in many cases he must also be able to identify unresolved legal problems and also be able to justify them precisely in formal legal terms. This requires profound scientific knowledge, particularly in the area of ​​criminal law:

• While the incorrect application  of several criminal offenses committed simultaneously (so-called competition) or the non-application  of a specific criminal law  rarely play a role in the law of appeal as possible errors in the legal assessment, the appeal lawyer must examine all the more meticulously the correct application of the respective criminal law  and investigate whether the facts established in the judgment actually justify the application of the criminal provisions used by the trial judge. (If, for example, in the case of an attempted crime the court fails to consider whether withdrawal from the attempt would exempt the defendant from punishment, or if in the case of a sexual offense the court overlooks the fact that the sexual act must be significant, the judgment is incorrect. The same applies if a court does not adhere to higher court case law when interpreting laws or if it makes an incorrect legal assessment of the behavior observed by the perpetrator);

• Although it is repeatedly said that the assessment of evidence is the judge’s own responsibility and therefore cannot be reviewed by appeal courts, there is now a trend whereby appeal courts also ask whether the assessment of the evidence by the trial judge is plausible  – i.e. comprehensible to the appeal court. In doing so, one must not make the mistake of making one’s own alternative assessment because one considers the court’s considerations to be unconvincing, considers one’s own arguments to have been ignored, or sees another assessment of a witness statement as more obvious. This would be an inadmissible attack on the trial judge’s assessment of evidence.

• Conclusions drawn by the judge are open to challenge if they deviate so much from the factual basis that they are nothing more than a mere assumption, or if the assessment of the evidence is contradictory and unclear or contains gaps. The same applies if logical laws of thought and empirical principles are not observed or if obvious alternative possibilities are not discussed. (If the judge bases his conviction of the accused’s guilt, for example, on the fact that the statements of the victim and the accused “largely” agreed, but the statements of the accused and the victim reproduced in the judgment show that the accounts differed in almost all essential points, this would be a blatant violation of the consistency and plausibility of the assessment of evidence. The same applies if a court bases its conviction on the precise descriptions of the sexual intercourse alleged to be non-consensual, but does not explain that such descriptions are also to be expected in the case of consensual intercourse);
• A violation of the principle “in case of doubt, for the accused” is, however, only rarely open to challenge. The principle of doubt does not state when a judge has to doubt, but only that the defendant should be acquitted if he has doubts. The complaint of violation of the principle of doubt can therefore only be successful if the court’s doubts arise from the judgment itself.

• The case law is particularly strict in cases of one’s word against another’s. In such a case, the witness’s statement must be subjected to a special credibility test, since the defendant has few options for defense. A complete overall assessment of the evidence is then of particular importance, and the reasons for the judgment must show that the judge has recognized all the circumstances that could influence the decision and has taken them into account in his considerations. In this respect, the following guidelines in particular exist in the case law of the highest courts for assessing credibility:
• Analysis of the personality of the witness  (assessment of the ability to make a reliable statement)
• Examination of the history of the statement,
• Investigation of possible motives for the statement,
• Analysis of the quality of the statement (consistency of the statements in terms of content, level of detail, plausibility of the information, clarity and structure of the information),
• Complete overall assessment of all evidence (this also includes evidence outside the witness statement, such as events and circumstances after the crime). Special requirements for the assessment of evidence also apply when a witness only reports the information of another witness, so-called hearsay witness).

• A legal error that is often overlooked but frequently leads to successful appeals is errors in the determination of the sentence, the so-called sentencing. In addition to missing descriptions of the personal and financial circumstancesand the question of whether the judge used the correct range of punishment  (keyword: mitigating circumstances), most errors occur in the sentencing considerations. An almost classic example of this is a breach of the prohibition of double use, according to which elements of the criminal offense may not be used again when determining the sentence. (If, when accused of bodily harm, criminal energy and willingness to use violence are considered to be to the detriment of the perpetrator because this typically accompanies the commission of bodily harm, this is inadmissible. Considerations that the defendant has not confessed, denies the crime despite overwhelming evidence, has shown no insight or remorse or has not made amends for the damage, has played down his own crime or has not spared the victim from giving evidence are also inadmissible);Very often, mitigating circumstances of coercive measures are overlooked (searches / pre-trial detention) as well as professional and economic disadvantages. The same applies to negative media coverage and long proceedings between the crime and the verdict.

Deadlines
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The deadlines in the law of appeals are extremely short. From the day of the oral announcement of the judgment (against which you want to take action) you only have 1 week to lodge an appeal in writing (or in the minutes of the registry). If the judgment is announced on a Monday, the appeal must be lodged no later than the following Monday.

The deadline within which the lawyer must justify the appeal is also very short. This deadline for justifying the appeal is only 1 month after the written reasons for the judgment have been served. While, especially in extensive proceedings, many weeks can pass before the written judgment is served, the deadline for the lawyer to justify the appeal cannot be extended under any circumstances.

Therefore, the time within which the entire judgment and the minutes of the main hearing(s) must be reviewed by the lawyer is extremely short and for this reason alone requires contemporary expertise and experience in appeal law, without which it is impossible to provide sufficient reasons for the appeal in such a short time frame.

Especially while waiting for the written judgment, you should contact an experienced appeal specialist so that they can familiarize themselves sufficiently with the case in advance and start preparing the reasons for the appeal immediately after the reasons for the judgment have been served.

Revisionseinlegung
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The filing of the appeal, i.e. informing the court that the judgment is being contested, must not be confused with the justification for the appeal. Unfortunately, mistakes are often made here. Without knowledge of the written judgment/record, no statements can be made at the time of filing regarding legal errors in the matter, let alone procedural errors. Such deficiencies make it clear to the appeal court that the lawyer is not familiar with appeal law.

In principle, it is up to the individual to decide to what extent the judgment should be reviewed. Therefore, it is first necessary to carefully consider whether the appeal should be limited to individual points, e.g. only to the question of suspension on probation, the severity of the sentence or individual offenses out of several offenses. This means that other points are excluded from review by the appeal court and become legally binding. However, if you want to have the greatest possible chance of having the judgment overturned, you will raise the appeal against the entire judgment, i.e. in general.

Further course of the appeal procedure
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If the appeal is filed on time and the applications for appeal are submitted on time and in the prescribed form, the appeal will be served on the public prosecutor’s office. This has the opportunity to submit a counter-statement within one week.

After the public prosecutor’s office has submitted the counter-statement (and, if applicable, the appellant’s statement on this), the files are sent to the appeal public prosecutor’s office (General Public Prosecutor’s Office or Federal Prosecutor General). This in turn forwards the files with its statement to the appeal court, usually together with the request to dismiss the appeal.

Once the appeal public prosecutor’s office has served its request to dismiss the appeal, the appeal lawyer has the opportunity to submit a counter-statement within two weeks. In this case, the lawyer must check whether the reasons for the application by the public prosecutor’s office have dealt with all procedural and substantive legal objections to the reasons for the appeal.

Decision options of the appeal court

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The appeal can

• be rejected as inadmissible or manifestly unfounded
• be successful in full by having the verdict overturned
• be successful in part by having the verdict overturned
• lead to a correction of the guilty verdict (different criminal law)
• bring the legal consequences to annulment (milder sentence)
• bring an acquittal on legal grounds

If the verdict is overturned, the case is usually referred back to another chamber of the same regional court. In rare cases, a hearing may take place before the appeal court.

Success
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Revision in criminal proceedings is very demanding and complex and also involves high formal hurdles.
Even the smallest of errors can lead to inadmissibility, which is why the failure rate is generally extraordinarily high. However, this is not because judges rarely make mistakes – quite the opposite: In fact, inadequate reasons for appeal by the defense attorney often lead to failure because the defense attorney is not sufficiently familiar with the complex law of appeals.

A particularly common mistake in the defense attorney’s reasons for appeal is the reference to real or alleged errors in the judgment which are, however, irrelevant to the assessment of the appeal court – either because the errors should have been complained about in the lower court or because they were addressed orally in the trial but not in writing in the judgment / record. Conversely, formal errors in the record or judgment can lead to the conviction being overturned even if this was not taken into account in the trial.

It is therefore important as a defense attorney to examine the judgment from the perspective of the appeal court, which was not present at the hearing of the contested judgment and can only make its assessment on the basis of the written judgment/record. For this reason, the appeal process is well suited to obtaining a second opinion from an experienced appeals attorney.

Our law firm does not only work exclusively in criminal law, each of our attorneys has also specialized in individual sub-areas of criminal law, particularly appeals law. In this way, we offer our clients – similar to a specialized medical specialist – the greatest possible know-how in the smallest possible area. For this reason, we have not only successfully won numerous appeals in criminal law, but also represent our clients nationwide. In criminal law, a favorable outcome of the case depends on the skills of the lawyer.

Involvement of an audit specialist
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Especially in appeal proceedings, the involvement of an experienced audit specialist is common practice and is almost mandatory in the case of an appeal to the Federal Court of Justice. Our law firm has already achieved considerable success in the area of ​​appeal law and regularly works successfully with other lawyers and criminal defense attorneys from all over Germany.

It is possible to appoint a second attorney for the appeal proceedings at any time. Criminal procedural law allows up to 3 freely selectable attorneys per accused/defendant to be appointed (in addition to a public defender who has already been appointed).

A complete change of attorney is also possible at any time, whether you have only been represented by a lawyer for a few hours or for many months.

General information on appeals
APPEAL

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If the District Court (i.e. not the Regional Court!) convicts in a criminal case, an appeal can be lodged against the verdict. (Only an appeal is possible against verdicts of a Regional Court).

Since district courts judge the majority of the accused cases and therefore have to process a particularly large number of cases, one cannot help but get the impression that district court judgments are often rather superficial and not infrequently legally incorrect. However, precisely because district courts – unlike proceedings before regional courts – judgements are much less formal and all the more superficial, the legislature has created an additional, fully-fledged court instance to enable criminal proceedings before a regional court to be reopened from the beginning again.

In the appeal, the process can therefore be carried out in full again and new facts and evidence can also be presented. In this way, the defense can be completely restructured and the accusation can be heard again under new circumstances. The appeal court is not bound by the district court’s judgment and can decide completely differently in both legal and factual terms. The appeal therefore offers a real second chance to revise a judgment that has already been made.

Which court decides?
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As the appeal hearing is a completely new factual instance, all witnesses can be heard again and all evidence can be introduced into the process again.

The regional court in whose district the first instance district court is located is always responsible for the appeal. It is irrelevant whether a single judge or a lay judge court was responsible in the first instance proceedings. In the appeal instance, the court is always chaired by a professional judge and two lay judges (lay judges).

Filing the appeal / deadline
Important: The appeal must be filed within 1 week of the verdict being pronounced. If the verdict was announced on a Monday, the sentencing court (district court) must receive a statement by the following Monday at the latest stating that the verdict is to be contested – in writing or recorded in the court’s office. This deadline must be met, otherwise the verdict will become final and thus uncontestable. The deadline cannot be extended!

Justification of the appeal
Unlike an appeal, the appeal does not necessarily have to be justified in writing. However, it may be advisable to inform the court in writing in advance of the direction in which a possible defense is aimed. Especially if legal questions are raised or if a defense against the sentence (i.e. the reduction of the sentence from the previous instance) is intended, it can make sense to set the right course in advance. The same applies, of course, to the limited filing of an appeal (see the next point).

Appeal in full or only in part?

In principle, it is up to the individual to decide to what extent the verdict should be reviewed. Therefore, one must first carefully consider whether the appeal should be limited to individual points, e.g. only to the question of suspension on probation, the severity of the sentence, or individual offenses out of several. This will make other points legally binding.

If the first instance conviction was fundamentally “right”, an appeal limited to the severity of the sentence can offer a very good chance of a better verdict. However, the appeal can also be limited to the legal assessment, for example to object to the district court’s classification of the accused offense as dangerous and not “just” simple bodily harm.
And even in the case of mere fines, not only the number of daily rates but also the amount of the individual daily rates can be challenged.
Important: An isolated challenge to the secondary consequences, such as a failure to grant probation, is also possible in the appeal.

Decision options for the appeal court
The appeal can
– be rejected as inadmissible (before the main hearing, e.g. missed deadline)
– lead to the discontinuation of the proceedings (in whole or in part)
– partially or completely overturn the judgment and lead to a new judgment / acquittal
– lead to a correction (in whole or in part) of the guilty verdict
– overturn the statement of legal consequences (in whole or in part).

Our specialization in appeals
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The appeal in criminal proceedings differs little from the first instance, but it is the last promising chance to improve the initial situation: New evidence can be collected, all (including new) witnesses can be scrutinized again, (new) expert opinions are requested, discussions (so-called deals) are held with the public prosecutor and the court and, of course, the legal situation is completely reassessed.

For this very reason, and because the first-instance district courts also make many mistakes due to the mass processing of numerous cases, it is urgently necessary to have an experienced specialist at your side during the appeal. This is the only way to make the most of the new opportunities that arise in the second instance and to use the many freedoms and discretionary powers that an appeal judge has in the second instance.

A real second chance!
If there is a reasonable prospect of a different assessment of the case, e.g. because the allegations cannot be proven or problematic legal questions exist, the client’s legal position must be rigorously implemented and fought for with all available criminal procedural means – e.g. through (new) motions for evidence, expert opinions and witnesses, more forceful witness questioning or the convincing presentation of (other) legal aspects. Conversely, a confession sentence defense or a victim-offender settlement can also be effective and regularly lead to a significantly milder sentence in the appeal court.

However, this requires a specialist who not only has the necessary experience but also professional expertise – particularly with regard to the much more formal process of criminal proceedings before the regional court as the court of appeal.
Our law firm does not only work exclusively in criminal law, each of our lawyers has also specifically specialized in individual sub-areas of criminal law, particularly in criminal legal remedies. In this way, we offer our clients – similar to a specialized medical specialist – the greatest possible know-how in the smallest possible area. For this reason, we have not only successfully represented numerous appeals in criminal law, but also advise and represent our clients nationwide. Because in criminal law, a favorable outcome of the proceedings depends on the skills of the lawyer.

Deadlines
APPEAL

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The deadline for filing an appeal is extremely short. It must be made within one week of the verdict being pronounced at the sentencing court (district court).

Risks and opportunities of an appeal
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What are the risks of an appeal?
In conclusion, there are no disadvantages to having the verdict reviewed by way of appeal, provided the public prosecutor has not lodged an appeal. In this case, the judgment of the lower court may not be made worse by law (prohibition of aggravation). This means that if an appeal is lodged exclusively on the defendant’s side, the appeal court is limited in its ability to set a sentence; the sentence to be imposed may not be higher than the judgment of the first instance. In practice, the public prosecutor’s office very often also appeals against the judgment, so the prohibition of aggravation does not apply.

In addition, an appeal can be withdrawn up until the oral hearing without the consent of the public prosecutor’s office.

And even if the public prosecutor’s office also appeals, experience shows that judgments rarely become worse. The majority of appeals result in an improvement of the judgment of the first instance, or at least no worsening, especially since here too the public prosecutor’s office regularly withdraws the appeal if the defendant does so.
Caution is advised, however, if you have been acquitted or sentenced leniently by the district court, but the public prosecutor or co-plaintiff appeals. In such cases, the opponent also has a new chance to enforce the punishment they want.

Conversely, if you have achieved a very “favorable” result, you are not prevented from still appealing in order to possibly achieve an even better result.

What are the chances of an appeal?

The appeal instance is a full and new factual instance. In the appeal, all witnesses already heard in the first instance can be heard again (and possibly differently), new witnesses can be questioned, evidence and expert opinions can be presented and, if necessary, the defense tactics can also be changed (e.g. confrontational defense / sentence defense / confession / compensation for damages / perpetrator-victim compensation, etc.). The first instance proceedings in the district court are therefore completely reopened and heard before a new judge who is not bound by the verdict and can therefore decide completely differently, e.g. reach a significantly more lenient verdict or even acquit the defendant or even dismiss the proceedings.

It is now also possible to appoint a defense attorney of your choice for the first time or to change defense attorneys without any problems.

In the time leading up to the main appeal hearing – usually a few months – it is often possible to successfully obtain new physical evidence, expert opinions or witnesses. In the case of lying witnesses for the prosecution, there is a reasonable hope that they will not remember their false and possibly agreed-upon testimony so well and will become entangled in contradictions in their testimony. A further advantage of the appeal court is that one can adapt even better to the witnesses, not least because their testimony (with all its strengths and weaknesses) is already known from the trial in the first instance.

Another important point is that the timely filing of an appeal suspends the legal force of the judgment. The defendant is therefore still presumed innocent – ​​he is considered not convicted and therefore innocent until the verdict of the appeal court (i.e. despite the conviction in the first instance). Therefore, no entry is made in the certificate of good conduct, and probation conditions and court costs are only incurred once the proceedings have been concluded with final and binding effect. If the district court has imposed a prison sentence that is not suspended, this also means that the convicted person does not have to go to prison until the next higher instance has made a decision.

The appeal as a real second chance
In summary, it is generally advisable not to simply accept a judgment that is perceived as unjust. It is advisable to have at least the written judgment examined by an experienced defense attorney from the point of view of appeal. Because the appeal can be a real opportunity to develop a tailor-made strategy together with an experienced (new) criminal defense lawyer and literally turn things around.

Grounds for appeal
APPEAL

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The reasons why the previous court’s judgment is wrong or at least “should” have been different in the outcome are varied and cannot be listed exhaustively. Because unlike an appeal, an appeal is not just limited to legal and procedural errors in the judgment of the lower court.

Because an appeal opens up the possibility of starting the proceedings from the beginning again, there may also be actual reasons, such as new or different witness statements, evidence, expert opinions, etc., which allow a completely new assessment of the case. The behavior of the defendant since the first instance conviction may also be taken into account (positively) in the appeal, and the wide discretionary scope of a judge in reaching a judgment should not be underestimated, so that the appeal judge can reach a completely different (more lenient) decision even if the evidence and initial situation remain the same.

There may also be completely different reasons for filing an appeal, even if it is only because you have to play for time so that your certificate of good conduct remains “clean” until the appeal court has pronounced a verdict (entries are only made once the verdict has become final) or because you still have a few things to organize in your professional / social environment before a prison sentence that is certain to be imposed.

If the public prosecutor’s office has appealed on its own initiative (and not just out of “spite” because the defendant has also lodged an appeal), the defendant has no choice but to face the new trial. Extreme caution is advised here: the appeal also represents another opportunity for the public prosecutor’s office to obtain a severe conviction instead of an acquittal or a suspended sentence.

Success
APPROACH

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The core of our success strategy – especially when it comes to appeals – is our extremely narrow specialization. Not only do we specialize exclusively in criminal law, each of our lawyers also concentrates on individual sub-areas of criminal law. When it comes to taking action against a judgment that has already been passed and exhausting all appeal options in the district court proceedings, it is essential to hire a lawyer who specializes in appeals – in order to revise wrong decisions, harsh or incorrect judgments, you need someone who knows the maximum possibilities and can achieve the best possible outcome.

Especially in the case of an appeal, it is important – where necessary – to fight for the best possible result with confrontational commitment, but also with legal expertise and interdisciplinary expertise if you want to avoid or at least mitigate the punishment.

Our law firm has made it its mission not to subordinate itself to state action under any circumstances, but to fight, if necessary with all the criminal procedural means available to it: In no other area of ​​law does a judge have as much freedom and discretionary scope as in criminal law, if you just consider the broad legal consequences and penalties that criminal proceedings provide for: from a dismissal of proceedings with or without a fine, to prison sentences of a few months to many years – with or without probation.

We have specialized primarily in criminal procedural legal remedies, particularly in appeals. The experience gained from our specialization, as well as our scientific expertise – for which there is simply no time in the everyday practice of a “normal” lawyer – allows us to meet courts on an equal footing and achieve above-average results.

Anwechsel Anwalt
BERANGE

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If a court hearing in the first instance does not end with the desired result, many clients are faced with the question of what to do if they are no longer 100% sure that their lawyer is representing them well and competently, e.g. because they feel they have been given incorrect advice or the lawyer has even promised them a much better result. Sometimes it is also interpersonal issues or differences that are at stake, or the proverbial “bad feeling”, or perhaps simply the recommendation of a supposedly “better” or more specialized lawyer.

What many people do not know: A change of lawyer is possible at any time! Whether you have only been represented by a lawyer for a few hours or for many months. Because in criminal law in particular, trust in your lawyer is the most important factor for a successful criminal defense.

Incidentally, it is also possible to appoint a second lawyer for criminal proceedings at any time. Criminal procedural law even allows up to 3 freely selectable lawyers per accused / defendant to be appointed (in addition to a public defender who has already been appointed).

Particularly in “large proceedings”, i.e. primarily before the regional court and in detention cases (pretrial detention), the simultaneous representation of more than one lawyer has become an indispensable success factor for our law firm.