The Opportunity to Reopen a Final Judgment
When a judgment becomes final, for example, because all legal remedies have been exhausted (appeal, constitutional complaint, ECtHR, clemency petition), the imposed penalty can generally no longer be overturned or modified. After all, the legislature intended that every legal process should eventually come to an end – even in the case of erroneous criminal judgments.
However, this is hardly acceptable if it means that someone remains wrongfully imprisoned for many years.
Unlike civil court rulings, which usually involve only financial matters, criminal law entails severe sanctions such as imprisonment. Therefore, the legal system provides an opportunity to reopen a closed criminal case to rectify judicial errors.
By initiating a retrial, a final criminal judgment can be “reopened” to seek the annulment of the original judgment and potentially obtain an acquittal or at least a reduction in sentence.
The purpose of retrial proceedings is to prevent or correct a miscarriage of justice, giving the convicted person a (final) opportunity to rectify an erroneous judgment.
However, a retrial is only possible under very strict conditions. The most relevant case in practice is when new facts or evidence emerge that can prove the convicted person’s innocence. These must be discoveries that could lead to a different evaluation of the evidence and were either unknown or disregarded at the time of the original final judgment, regardless of whether they could have been considered earlier.
Legal errors in the contested judgment or incorrect evaluation of evidence do not constitute new facts. This means that violations of evidentiary rules or misinterpretations of criminal law cannot serve as a basis for retrial – even if they were discovered “newly” after the final judgment was issued.
Furthermore, retrial proceedings are not initiated ex officio. Unlike the regular criminal trial, it is not the state’s responsibility (courts, prosecutors) to seek new evidence and facts. Neither the court nor the prosecutor’s office plays a controlling role – the convicted person alone holds the responsibility for presenting and proving their case.
Additionally, the procedural hurdles for retrial are extremely strict and follow entirely different procedural rules than other areas of criminal law.
On a positive note, a worsening of the judgment in a retrial in favor of the convicted person is legally prohibited.
In summary: Retrial in criminal law is the final opportunity to correct a miscarriage of justice and reopen the trial. However, this is generally only possible if new evidence is available that was previously unconsidered. Moreover, retrial proceedings are legally highly complex, which is why there are only about 90 retrials annually in Germany, compared to over 800,000 final criminal judgments in the same period.
Difference Between Appeal and Retrial
Retrial proceedings apply exclusively to final criminal cases, meaning they can only be pursued when all legal remedies (e.g., appeal, revision) have been exhausted or are no longer possible due to finality.
An appeal is only possible against judgments from the district court and allows a full review of the initial judgment by a higher court in a new trial. A revision enables the review of judgments from both district and regional courts, but only for legal errors in a written procedure.
Both appeal and revision are only possible against non-final judgments and must be filed within one week of the judgment; otherwise, the judgment becomes final.
Once a judgment (or penalty order) is final, it can only be contested through the significantly more complex retrial procedure.
A major advantage of appeal and revision is that the finality of the judgment is suspended until a decision is made on the legal remedy. This means that in most cases, the convicted person does not have to serve their prison sentence until a decision is made, and monetary fines or probation conditions do not have to be fulfilled until finality. This is not the case in retrials – here, the challenged decision remains in effect.
However, there are no time limits for retrial! It remains possible even after the sentence has been fully served; legally, a retrial can still be pursued even after the convicted person’s death to restore their honor and justice.
Chances and Risks of Retrial Proceedings
For an application in favor of the convicted person, there is no risk of harsher punishment, as retrial proceedings cannot lead to a higher sentence than the original one.
In certain cases, the retrial court can even order a postponement or suspension of sentence enforcement – meaning that the convicted person does not have to serve their sentence while waiting for the retrial decision. However, postponement or suspension is only granted if the court considers the retrial application to be fundamentally promising.
Statistically, the success rate of retrial applications is only about 2 to 3%, which is due to both the strict requirements and the legal complexity of the application process, as well as the fact that very few lawyers specialize in retrial proceedings.
For this reason, it is advisable to engage a specialist early in the retrial preparation. Without expert knowledge, a retrial application has practically no realistic chance of success.
Preparing a retrial application typically requires significant time and financial investment. Therefore, it is advisable to first seek a realistic assessment of the specific factual and legal situation in the individual case.
About Us
The core of our success strategy – particularly in retrial cases – is our extremely focused specialization. Not only do we work exclusively in criminal law, but each of our attorneys also concentrates on specific areas within criminal law, bringing essential key qualifications. Our firm includes specialist lawyers for criminal law, a former prosecutor, and legal professionals active in academia (including the German Judges Academy), ensuring optimal expertise in the most complex criminal law fields.
When it comes to challenging a previous judgment and exhausting all possibilities in retrial proceedings, it is crucial to engage a lawyer specialized in appeals. To correct judicial errors, overly harsh sentences, or outright wrongful convictions, one needs an expert who understands the full extent of available options and maximizes the potential for success.
Our law firm is committed to using dedicated, serious, and expert legal strategies to exhaust all legal possibilities in criminal proceedings and develop highly effective defense strategies aimed at addressing the typical weaknesses of the judicial system.
Since criminal law involves potentially life-changing consequences for the accused – including the most severe penalties such as life imprisonment – choosing the right attorney is essential.
Given that – just like in medicine – trust in being in the best possible hands is the most important factor when engaging legal representation, you are welcome to contact us at any time for a personal assessment of our experience and competence.
