Appeals after a guilty verdict in Germany: how the process works
A guilty verdict in a German criminal court is not always the final word. In most cases the defendant, the prosecution and, in some circumstances, a joint plaintiff can ask a higher court to review the decision. Until the time for appeal has run out or the appeal has been decided, the judgment is not legally final (rechtskräftig).
This guide explains in plain English how the main routes of appeal work. It is a general overview, not legal advice. Deadlines and rules are set by the German Code of Criminal Procedure (Strafprozessordnung) and should be checked against the current text and the written instructions given with a judgment. [CHECK]
Two main routes: Berufung and Revision
German law distinguishes between two kinds of appeal against a criminal judgment. They have different purposes and are heard by different courts.
- Berufung (appeal on the facts and the law): the case is heard again in substance. Witnesses can be questioned afresh and the court can reach its own view of what happened.
- Revision (appeal on points of law): the higher court does not retry the case. It examines only whether the law was applied correctly and whether the trial followed the proper procedure.
Which court hears the appeal?
The route depends on which court gave the first judgment. The table below gives a simplified picture.
| First-instance court | Appeal on facts and law (Berufung) | Appeal on law only (Revision) |
|---|---|---|
| Local court (Amtsgericht) | Regional court (Landgericht) | Higher regional court (Oberlandesgericht), either after a Berufung or directly in a "leapfrog" appeal |
| Regional court (Landgericht), as first instance | Not available | Federal Court of Justice (Bundesgerichtshof) |
| Higher regional court (Oberlandesgericht), as first instance in certain serious cases | Not available | Federal Court of Justice (Bundesgerichtshof) |
In practical terms, a defendant convicted of a less serious offence at a local court usually has two chances to challenge the decision. Someone convicted at first instance in a regional court of a very serious offence generally has one: a review on points of law.
How a Berufung works
A Berufung must be lodged within one week of the judgment being announced in court. The appeal can be limited, for example to the sentence only, which can make the process quicker and narrower.
At the appeal hearing the regional court looks at the evidence again. It may hear witnesses and experts once more and may reach different findings from the first court. It can uphold the verdict, change the sentence, or acquit.
Illustrative example. A defendant is convicted of theft at a local court and believes the court wrongly preferred one witness's account to another. A Berufung allows the regional court to hear both witnesses again and decide for itself whom to believe. This example is hypothetical and does not describe a real case.
How a Revision works
A Revision must also be started within one week of the judgment being announced. The reasons for the appeal must then be set out in writing within a further deadline, which runs from the service of the written judgment. [CHECK] In practice, a defence lawyer usually prepares these written grounds.
There is no new hearing of the evidence. The higher court works from the trial record and the written judgment. It asks, for example, whether:
- a procedural rule was broken during the trial;
- evidence was admitted or excluded wrongly;
- the law was misapplied to the facts the court had found;
- the sentence was calculated or explained in a legally flawed way.
If the court finds a serious legal error, it can send the case back to be heard again, usually before a different chamber or court. If it finds no error, the appeal is rejected and the judgment becomes final. Some appeals are rejected by written decision without a hearing where the court considers them clearly unfounded.
Illustrative example. A defendant argues that the trial court relied on a statement that should not have been admitted under the rules of procedure. A Revision can examine that argument, but it cannot reopen the question of whether a witness was believable. This example is hypothetical.
Who can appeal?
The defendant can appeal against a conviction or a sentence. The public prosecutor can also appeal, including in the defendant's favour. In some cases a joint plaintiff (Nebenkläger), such as a victim who has joined the proceedings, can appeal as well, though with more limited rights.
A general principle applies where only the defendant appeals: on a fresh hearing, the sentence generally cannot be made harsher than the original one. If the prosecution also appeals, that protection does not apply in the same way.
What happens after the ordinary appeals?
Once the ordinary appeals are used up or the deadlines have passed, a judgment is final. Further options exist but are exceptional:
- Constitutional complaint to the Federal Constitutional Court (Bundesverfassungsgericht), where a person argues that their fundamental rights were violated and other remedies have been exhausted.
- Reopening of proceedings (Wiederaufnahme), permitted only in narrow circumstances, such as genuinely new facts or evidence.
- Application to the European Court of Human Rights, after domestic remedies have been used, where a breach of the European Convention on Human Rights is alleged.
Frequently asked questions
Does a conviction take effect straight away if the defendant appeals?
Generally, a lodged appeal prevents the judgment from becoming final, so a sentence is normally not enforced as a final sentence while the appeal is pending. A defendant may still be held in pre-trial detention if the court has ordered it. Details depend on the individual case.
How long do I have to appeal?
The first step, for both Berufung and Revision, must be taken within one week of the judgment being announced. This is a short deadline, so defendants are usually advised to speak to a lawyer immediately. Further deadlines apply for written grounds in a Revision. [CHECK]
Can I introduce new evidence on appeal?
In a Berufung, yes: the appeal court reviews the evidence again and can hear new evidence. In a Revision, no: the court looks only at legal and procedural errors.
Can the sentence be increased if I appeal?
If only the defendant appeals, the sentence generally cannot be increased. If the prosecution appeals as well, a higher sentence is possible.
Is an acquittal also open to appeal?
Yes. The prosecution can appeal against an acquittal, and the same routes of Berufung and Revision are generally available, depending on the court involved.
What does "rechtskräftig" mean?
It means legally final. A judgment is rechtskräftig when no ordinary appeal is possible any longer, either because the deadlines have passed or because the appeals have been decided.
Should news reports call someone guilty while an appeal is pending?
Reports should state accurately that a person has been convicted and that an appeal has been lodged or is possible. Once an appeal is lodged, it is good practice to say that the verdict is not yet final.