A judgment in criminal law is not automatically final. There are various options for appealing against a judgment, depending on which court handed it down. Appeals must be lodged within 3 days of the judgment being handed down. After the judgment has been issued in writing and served, any appeals can be withdrawn or executed. The appeal must be lodged in writing within 4 weeks of service of the judgment.
Not only the accused and their representative have the right of appeal. The public prosecutor's office and any legal representative (e.g. legal guardian) can lodge an appeal.
Against a judgment of the district court
Appeal (§§ 464, 468, 469 StPO)
An appeal can be lodged if you do not agree with the judgment. Reasons for an appeal are
- Error giving rise to nullity
- The factual assumptions underlying the guilty verdict and the assessment of the evidence
- The pronouncement of guilt (guilty plea)
- The penalty or civil claims awarded to the private party
Against a judgment of the regional court
As a single judge
Appeal (§§ 468, 469 StPO)
An appeal may be lodged on the same grounds as with the district court.
As a court of lay assessors
Lay judges' courts usually decide with one professional judge and two lay judges. The lay judges decide alone on the question of guilt and then together with the professional judge on the question of punishment.
Appeal for annulment (§ 281 StPO)
A judgment can be amended or set aside with a complaint of nullity. Examples of grounds for nullity include
- Violation of regulations: If certain statutory provisions that are important for the conduct of the proceedings have not been complied with during the proceedings.
- Incorrect composition of the court: If the court was not properly composed, for example if a judge was absent or not authorized to deal with the case.
- Deficient defense: If the defendant did not have adequate defense counsel or if his defense was limited in a way that prejudiced his rights.
- Insufficient taking of evidence: If evidence was not properly collected during the proceedings or if decisive evidence was not taken into account.
- Violation of the right to be heard: If the defendant or his defense did not have the opportunity to speak or present their arguments.
Appeal (§ 283 StPO)
The appeal can
- only against the amount of the penalty or
- against the judgment on private law claims
be taken. This means that a verdict by the jury or jury of lay judges on the question of guilt, i.e. whether the defendant committed the crime or not, is incontestable.
As a jury court
The jury court consists of a panel of judges (3 professional judges) and eight jurors. The jurors decide on the guilt of the accused alone. This decision is called a verdict, which does not have to be substantiated. The following appeals can be lodged against a jury verdict:
Appeal for annulment (§ 345 StPO)
- Violation of the right to be heard: If the defendant or his defense did not have sufficient opportunity to make their case or present their arguments.
- Incorrect composition of the court: If the court was not properly composed, for example due to the absence of a judge or if a judge was not authorized.
- Violation of procedural rules: If, during the proceedings, fundamental legal provisions that are crucial for the fairness of the proceedings were not observed.
- Defective taking of evidence: If the court has not taken evidence properly or has not considered essential evidence.
- Insufficient justification of the judgment: If the judgment is not sufficiently reasoned or the reasons for the decision are unclear.
Appeal
The appeal can be lodged on the same grounds as with the court of lay assessors.
What can you do against a final judgment?
A retrial is possible if there is new evidence or facts that were not already presented at the main hearing. If this evidence was known at the time of the main hearing but was not presented, a retrial is not possible.
Resumption of the proceedings (§§ 352 ff. StPO)
A retrial is possible if there is new evidence or facts that were not already presented at the main hearing. If this evidence was known at the time of the main hearing but was not presented, a retrial is not possible.
Subsequent mitigation of punishment (§ 31a StPO)
An application for retrospective mitigation can be made to the court of first instance if new grounds for mitigation subsequently become known, such as compensation for damages (particularly relevant in the case of property offenses or breach of maintenance obligations).
Appeal for annulment to uphold the law (§ 23 StPO)
The General Procurator's Office decides whether a nullity complaint to uphold the law ("Wahrungsbeschwerde") is possible. This is where the appeal is lodged. If there are serious errors of law (essential to the decision), the Procurator General's Office can lodge an appeal to the Supreme Court and request that the judgment be amended or set aside.
Fundamental rights appeal (§ 2 GRBG)
An appeal can be lodged if the ordinary appeals procedure has been exhausted and there has been a violation of the fundamental right to personal freedom. This may be the case if pre-trial detention is imposed unlawfully, if pre-trial detention is continued, if release from pre-trial detention is delayed or if there is another violation of personal freedom in connection with pre-trial detention. Violations of the law in relation to extradition detention, preventive detention or a court-ordered production for trial can also be asserted by means of a fundamental rights complaint.
Renewal of criminal proceedings (ECHR)
A renewal of the criminal proceedings can be sought from the European Court of Human Rights (ECtHR) if international human rights standards have been violated.
Conditional release (§ 265 StPO)
An application for conditional release can be made in order to be released from prison early. There is the one-half rule and the two-thirds rule, in which an application for conditional release can be made after half or two-thirds of the sentence has been served.