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In the German legal system, there are various ways to challenge a court decision and have a case retried or reviewed. The three best-known legal remedies are the revision procedure, the retrial procedure and the appeal procedure.
The appeal: the second instance for questions of fact and law
An appeal is the first step in challenging a first-instance judgment. It offers the opportunity to re-examine the entire proceedings - both from a legal and a factual perspective. This means that the appeal procedure not only examines whether the court has applied the law correctly, but also whether the findings of fact were free of errors.
New evidence or witnesses can therefore be introduced in the appeal in order to influence the factual situation. In contrast to the appeal on points of law, which is limited to errors of law, here the entire facts of the case are reopened become. Appeal proceedings typically come before the regional court or the higher regional court, depending on the court that issued the original judgment.
A prominent example of appeal proceedings is the case of former manager Klaus Zumwinkel, who was convicted of tax evasion. Following the verdict at first instance, the case was appealed, with the court of appeal reassessing both the evidence and the legal aspects.
The audit: checking the legal assessment
The Revision criminal law differs fundamentally from an appeal, as it does not aim to review the content of the judgment or on the basis of new facts; instead, the appeal procedure focuses exclusively on errors of law. It examines whether the court applied the law correctly and whether the proceedings were conducted properly. New evidence or witness statements play no role in the appeal proceedings.
The appeal will be heard by higher instances such as the Federal Court of Justice (BGH) or the Higher Regional Court. The original judgment is only reviewed for its legality. A frequently used ground for appeal is a procedural error, for example the disregard of procedural rules or the incorrect interpretation of laws.
A well-known case that went all the way to the Federal Court of Justice was the case of Jörg Kachelmann. Following an acquittal for rape, the public prosecutor's office lodged an appeal to review the verdict for legal errors. However, the Federal Court of Justice confirmed the acquittal, ruling that the lower court's decision was in accordance with the law.
The retrial: new evidence, new proceedings
The retrial is a special form of judicial review that is only permitted under strict conditions. It serves to correct judgments if new facts or evidence subsequently come to light that would have influenced the original judgment. A retrial is therefore out of the question if only the interpretation of the law or the assessment of the facts is in doubt. There must be serious new findings that were not available at the time of the original trial.
An example of such a resumption case is The Gustl Mollath trial. Mollath was committed to a psychiatric ward for several years until new evidence and investigation results forced a retrial, which ultimately led to his release.
Differences and similarities
Although the aim of appeal, revision and retrial is to review court proceedings for errors, they differ significantly in their requirements and scope of application.
- AppealThis involves a re-examination of both the facts and the application of the law. New evidence can be introduced and the entire proceedings are renegotiated.
- RevisionThe appeal focuses exclusively on errors of law. It is a question of whether the court has applied the law correctly and whether procedural rules have been observed. New facts do not play a role.
- ResumptionThis procedure is used if new evidence subsequently emerges that could significantly influence the verdict. This is an exception that only applies in the case of serious new findings.
