“The defence announces appeal against the ruling” is a statement that is often heard in the media when a person has been convicted. This sounds like the whole process would be reopened before the appellate court – the Higher Regional Court or the federal supreme court.
However, this view is based on a widespread misconception. In fact, an appeal can only criticize infringements of legislation in the previous judgement.
This means that the auditor must convince the appellate court that the present judgement is flawed. The difficulty lies in the fact that the necessary audit can essentially only be made on the basis of the present written judgement.
As a rule, no witnesses are heard or other evidence is raised. The error must therefore result directly from the judgement.
Detecting a legal error in a judgement is rightly called the supreme discipline of criminal law. This requires a strong sense of legal issues. Clients must particularly take note that the appeal is a time-bound legal remedy. The appeal must be lodged within one week of the judgement being given and, as a rule, one month after the delivery of the written judgement. Insofar as the deadlines for an appeal have expired and the verdict is legally effective, this can only be tackled with a retrial.
The retrial is the remedy for cases in which a legally valid judgement – citation and appeal are no longer possible – is available.
The often very extensive examination of a retrial procedure is particularly appropriate when the legally valid judgement has far-reaching consequences for the future life of the client – for example, the arrangement of security custody, imposition of long-term imprisonment or fines, loss of employment.