Change of the legal point of view (Germany)
The change in the legal viewpoint means in German criminal law a different legal assessment of the prosecutor indicted life facts by the court in the trial a notification duty according to § 265 para. 1 sentence 1 triggers Code of Criminal Procedure.
As a legally regulated case of the court's duty of care , the notice is intended to give the accused the opportunity to defend himself and protect him from a surprise decision by the court.
Notice obligation
The notice requirement follows from the Immutabilitätsprinzip and exists when the court due to another as the defendants in the indictment sentence mentioned criminal law will condemn. In practice, a changed assessment is mostly based on new factual findings that have emerged in the taking of evidence , however, a note according to § 265 StPO is also necessary if the facts themselves have not changed, but in the opinion of the court they are legally different than before to be assessed in the admitted charge.
According to Section 265 (2) of the Code of Criminal Procedure (StPO), a note is also required if the main hearing subsequently results in circumstances that increase the penalty. In these cases where the factual and legal situation has changed, the accused has the right to suspend the main hearing if this appears appropriate as a result of the changed situation in order to adequately prepare the indictment or defense (Section 265 (3) of the Code of Criminal Procedure).
Revision
The court violated the notice requirements of § 265 Code of Criminal Procedure, may relying on this procedural defect inspection are placed ( § 344 para. 2 StPO).
If the appellate court rules out that, after the matter has been referred back, determinations can still be made in a new main hearing that lead to a different legal assessment of the offenses, it can change the guilty verdict itself ( Section 354 (1) StPO). Section 265 (1) of the Code of Criminal Procedure does not contradict this if the defendants could not have defended themselves against the changed allegations of guilt in any other way than what happened.
The appellate court can decide for itself whether this is the case or whether another defense is impossible.
Individual evidence
- ↑ Meyer-Goßner / Schmitt, Commentary on StPO, 60th edition 2017, Rn. 3 to § 265 StPO
- ↑ BGH, decision of October 25, 2016 - 2 StR 84/16
- ↑ Detlef Burhoff: The legal notice - not only in the case of a change in the facts ... to BGH, decision November 30, 2010 - 1 StR 509/10
- ↑ Meyer-Goßner / Schmitt, Commentary on StPO, 60th edition 2017, Rn. 8a to § 265 StPO
- ↑ BGH, decision of 23 March 2011 - 2 StR 584/10 BeckRS 2011, 10277
- ↑ BGH, decision of April 19, 2011 - 3 StR 230/10 para. 24
- ↑ Meyer-Goßner / Schmitt, Commentary on StPO, 60th edition 2017, Rn. 39 on § 265 StPO
