Under retrial is a recurrence or renewed rolling judicial or official to understand the process, which had been completed already with a final decision.
In German civil proceedings , a retrial action is only possible under very strict conditions. According to the Code of Civil Procedure, it can only be brought by an action for annulment ( Section 579 ZPO) or an action for restitution ( Section 580 ZPO). Permissible reasons for re-admission are then u. a. the bias of a judge, false statements and forged documents. New facts, on the other hand, are not sufficient to break the legal force .
"The criminal retrial has the function of resolving the conflict between the principles of justice and legal certainty , both of which can be derived from the rule of law , by allowing the principle of legal certainty to be broken for the sake of material justice."
According to German law, the resumption of legally concluded criminal proceedings is only possible under certain conditions. For reasons of legal clarity, an incorrect but legally binding judgment can no longer be overturned. The resumption can, however, break this legal force. Sections 359 to 373a of the Code of Criminal Procedure (StPO) set strict requirements for resumption . In essence, the reopening is a legal institution which, at the request of the claimant, but not ex officio, enables the criminal case that has been concluded with a legally binding factual judgment to be returned to the main proceedings . It is a legal remedy of its own.
Readmission in favor of the convicted person
Criminal proceedings can only be resumed in favor of the convicted person if one of the reasons stated in § 359 No. 1–6 StPO exists.
- if a false / falsified document was assessed as genuine to the detriment of the convicted person ( Section 359 No. 1 StPO)
- if a witness made a false testimony to the disadvantage of the convicted person. In the case of unofficial false statements, there must also be intent, in the case of swearing, however, negligence is sufficient. ( § 359 No. 2 StPO)
- if a participating judge or lay judge (verifiable) has committed a breach of official duty that was punishable and related to the proceedings ( Section 359 No. 3 StPO)
- if a civil court judgment on which the criminal judgment is based has been overturned by another judgment that has become final ( Section 359 No. 4 StPO)
- if new facts or evidence could result in an acquittal or a mitigation ( § 359 No. 5 StPO)
- if the European Court of Human Rights has found a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols and the judgment is based on this violation. ( § 359 No. 6 StPO)
The most relevant case in practice is that of § 359 No. 5 StPO, i.e. the provision of new facts or evidence . Facts within the meaning of Section 359 No. 5 StPO are concrete events in the past or present that are accessible to evidence . Proof is admissible if the aim of this is acquittal or the application of a milder criminal law. A resumption for the purpose of a more lenient assessment of the sentence using the same criminal law is excluded according to Section 363 . However, this does not include changes to legal norms or case law. Factual and legal errors cannot justify the application, even if they are obvious (according to the Federal Court of Justice in the retrial of the Weltbühne trial ). New facts are those which the court did not take into account in the main hearing, regardless of whether the opportunity existed. In Germany there are only around 90 readmissions per year, with over 800,000 legally settled criminal cases in the same period.
Readmission to the disadvantage of the accused
Under the strict conditions of Section 362 No. 1–4 StPO, retrial to the disadvantage of the accused is also possible. As in the case of retrial in favor of the convicted person, paragraphs 1–3 relate to cases in which the judgment may be based on a false certificate or a false testimony by a witness or expert or a criminal breach of judicial duty. In addition, according to Section 4, the reopening to the disadvantage of the defendant can also be based on a subsequent credible confession by the defendant.
Insofar as a resumption according to § 359 No. 1–3 or § 362 No. 1–3 StPO due to a criminal offense ( forgery , perjury , undecided false statement , false expert opinion, perversion of justice , acceptance of benefits or bribery ) is possible, it is only permissible if a final conviction has been issued for this act or if criminal proceedings cannot be initiated or carried out for reasons other than lack of evidence, Section 364 of the Code of Criminal Procedure.
The request for reopening can be made in writing by a defense counsel or a lawyer or by the convicted person himself for the record of the office of the court whose judgment is being contested or which is responsible for the reopening according to § 140a Courts Constitution Act ; if the convicted person dies, spouses, parents, grandparents, children or siblings are entitled to apply, Section 366 ( 2) and Section 361 ( 2) of the Code of Criminal Procedure. A right of application also the prosecutor, private and civil party and the confiscation involved . The application for reopening must state the legal reason for the reopening and the evidence. The competent court checks this in the so-called addition procedure (admissibility check ). If the application is inadmissible (e.g. non-signature by the lawyer, the fine is too low), the reopening will be rejected. Otherwise an approval decision is issued. In the subsequent so-called probation process , the merits of the reopening application is checked. (Possible reasons are listed in § 359 StPO)
The application for resumption will be rejected as unfounded without an oral hearing if the allegations contained therein have not been sufficiently confirmed ( Section 370 (1) StPO). If the court comes to the conclusion that the application is well founded, it shall order the reopening of the proceedings and the renewal of the main hearing by means of the retrial . As a rule, a new main hearing now follows before the competent retrial court. However, the court can, with the consent of the public prosecutor's office, immediately acquit the convicted person without a new main hearing if there is sufficient evidence. Otherwise the case will be reopened. However, the court may not change the type and amount of the judgment to the detriment of the convicted person if the resumption has been requested in his favor (prohibition of deterioration reformatio in peius ).
The resumption of administrative offense proceedings is permissible via Section 85 (1) OWiG in conjunction with Section 359 to Section 373a StPO. The resumption of administrative offenses is only permitted with a fine of € 250 or more. ( § 85 Abs. 2 Nr. 1 OWiG) A resumption after 3 years of legal force is also inadmissible ( § 85 Abs. 2 Nr. 2 OWiG).
For the administrative process, Section 153 VwGO refers to the reopening regulations for civil proceedings.
The validity of an administrative act can be broken not only by withdrawal and revocation by the administration itself, but also by " taking up the procedure again" according to § 51 VwVfG at the request of the person concerned. In contrast to judgments, a new factual or legal situation or new evidence is sufficient. The person concerned can only invoke these reasons for reopening, however, if he was unable to do so in the previous proceedings through no gross negligence. In addition, he must observe a period of three months from becoming aware of the reason for reopening.
The authority has two options when it comes to deciding whether to take it up again: it can issue a repeated ruling or a second ruling.
If the authority refuses to take it up again, it issues a repeated ruling. This makes a (new) factual decision only to the extent that reasons for a reopening are denied. (Only) to this extent, the repeated ruling can be challenged with an objection and, if applicable, a lawsuit.
If, on the other hand, the authority takes up the procedure again, a second decision is issued with which not only a positive decision on the reopening application is made, but in particular a new decision on the matter is made. This new decision can be challenged like an initial decision.
Administrative and criminal administrative proceedings
The authority must grant a party application to resume proceedings if no legal remedy is (no longer) admissible against a decision that ended a proceedings and
- the decision was brought about by forgery of documents, false statements or any other criminal offense or was obtained by fraud in some other way ("fraudulent act") or
- new facts or evidence emerge which - through no fault of the parties - were not asserted during the proceedings and would probably have resulted in a different content of the notification ("novelty") or
- the decision was dependent on a preliminary question on which the competent authority (or the court) subsequently decided differently ("preliminary question offense")
Regarding the " fact of innovation", it should be noted: The new facts or evidence must emerge , that is, they must have already existed during the original proceedings ("nova reperta"); it does not help if they only emerged after the proceedings ("nova producta ").
An application for reopening must be submitted within two weeks of the moment the applicant learned that there was a reason for reopening, but no later than three years after the original decision was issued.
The authority can also ex officio order a resumption if one of the three above-mentioned conditions is met. If three years have passed since the original decision was issued, it is only allowed to do so if there is a “fraudulent act”.
In administrative criminal proceedings, discontinued proceedings may only be resumed within the time limit for prosecution (one year from the offense).
The application for readmission must be submitted to the authority of first instance. The decision on this is a matter for the authority that issued the decision in the last instance (if an Independent Administrative Senate has made a decision, it is entitled to decide on the reopening).
In the decision on the approval (or ruling) of the reopening, it must be stated which authority has to restart the proceedings at which stage, unless a new decision can be issued immediately.
An appeal can be filed against the rejection of a reopening application. A separate appeal is not possible against the approval (or official order) of a readmission; only the newly issued decision, which in turn finalizes the proceedings, can be appealed against (this may be considered in proceedings with several conflicting parties).
Sections 69 and 70 of the General Administrative Procedure Act 1991.
- Max Alsberg : Miscarriage of Justice and Resumption , Berlin 1913.
- Klaus Marxen / Frank Tiemann: The reopening in criminal cases. Müller, Jur. Verl., Heidelberg 1993, ISBN 3-8114-5593-1 .
- Gerhard Strate : The defender in the resumption , StV 1999, p. 228-235.
- Robert Walter , Rudolf Thienel: The Austrian administrative procedural laws . Manz Verlag, Vienna 2008, ISBN 978-3-214-03255-5 .
- Robert Walter, Heinz Mayer: Outline of the Austrian administrative procedural law. Verlag Manz, Vienna 2003, ISBN 978-3-214-18434-6 .
- Johannes Hengstschläger, David Leeb: Commentary on the General Administrative Procedure Act. 4th volume, Manz Verlag, Vienna 2009, ISBN 978-3-214-00173-5 .
- Gerhard Strate : The Sleep of the Righteous - How the defense lawyers deal with the resumption (2006)
- Thomas Schröder: Lecture “Impositions of the Basic Law - Impunity despite new DNA evidence as a result of the ban on double punishment?” On YouTube
- ↑ 2 BvR 93/07 (paragraph 36)
- ↑ BGHSt 39, 75, 79
- ↑ Sabine Rückert: Lies that one likes to believe
- ^ Bernhard Kramer: Basic Concepts of the Law of Criminal Procedure. Investigation and Procedure , 7th, revised edition, Kohlhammer, Stuttgart 2009, Rn 356 .
- ↑ BVerwG 7 C 3.08 Judgment of December 11, 2008 on the distinction between repeated rulings and second rulings