HANSE STRAFRECHT
Emergency
A stack of paper on a table by the window in daylight.

Appeals and enforcement

Appeal on fact and law or appeal on points of law in German criminal law: which time limit runs after the judgment

Author
Rechtsanwältin Virginia Elisabeth von Burgsdorff
Published
Last updated
9 minute read
9 minute read

One week runs after the judgment.

Appeal on fact and law (German: Berufung) and appeal on points of law are the remedies against a judgment in criminal law, and both are to be lodged within one week of the pronouncement: the appeal on fact and law with the court of first instance (§ 314 Abs. 1 StPO), the appeal on points of law with the court whose judgment is being challenged (§ 341 Abs. 1 StPO).

The period begins with the pronouncement, not with service of the written reasons for the judgment. Anyone who waits for those misses it.

01

The one week period: when it starts running and when it ends

Both remedies can be lodged in a record taken by the court office or in writing (§ 314 Abs. 1, § 341 Abs. 1 StPO). No grounds are needed for that; a declaration that the remedy is being lodged suffices.

An exception is governed by § 314 Abs. 2 und § 341 Abs. 2 StPO: where the pronouncement took place without the defendant, the period begins for them with service, unless in the cases named there a defence lawyer with authority to represent them was present.

It ends at the end of the day of the final week that corresponds to the day on which it began; where the end falls on a Sunday, a general public holiday or a Saturday, it ends at the end of the next working day (§ 43 Abs. 1 und 2 StPO).

Instruction about challenging the decision, about time limits and about forms is to be given when the decision is announced (§ 35a StPO).

That the written reasons for the judgment come later is not an oversight: § 275 Abs. 1 StPO gives the court a period of its own for them, which ends no later than five weeks after the pronouncement and is extended where the main hearing has lasted longer. The remedy therefore has to be lodged before the reasons are available.

02

What applies where the time limit has been missed?

A missed time limit does not without more mean that the matter is over. Where someone was prevented through no fault of their own from observing a time limit, reinstatement of the time limit is to be granted on application (§ 44 Satz 1 StPO); the failure also counts as being without fault where instruction was not given (§ 44 Satz 2 StPO).

This route is itself tightly limited in time. The application is to be made within one week of the removal of the obstacle before the court at which the time limit would have had to be observed; the facts must be substantiated, and within that period the remedy must be made good (§ 45 Abs. 1 und 2 StPO).

Whether the requirements are met is for the court to decide; nobody can give an assurance about it. It should be examined at once.

03

Appeal on fact and law: the case is heard afresh

An appeal on fact and law lies against the judgments of the Strafrichter, the judge sitting alone, and of the Schöffengericht, the court made up of one judge and two lay judges (§ 312 StPO).

It is decided by the Strafkammer, a criminal division, of the Landgericht, the regional court (§ 74 Abs. 3 GVG), sitting as the small criminal division with the presiding judge and two lay judges (§ 76 Abs. 1 Satz 1 GVG).

An exception is governed by § 313 Abs. 1 StPO: in the case of a fine of not more than fifteen daily units or of a regulatory fine the appeal on fact and law is admissible only where it is accepted. That happens where it is not manifestly unfounded (§ 313 Abs. 2 StPO).

Grounds for the appeal on fact and law can be given within a further week after the expiry of the period for lodging it or, where the judgment had not been served by then, after service of the judgment (§ 317 StPO).

It can be limited to particular points of complaint; where that is not done, the whole content of the judgment counts as being challenged (§ 318 StPO).

Two points are important. The prohibition of a change for the worse: where only the defendant, or the public prosecution office in their favour, or their statutory representative has lodged an appeal on fact and law, the judgment may not be altered to their disadvantage in the kind or the level of the legal consequences (§ 331 Abs. 1 StPO).

And the duty to attend: where neither the defendant nor a defence lawyer with authority to represent them appears at the start of the hearing, and the absence is not sufficiently excused, the court rejects the appeal on fact and law without hearing the matter (§ 329 Abs. 1 Satz 1 StPO).

04

Appeal on points of law in criminal law: what is examined is the judgment, not the facts

An appeal on points of law lies against the judgments of the criminal divisions and of the Schwurgerichte, the divisions sitting for particular serious offences, and against judgments of the Oberlandesgerichte at first instance (§ 333 StPO).

A judgment against which an appeal on fact and law is admissible can be challenged by way of an appeal on points of law instead; the statute calls this a Sprungrevision (§ 335 Abs. 1 StPO).

It is decided by the court that would be called upon to decide if the appeal on points of law had been lodged after an appeal on fact and law had been conducted (§ 335 Abs. 2 StPO).

An appeal on points of law is not conducted with new witnesses.

The appellant has to declare to what extent they challenge the judgment and to give reasons for their applications; the reasons must show whether a procedural provision or another rule of law is said to have been infringed, and in the first case the facts containing the defect must be stated (§ 344 Abs. 1 und 2 StPO).

A period of its own and a form of its own apply to the grounds. They are to be submitted no later than one month after the expiry of the period for lodging the appeal on points of law (§ 345 Abs. 1 Satz 1 StPO).

The period is extended by one month where the judgment was placed on the file later than twenty-one weeks after the pronouncement, and by a further month where that took more than thirty-five weeks (§ 345 Abs. 1 Satz 2 StPO).

Where the judgment had not yet been served when the period for lodging expired, the period begins with service (§ 345 Abs. 1 Satz 3 StPO).

The form is set out in § 345 Abs. 2 StPO: on the part of the defendant the grounds can be submitted only in a document signed by a defence lawyer or another lawyer, or in a record taken by the court office. A letter written and signed by the person themselves does not meet that form.

For the lodging of the appeal on points of law that does not apply (§ 341 Abs. 1 StPO).

The court hearing the appeal on points of law does not always decide after an oral hearing.

It can reject the appeal on points of law as inadmissible by order (§ 349 Abs. 1 StPO), and on a reasoned application by the public prosecution office it can do so as well where it unanimously considers the appeal on points of law to be manifestly unfounded (§ 349 Abs. 2 StPO).

The application is communicated to the appellant, who can submit a written reply within two weeks (§ 349 Abs. 3 StPO). Conversely, the judgment can be set aside where the court unanimously considers an appeal on points of law lodged in favour of the defendant to be well founded (§ 349 Abs. 4 StPO).

Where it succeeds, the court decides the matter itself in the cases of § 354 Abs. 1 StPO, and otherwise refers the case back (§ 354 Abs. 2 StPO); the prohibition of a change for the worse applies then as well (§ 358 Abs. 2 Satz 1 StPO).

A remedy is not an option without consequences: the costs of a remedy that has been withdrawn or lodged without success fall on the person who lodged it (§ 473 Abs. 1 Satz 1 StPO).

05

Which court decides in Hamburg?

For judgments of the Amtsgericht Hamburg, the local court, the route runs by way of the appeal on fact and law to the Landgericht Hamburg (§ 74 Abs. 3 GVG).

The appeal on points of law against those judgments of the Strafrichter that cannot be challenged by way of an appeal on fact and law, and against appeal judgments of the criminal divisions, is decided by the Oberlandesgericht (§ 121 Abs. 1 Nr. 1 Buchstaben an und b GVG), in Hamburg the Hanseatisches Oberlandesgericht.

Against judgments of the Landgerichte at first instance the Bundesgerichtshof, the Federal Court of Justice, decides (§ 135 Abs. 1 GVG).

06

And where neither is open any longer: the reopening of proceedings

Where the judgment has become final, the Wiederaufnahme, the reopening of the proceedings, remains within narrow limits. § 359 Nr. 5 StPO requires new facts or evidence that are capable of founding an acquittal, a lesser punishment under a more lenient criminal provision, or a substantially different decision on a measure of correction and prevention. New means: not known to the court at the time.

One clarification on reopening to the disadvantage of the convicted person: § 362 StPO continues to list a number 5 in the published text. The Bundesverfassungsgericht, the Federal Constitutional Court, declared it incompatible with Art. 103 Abs. 3 GG and void by judgment of 31 October 2023 (2 BvR 900/22). It is not law in force.

07

Frequently asked questions about appeal on fact and law and appeal on points of law

How much time do I have after the judgment? One week from the pronouncement (§ 314 Abs. 1 StPO for the appeal on fact and law, § 341 Abs. 1 StPO for the appeal on points of law). Where the pronouncement was made in your absence, it begins with service on the requirements of § 314 Abs. 2 und des § 341 Abs. 2 StPO.

It is calculated under § 43 StPO.

Do I have to decide between appeal on fact and law and appeal on points of law at once? For the lodging it is enough to declare that a remedy is being lodged.

Grounds for the appeal on fact and law are given under § 317 StPO within a further week, and for the appeal on points of law under § 345 Abs. 1 StPO within one month. Which remedy is open also depends on which court decided (§§ 312, 333, 335 StPO).

Can the judgment turn out worse after my remedy? Where the defendant alone, or the public prosecution office in their favour, or their statutory representative has lodged the remedy, the judgment may not be altered to their disadvantage in the kind or the level of the legal consequences (§ 331 Abs. 1 StPO, after a referral back § 358 Abs. 2 Satz 1 StPO).

Where the public prosecution office has lodged a remedy to the defendant's disadvantage, that protection does not apply.

I have missed the one week period. Is everything over? Not necessarily. § 44 StPO provides for reinstatement of the time limit where someone was prevented through no fault of their own.

The application is to be made within one week of the removal of the obstacle, the facts must be substantiated, and within that period the remedy must be made good (§ 45 Abs. 1 und 2 StPO). Whether the requirements are met is for the court to decide.

08

How things go on

Whether a remedy comes into consideration is decided by the reasons for the judgment and by the record of the hearing. Neither is available after the pronouncement, but the period is already running. That is why the time limit is secured first and the content is decided on afterwards. How a defence works in doing that is described on our page on general criminal law.

This information is general in nature and does not replace advice on an individual case. It reflects the statutory texts as checked on 10 August 2026.

If you would like to discuss your case, you can reach the office by telephone or by email.

Contact
Provisions referred to

The provisions mentioned in this article, each with a link to the official German text.