Reopening criminal proceedings under Section 353 StPO: a new trial despite a final judgment

Reopening is an extraordinary remedy against a final judgment. It therefore presupposes that the ordinary remedies have already been exhausted or that the deadlines for them have expired. While appeal and plea of nullity challenge the judgment before it becomes final, reopening exceptionally breaks through the finality that has already taken effect.

Because finality is a high value, the conditions are narrow. Not every dissatisfaction with a judgment justifies a reopening. It requires one of the grounds named in the statute, above all new facts or evidence or proof that the judgment rests on false evidence.

One important advantage over the ordinary remedies: reopening in favour of the convicted person is not bound by any rigid deadline. It can be sought even after the sentence has been fully served, and after the death of the convicted person close relatives can file an application to restore the good name.

Reopening in favour of the convicted person is governed by Section 353 StPO. It comes into consideration above all on two grounds.

False or fraudulently obtained foundations (Section 353 no. 1 StPO). If the judgment rests on a forged document, a false statement, an incorrect expert opinion, or if it was brought about by bribery or another criminal act, reopening is possible. What is decisive is that this flawed piece of evidence was decisive for the finding of guilt.

New facts or evidence (Section 353 no. 2 StPO). If facts or evidence are brought forward that were unknown to the court when the judgment was delivered, the proceedings can be reopened. The requirement is that, alone or in connection with the evidence already taken, they appear suitable to justify an acquittal or a conviction under a milder criminal law.

Evidence is new if the court did not use it in the judgment. A merely different assessment of evidence already known is not enough. The court reviews the suitability of the new material strictly, which is why careful preparation matters.

Reopening must not be confused with the ordinary remedies. Appeal and plea of nullity are directed against a judgment that is not yet final. They must be filed shortly after the pronouncement of the judgment and are the first line of defence against a finding of guilt.

Only once these routes are exhausted or their deadlines have passed does reopening come into consideration as an extraordinary remedy. It is not a second attempt at assessing the evidence but requires an independent ground for reopening.

Alongside this stands the renewal of proceedings under Section 363a StPO. It targets violations of the European Convention on Human Rights and leads to a decision of the Supreme Court. Which of these routes is open in the individual case depends on the stage of the proceedings and on the defect asserted.

Reopening can exceptionally also take place to the detriment of an acquitted person. Section 355 StPO permits this only in narrowly limited cases, because reliance on a final acquittal is especially protected.

A reopening to the detriment may come into consideration, for example, where the acquittal was brought about by a criminal act such as a false statement or a forgery of documents. Under strict conditions, new facts can also establish a strong suspicion of a serious crime.

A timely defence against such an application is important. From a legal perspective, the first question is whether the high hurdles are met at all and whether the renewed prosecution is not already barred by the statute of limitations.

An application for reopening is decided by the court in a separate procedure governed by Sections 352 ff StPO. The application must set out the ground for reopening and the supporting evidence specifically.

If the reopening is granted, the proceedings revert to the earlier stage. Depending on the situation, a new main trial takes place in which guilt and sentence are decided again. Until then, the original judgment remains in force in principle.

The renewal under Section 363a StPO, by contrast, is decided by the Supreme Court. Because of the different routes and the partly strict deadlines, the choice of the right remedy should be made early and carefully.