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

The StPO provides several routes for reopening proceedings. Section 353 StPO concerns reopening in favour of a convicted person after a final judgment. Section 352 StPO governs reopening of certain discontinued proceedings against the accused. Section 355 StPO concerns a final acquittal and refers to the grounds in Section 352(1).

An appeal and a plea of nullity challenge a judgment before it becomes final. Sections 352 and 355 StPO address different outcomes: discontinuation or a final acquittal. Reopening in favour under Section 353 StPO requires its own statutory ground, such as new facts or evidence or a false evidentiary basis.

No rigid application deadline is provided for reopening in favour under Section 353 StPO. An application may be made even after the sentence has been fully served. After the convicted person’s death, close relatives may apply to restore the person’s good name, subject to the statutory conditions.

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.

A final acquittal and a discontinuation are different outcomes. After an acquittal, Section 355 StPO allows the prosecution or a private prosecutor to apply for reopening to the defendant’s detriment only on the grounds in Section 352(1). Section 355 does not add a requirement of a strong suspicion of a serious crime.

Section 352(1) requires that the offence has not become time-barred. It lists a discontinuation brought about by forgery, false testimony, bribery or another criminal act (no. 1), and a later confession or new facts or evidence that appear suitable to suggest a conviction under Section 210(1) StPO (no. 2). The discontinuation described in no. 1 remains distinct from an acquittal.

Section 352 StPO applies directly to certain discontinued proceedings: those closed by court order or by a withdrawal from prosecution that is not merely provisional under Chapter 11. Under Section 352(1), the prosecution may apply to reopen the proceedings in these cases. The provision excludes continuation of the investigation under Sections 193, 195 and 196 StPO. Under Section 352(2), a private prosecutor may apply only for a discontinuation under Section 215(2) StPO.

For a specific application, check how the earlier proceedings ended, the ground relied on and limitation. The statute of limitations may prevent renewed prosecution. The official wording is available in RIS for Section 352 StPO and Section 355 StPO.

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.