SECTION VII - Appellate Jurisdiction And Procedure

Author:K. Neumann
Profession:Sir
Pages:151
 
FREE EXCERPT
  1. If no notice of appeal is given, the judgment becomes operative, i.e. it obtains legal validity (Rechtskraft). The word Rechtskraft has a double meaning, one procedural (formell) and one substantive (materiel). A judgment has formelle Rechtskraft when it can no longer be challenged, either because the time for presenting an appeal has elapsed or because both parties have expressly renounced their right of appeal. It can then be enforced. A judgment attains materielle Rechtskraft by having settled the case in question once and for all; on the principle ne bis in idem, the same offence cannot thereafter become the object of a new trial; nor can new proceedings be instituted on the same facts with a view to their interpretation from a new legal aspect. A person acquitted of larceny cannot be prosecuted for embezzlement on the same facts; a person sentenced for a series of connected offences (fortgesetzte Handlung) or for a perpetual offence (Dauerverbrechen) cannot be tried for a new offence of the same kind if it appears that the newly discovered offence was committed at the same time as the acts for which he has already been sentenced.

  2. REMEDIES Remedies against judgments (Rechtsmittel) are of two kinds; ordinary and extraordinary. Ordinary appeals comprise those based on facts and law, called Berufungen; those based on law only, called Revisionen, and formal protests (Beschwerden). All these forms of appeal lie where a judgment has not attained Rechtskraft. The extraordinary appeal on the other hand is in the nature of a motion for a new trial made after a judgment has been final and conclusive.

  3. Berufung is the form of appeal on facts and law made from judgment of an Amtsrichter or Schbffengericht with the object of securing a review

    of the case in all its aspects by the Strafkammer. The Strafkammer consists of one professional judge as president and two laymen (so-called (little) kleine Strafkammer) if the Berufung is made from a judgment of the Amtsrichter, it consists of three professional judges including the president and two laymen (so called (big) grosse Strafkammer) if the Berufung is made against judgment of the Schiffengericht (section 76. GVG). Notice of appeal must be given within one week after judgment has been pronounced, a further week being allowed for the submission of the grounds of appeal (Berufungsbegriindung). If the Strafkammer holds that the formalities prescribed for the appeal have not been complied with...

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