GER: Application for Reinstatement – No Success for Inconsistent Argumentation

Aug 2, 2024 Benn-Ibler Rechtsanwälte

The German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) was asked to decide on the admissibility of an application to reopen a case. If a plaintiff instructs their lawyer to file an application for reinstatement on the grounds that the plaintiff did not know that such an application must also be substantiated, this is inconsistent. Therefore, it will not be possible to re-apply.

In the case in question, a man had been sentenced to a total of six years’ imprisonment. He had been convicted of twelve counts of drug trafficking and lodged an appeal against the sentence. However, even the reduced sentence handed down by the appellate court did not satisfy him; therefore he lodged an appeal through his former defence counsel, again in due form and time. However, he failed to submit a statement of reasons in due time in accordance with Section 345(1) of the German Code of Criminal Procedure (Strafprozessordnung, hereinafter StPO). The regional court therefore dismissed the appeal as inadmissible under Section 346(1) of the StPO. Before the deadline for the statement of reasons had expired, the defendant, through his new counsel, applied for reinstatement of his previous status. However, the application failed.

On the grounds of inconsistency, the BGH dismissed the application.

The defendant had claimed on the one hand that he had instructed his first lawyer to file the application and the statement of grounds for appeal, but on the other hand he stated that he had not been aware of the fact that a statement of grounds for appeal was required at all. Such contradictory statements are not sufficient proof that the defendant was not at fault for the failure to comply with the deadline.

Furthermore, the defence had not provided any credible evidence to support its arguments.

It is true that his new counsel has submitted a legal declaration to this effect. However, in the circumstances, this is not sufficient to meet the requirements for establishing credibility. The reason for this is that, in the light of the duty of truthfulness, a sworn statement can only be sufficient if it can be concluded with a sufficient degree of certainty that the description of the events is entirely based on his own perception. However, the applicant’s new counsel cannot vouch for the correctness of the former counsel’s statement concerning grounds for appeal based only on personal perception.

BGH 5 StR 225/24 (2 July 2024)