Has new evidence, new witnesses or a new alibi emerged in your case? Take the opportunity to file a motion for retrial. If the court approves the motion, it means the original decision will be overturned and a new criminal trial will be held. In this article, we’ll look at exactly when you can file a motion and how. And we’ll also tell you how to defend yourself if the court denies your motion.
Appeals are divided into ordinary and extraordinary appeals. Ordinary appeals can be used if you are dissatisfied with the decision of the court at first instance. These include an appeal against a conviction, a complaint against an order and a resistance against a criminal order.
Tip: When you can get a criminal warrant and how to appeal is covered in another article.
Extraordinary appeals are directed against a final decision of the court. This includes an appeal against a final decision of the Court of Appeal on grounds specified in the Act. It also includes a complaint for breach of the law. This can only be lodged by the Minister of Justice with the Supreme Court if he or she considers that a final decision has infringed the law. And the final extraordinary remedy is a retrial, which is the focus of this article.
A retrial is an extraordinary remedy that allows a final decision to be reviewed if new facts or evidence come to light that, by themselves or in conjunction with evidence previously adduced, could lead to a different decision on the case. This instrument is intended to remedy situations where a final decision may have been influenced by unknown or newly discovered information. A retrial is possible in administrative, civil and criminal proceedings or in proceedings before the Constitutional Court.
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Criminal proceedings can be reopened if new evidence or facts come to light. However, this does not mean that every new piece of evidence is grounds for a retrial. The new evidence or fact is always considered in the context of the whole case and the final, final decision. Thus, there must be some likelihood that the new evidence or facts could lead to a different decision.
Such new evidence and facts most often include:
The other two grounds for retrial include situations where the law enforcement authorities, i.e. the police, prosecutor or judge , have breached their duty in the criminal proceedings through conduct that constituted a criminal offence. Or, furthermore, where the Constitutional Court has annulled the relevant regulation or part thereof.
Tip: What can be used as evidence in court? Find out in the next article.
The application may be filed with the court that decided at first instance within three months of the discovery of new facts (the so-called subjective time limit), but no later than three years after the original decision became final (the so-called objective time limit).
The law allows only one exception to these time limits. This is in the event that the decision on which the decision to which the retrial relates is based is annulled in another proceeding (e.g. a criminal judgment, a decision on an offence, etc.). In this case, the action may be brought within three months of the annulment of the related decision. In this case, the objective time limit of three years does not apply.
The application may be lodged by the convicted person, public prosecutors and persons who have the right to appeal. The public prosecutor is the only one who has the right to file an application for a retrial against the convicted person. However, this cannot be done in situations where:
Tip: Don’t file on your own, but consult an experienced attorney about the entire process. At our firm, an attorney with more than 10 years of experience in criminal law will evaluate your case and then prepare your motion.
The court accepts the application and examines whether the formalities are met, and then conducts a preliminary inquiry to determine whether the new facts or evidence have the potential to change the original decision. The court decides on the application for a retrial in open court. The application may either be rejected or accepted.
If the application is allowed, it shall set aside the original decision, either in whole or in part. Once the retrial is granted, a new main trial is opened, which is essentially a new hearing of the whole case. In the new trial, all the original and new evidence is taken. The court again hears the witnesses, the defendant and examines all the evidence presented. On the basis of the evidence taken, the court makes a new decision. This may uphold the original conviction or may lead to a change in sentence.
If the court denies your motion for retrial, you have the option of filing a complaint with suspensive effect. This must be lodged with the authority which made the contested order within three days of notification or service of the order. The complaint may be lodged in writing, orally on the record or electronically.
The authority which issued the order shall decide on the complaint only in the case of ‘self-medication’, which means that it shall uphold the complaint in full. In all other cases, the superior authority designated by the Code of Criminal Procedure decides.
The complaint shall be decided in the form of an order. In it, the complaint may be dismissed on substantive or formal grounds, or the superior authority may annul the contested order and either decide the matter again itself or order the authority against whose decision the complaint is directed to hear and decide the matter again.
Tip: Read more about when to defend a criminal complaint in our article.
A retrial is an important extraordinary remedy that allows a final decision to be reviewed on the basis of new evidence or facts. This process is essential to ensure justice and to remedy cases where the original decision may have been influenced by unknown or newly discovered information. For a retrial to be successful, the new evidence or facts must have the potential to change the original decision. Strict time limits and formalities ensure that this remedy is not abused but serves to correct genuine miscarriages of justice.
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