A final judgment is intended to bring a criminal trial to a definitive end. For a person who has been wrongly convicted, this finality is hard to bear. The reopening procedure (Wiederaufnahmeverfahren) therefore opens up a limited route to have a concluded case examined by a court once again.
Reopening is not, however, a substitute for a missed appeal on facts and law (Berufung) or appeal on points of law (Revision). Anyone who merely presents the same arguments again will generally not obtain a new trial. What is required is one of the statutory grounds for reopening set out in § 359 StPO.
New facts and evidence
Of particular importance is § 359 Nr. 5 StPO. Under this provision, new facts or evidence can support a reopening if, alone or in conjunction with the earlier evidence, they make possible an acquittal, a lesser punishment under a more lenient criminal statute or a substantially different decision on measures of reform and prevention (Maßregeln). A reopening that merely seeks a different sentence under the same criminal statute, or a reduction of sentence on grounds of diminished criminal responsibility, is excluded by § 363 StPO.
“New” in this context generally means that the circumstance or evidence in question was not known to the trial court when it made its decision. It may well have been known to the convicted person earlier. A subsequently discovered message, a previously unknown witness or new scientific findings can therefore be significant.
However, it is not sufficient merely to propose a different interpretation of evidence that has already been assessed. The new aspect must be specifically identified and its significance for the evidential result at the time must be explained. Nor does a new expert opinion automatically open the way to a reopening if it merely evaluates a known basis differently. The Federal Court of Justice (BGH) confirmed in June 2026 that the assessment of whether an opinion constitutes new and suitable evidence must be based on the findings and the evidential basis of the original judgment (BGH, order of 9 June 2026 – StB 20/26).
Further grounds for reopening
The law mentions, among other things, forged documents, certain false statements and criminal breaches of official duty by judges. A violation of the Convention established by the European Court of Human Rights (ECtHR) can also make a reopening possible if the judgment is based on it. Additional evidential requirements apply to some grounds.
How does the procedure work?
First, the court examines the admissibility of the application. Under § 366 StPO, the application must state the statutory ground and the evidence relied on. It must be submitted in a document signed by defence counsel or a lawyer, or recorded by the court registry. A simple informal letter is not sufficient. If admissibility is affirmed, the court then examines whether the asserted grounds for reopening are substantiated. Only then can the reopening be ordered, normally followed by a new trial. In the cases provided for by § 371 StPO, an acquittal without a new trial is possible.
These stages call for different arguments. The application itself must already make clear the connection between the new material and the more favourable result sought. A mere collection of possible doubts leaves the real work to the court and frequently fails to meet the requirements.
The application does not automatically halt the enforcement of the sentence (§ 360 StPO). The court may, however, order a postponement or an interruption of enforcement. Where appropriate, a separate application must be made for this. An immediate complaint (sofortige Beschwerde) may be available against decisions rejecting the application. A sentence that has already been served, or even the death of the convicted person, does not generally exclude an application (§ 361 StPO).
Is there a risk of a heavier sentence?
Where a reopening is applied for exclusively in favour of the convicted person, the prohibition on a change for the worse (Verschlechterungsverbot) under § 373 Abs. 2 StPO generally applies. However, the law provides for exceptions, in particular in the case of certain forms of committal to an institution. The risk must therefore be examined before the application is filed, on the basis of the specific sanctions.
Reopening after a final acquittal
A reopening to the detriment of a person who has been finally acquitted is permissible only in the narrow cases listed in § 362 Nr. 1 to 4 StPO, for example where a forged document or false testimony influenced the judgment, where a judge committed a criminal breach of official duty, or where the acquitted person later makes a credible confession. The extension introduced in 2021 as § 362 Nr. 5 StPO, which would have allowed a reopening on the basis of new incriminating facts or evidence in cases of certain most serious offences, was declared void by the Federal Constitutional Court (BVerfG) in its judgment of 31 October 2023 (2 BvR 900/22) because it infringes the constitutional prohibition of double jeopardy. The provision is still printed in the statute with an official note that it is void, but it is not applicable law. A final acquittal therefore cannot be reopened merely because new evidence has emerged.
Reopening requires perseverance and a precise knowledge of the earlier proceedings. A realistic assessment begins with the complete judgment, the files and the question of which new evidence can actually change the earlier result.