Explanation of the term Ersatzrevision
Die Ersatzrevision is a term from German procedural law which holds particular significance, especially in the context of criminal proceedings and administrative offences law. It describes a judicial remedy procedure granted under certain circumstances as a substitute for a regular remedy procedure that the affected party missed. The Ersatzrevision is central in cases where the original remedy could not be duly pursued due to an omission, faulty service, or other procedural impediments.
Legal basis for the Ersatzrevision
Historical development
The Ersatzrevision developed from the need to close gaps in legal protection arising from procedural errors or unintentional omissions by the affected party. It is not a general legal remedy, but rather a procedural compensatory measure to safeguard the rights of the parties during judicial review.
Statutory regulation
The explicit term “Ersatzrevision” is not directly found in statutory texts, but it nevertheless plays a role, particularly in criminal procedure (StPO) and proceedings for administrative offences (OWiG). The relevant provisions are primarily § 46 para. 1 OWiG in conjunction with §§ 341 ff., 346 ff., 349 ff. StPO. At its core, the concept concerns cases where, for example, an appeal or a legal complaint was not filed in time or not properly, and therefore the next higher instance provides for a review through the revision process.
Scope of application of the Ersatzrevision
Definition and purpose
The Ersatzrevision is understood as a subsequent revision that may be invoked when, due to a procedural error or inadequate protection of legal remedies, the affected person is left with no other means of review (particularly for legal errors). This often occurs when an appeal or legal complaint was missed because the person was prevented from lodging the remedy on time and without their own fault.
Practical cases of application
Ersatzrevision is primarily applied in the following scenarios:
- Unintentional failure to meet a deadline: When the deadline for filing an ordinary legal remedy (e.g., appeal) was missed without fault.
- Faulty service: When a judicial decision was not properly served, thereby preventing the affected person from accessing the legal remedy.
- Defects of authority: When a representative has filed a legal remedy without effective authorization and the person represented was unaware of this.
Procedure of the Ersatzrevision
Requirements
The following requirements must generally be met for the admissibility of the Ersatzrevision:
- Res judicata of the decision: The challenged decision has already become final.
- No fault of the affected party: The failure to lodge a regular legal remedy is not attributable to the affected party.
- Impossibility of regular restoration: Regular restoration of the legal remedy is excluded, e.g., because the deadline has expired and reinstatement is no longer possible.
- Justified claim for review: There is a legitimate interest in a review for legal errors.
Distinction: Reinstatement and other remedies
The Ersatzrevision must be distinguished from reinstatement into the previous state. While reinstatement enables an extension of the deadline after a failure, the Ersatzrevision typically only comes into effect when the decision has already become final and the regular path to meet the deadline is blocked.
Procedure of the Ersatzrevision process
The proceedings follow the provisions relating to the revision process. The applicant bears the burden of alleging and proving that the ordinary legal remedy was denied without fault. The reasoning and execution of the Ersatzrevision must conform in substance and form to those of the regular revision.
Legal effect of the Ersatzrevision
Scope of review
The scope of review of the Ersatzrevision is limited to the control of legal errors in the challenged decision. As with ordinary revision, there is no new instance of fact-finding. The court of revision reviews the judgment within the asserted grounds for revision for legal errors.
Legal consequences
If the revision is successful, the court of revision annuls the impugned decision in whole or in part and either refers the case back to the previous instance for a new hearing and decision or decides itself pursuant to § 354 StPO.
Significance and criticism
Significance for legal protection
The Ersatzrevision is an important instrument for safeguarding the right to be heard and ensuring a fair process. It fills a protection gap in those cases where, despite no personal fault, a person would have no further opportunity for appellate review.
Points of criticism
Typical points of criticism concern the sometimes restrictive formal requirements for asserting the Ersatzrevision as well as uncertainties in its scope of application, since its legal basis is not explicitly codified but rather based on case law and analogous application.
Literature and case law
For further in-depth study, reference is made to the relevant commentaries on the Code of Criminal Procedure and the Act on Administrative Offences, as well as to the seminal decisions of the Higher Regional Courts and the Federal Court of Justice, in which the application and scope of the Ersatzrevision have been clarified.
Summary
The Ersatzrevision constitutes an important corrective in German procedural law, aimed at ensuring the guarantee of legal recourse even in exceptional cases. It particularly ensures that, in situations where parties have lost their legal protection opportunities without fault of their own, a subsequent judicial review can still take place. Thus, it contributes to the effectiveness of legal protection and to substantive justice.
Frequently asked questions
What requirements must be met for an Ersatzrevision to be admissible?
For the admissibility of an Ersatzrevision, several specific legal requirements must be fulfilled. Firstly, the Ersatzrevision is an extraordinary remedy which is only considered if, after conclusion of a final judgment, new facts or evidence come to light which are capable of influencing the decision. These must be facts or evidence that the parties were unaware of, or could not have presented, without their own fault in the former proceedings. In civil proceedings, § 580 ZPO (Code of Civil Procedure) is particularly relevant, as it sets out the specific grounds for revision. There are also formal and deadline requirements, such as compliance with the one-month period for filing the motion after discovery of the new circumstances and the necessity of making the facts credible. Procedural errors from the original proceedings alone are not sufficient; what is decisive is the revelation of new, decision-relevant circumstances. In other types of proceedings, such as criminal or administrative law, there are specific requirements governed by the relevant statutory provisions.
Which court is competent in the case of an Ersatzrevision?
As a rule, the court of the last instance – that is, the court which rendered the judgment – is responsible for the decision on the Ersatzrevision. In civil proceedings, jurisdiction is determined pursuant to § 584 ZPO, so that the court whose decision is being challenged decides on the admission and merits of the Ersatzrevision. In criminal proceedings and public law, jurisdiction is determined by the relevant special provisions and individual laws. Filing an Ersatzrevision does not commence an entirely new proceeding; rather, it is a continuation of the concluded proceedings, in which the court examines whether, in light of the new facts or evidence, the previous judgment should stand or be set aside.
What time limits must be observed for lodging an Ersatzrevision?
Strict deadlines must be observed for the Ersatzrevision. In civil proceedings, the time limit for filing is governed by § 586 para. 1 ZPO and is generally one month from the time the party becomes aware of the ground for revision. Within this period, both the revision petition must be filed and the new facts or evidence credibly demonstrated. Missing the deadline usually leads to the inadmissibility of the application, unless reasons for reinstatement under § 233 ZPO are present. In criminal procedural law and administrative law, different deadlines and requirements may apply, as specified in the respective procedural codes.
What are the effects of lodging an Ersatzrevision on the original judgment?
Lodging the Ersatzrevision initially does not have a suspensive effect on the final original judgment. Enforcement remains permissible in principle, unless the court, in exceptional cases, temporarily suspends enforcement in accordance with the relevant provisions. Only if the court concludes in the context of the Ersatzrevision that the judgment should be set aside or amended does the Ersatzrevision have retroactive effect on the res judicata status and enforcement measures. Normally, however, the applicant initially has no legal protection against enforcement measures and must apply separately and justify suspension of enforcement.
Can formal legal errors also be asserted by means of Ersatzrevision?
No, the Ersatzrevision is generally not intended to challenge formal procedural errors from the original proceedings, unless these have led to a fraudulent judgment as a ground for reopening. Only new, decision-relevant facts or evidence that were unknown and unusable to the party in the original proceedings without fault can be introduced by way of Ersatzrevision. Procedural deficiencies, such as errors in the taking of evidence or incorrect application of law, should instead be challenged through ordinary remedies such as appeal or regular revision. Thus, the Ersatzrevision is not a “second-class remedy”, but a narrowly limited corrective procedure for exceptional cases.
What are the legal consequences if the Ersatzrevision is successful?
If the Ersatzrevision is successful, the court will set aside the impugned judgment in whole or in part, and generally decides the case anew itself, taking the new facts and evidence into account. This takes place according to the rules applicable to first instance or appellate proceedings, depending on which level the revision was lodged. The case may have to be reopened and completely reassessed, while taking into account the rights of third parties and public order. If measures have already been enforced under the old judgment, the parties are entitled to restoration. In criminal law, this can even result in an acquittal or a reduction of the sentence, if the judgment was based on the new grounds asserted.
