Term and Nature of Deterioration
The Term Deterioration (also: Reformatio in peius, Latin for ‘deterioration’) describes in German law the worsening of the legal position of a party as a result of judicial or administrative appeal proceedings compared to the prior decision. Deterioration refers to a decision that goes beyond the previously defined extent and is less favorable for the appellant than the challenged decision. This issue is especially significant in civil procedure law, criminal procedure law, and administrative law, and is shaped both by judicial practice and statutory regulations.
Historical Background
The initial concept of deterioration can already be found in Roman procedural law, in which the principle was enshrined that a worsening may not occur against the sole party bringing the appeal (‘reformatio in peius ultra petita partium non licet’). This principle was later adopted and further developed in the continental European legal system to ensure legal certainty and protection of legitimate expectations in modern legal practice.
Areas of Application in German Law
Civil Procedure Law
Principle of the Prohibition of Deterioration
Under German civil procedure law, pursuant to § 308 of the Code of Civil Procedure (ZPO), the so-called principle of party disposition applies. This states that the court may not exceed the subject matter of the dispute in its decision. As a result, in appeal proceedings a deterioration (reformatio in peius) is generally not permitted: The appellate court may not amend the challenged decision to the disadvantage of the sole appellant.Exception: If the opposing party has also filed an appeal (cross-appeal), the prohibition of deterioration does not apply.
Significance for Appeal and Revision
In appeal and revision proceedings, deterioration is prevented if no appeal has been lodged by the other party. The prohibition of deterioration serves to protect the appellant’s confidence that bringing an appeal will not result in a worse outcome.
Criminal Procedure Law
In criminal proceedings, the prohibition of deterioration is set out in § 331 of the Code of Criminal Procedure (StPO):
- If only the defendant or their defense counsel has lodged an appeal against a verdict, the appellate court may not impose a more severe legal consequence on the defendant in the new judgment than in the challenged judgment.
- The same applies to revision: the court of revision may not bring about a deterioration, unless an appeal has also been filed by the public prosecutor’s office.
Exceptions may occur if the public prosecutor’s office has also filed an appeal. In this case, a comprehensive review and, where appropriate, a change to the disadvantage of the defendant is possible.
Administrative Law
There is also a prohibition of deterioration in administrative court proceedings:
- If only one party lodges an appeal, a worsening of that party’s legal position is not permissible.
- However, if the opposing party has also filed an appeal or declared a cross-appeal, there is no prohibition of deterioration.
In addition, the Administrative Procedure Act (VwVfG) makes it clear in § 48 subsection 1 that benefits in revocation or withdrawal proceedings can only be revoked or modified under certain conditions.
Legal Policy Justification and Functions
The prohibition of deterioration within the framework of deterioration serves to protect reliance on the validity of judicial decisions. It is intended to prevent the affected party from being put in a worse position by taking legal action than would be the case if they had not appealed. The regulation promotes legal certainty, reduces the risk of appeals, and creates a balanced relationship between legal protection and procedural fairness.
Exceptions to the Prohibition of Deterioration
Certain constellations allow for deviations from the general prohibition of deterioration:
- Filing of appeals by the opposing party or the public prosecutor’s office: If an appeal is lodged by both the “affected” party and the opposing side, the court may also amend the decision to the detriment of the appellant.
- Correction of Legal Errors: In cases of serious errors (e.g., objective unlawfulness), a deterioration may be permissible to a certain extent if provided for by law.
- Material Law Specifics: In tax law, the tax authority may decide to the detriment of the taxpayer during an objection proceeding if it has previously informed them (see § 367 (2) sentence 2 Fiscal Code / AO).
Practical Impact and Significance
The regulation of deterioration forms a fundamental pillar of the German appellate system. It makes it easier for parties to seek review of court or administrative decisions without fearing that they will be placed in a worse position after lodging an appeal. The boundaries and exceptions of deterioration must always be carefully observed in appellate proceedings to protect the rights of parties in terms of procedural fairness.
International Connections
Similar principles designed to protect against procedural deterioration due to appeals can also be found in other countries, such as Swiss or Austrian law. Under European procedural law, the principle is associated with the right to a fair trial under Art. 6 ECHR.
References and Further Legal Provisions
- Code of Civil Procedure (ZPO) § 308, § 528
- Code of Criminal Procedure (StPO) § 331
- Administrative Procedure Act (VwVfG), § 48, § 49
- Fiscal Code (AO), § 367 subsection 2
- Commentaries in: Zöller, ZPO; Meyer-Goßner, StPO; Kopp/Schenke, VwGO
Note: The above overview of the term “deterioration” (reformatio in peius) describes the core legal aspects of the term in the German legal system and offers opportunities for further research into its understanding and practical application.
Frequently Asked Questions
When is deterioration permissible in judicial proceedings?
In court proceedings, deterioration (also called “reformatio in peius”) is generally only permissible if the corresponding appeal has been brought by the public prosecutor’s office or, in civil law, by the opposing party. In criminal law, the prohibition of deterioration under § 331 (1) StPO is key: If a judgment is appealed solely in favor of the defendant (for example, only by the defendant themselves), the new judgment may not amend the previous judgment to their detriment. There is an exception only if the public prosecutor’s office or the private accessory prosecutor has also lodged an appeal to the detriment of the defendant. The prohibition of deterioration thus safeguards the expectation that bringing one’s own appeal will not result in a worse legal position. There are similar provisions in civil law (§ 308 ZPO), ensuring that the court does not exceed the applications made or decide to the detriment of the appellant in appellate proceedings if there is no counterclaim from the opposing party.
What exceptions are there to the prohibition of deterioration?
The prohibition of deterioration is not without exception. For example, in criminal proceedings, it does not apply if the appeal is also lodged by other parties (such as the public prosecutor) or is expressly justified to the detriment of the defendant. A special rule applies to juvenile criminal proceedings (§ 55 JGG), where a deviation from the principle is possible under certain conditions. In administrative offences proceedings (§ 79 (3) OWiG) or in administrative law, there are specific regulations that shape the principle differently depending on the level of appeal and form of remedy. Additionally, factual deterioration may be permissible in individual cases, for example if there is a change in the legal assessment which does not have an immediate but rather an indirect adverse effect, provided that there is no explicit prohibition against it.
Does the prohibition of deterioration also apply in appeal and revision proceedings?
Yes, the prohibition of deterioration applies both in appeal and in revision proceedings. In both instances, the court may not worsen the appellant’s legal position if the appeal was lodged exclusively in their favor. In appeals, this means that the new judgment cannot impose a higher penalty or harsher measures. In revision proceedings, factual deterioration is generally excluded, though there are specificities regarding the review of formal and substantive errors and possible remittal to the lower court. Compliance with the prohibition of deterioration is strictly monitored so as not to undermine the right to appeal.
What significance does the prohibition of deterioration have in practice?
The prohibition of deterioration protects appellants, especially defendants, from obtaining a worse legal position by lodging an appeal. This fosters confidence in the justice system and prevents so-called ‘path deprivation’—that is, forgoing an appeal out of fear of a worse outcome. In practice, this means that defense counsel and attorneys can confidently advise their clients to exercise their right of appeal without risk of deterioration, provided the appeal is lodged solely in the client’s favor. Conversely, prosecutors and accessory prosecutors seeking a harsher penalty must file their own appeal.
How is it determined in practice whether deterioration has occurred?
Whether deterioration is present in a specific case is determined by the court taking into account the original judgment and the legal consequences applied for and actually imposed in the appeal proceedings. The decisive criterion is the so-called ‘frame of comparison’: Deterioration occurs if the new judgment—in terms of sentence, ancillary consequences, or other legal effects—is less favorable to the appellant than the former judgment. Indirect disadvantages, such as a less favorable legal assessment or more severe ancillary consequences, may also be considered deterioration. The assessment focuses on the operative part and the actual impact of the new judgment.
What are the legal consequences of a violation of the prohibition of deterioration?
If a court violates the prohibition of deterioration, this generally leads to an absolute ground for revision (§ 337 StPO). On appeal, the judgment must be set aside because the requirement of a fair trial and the appellant’s protection of legitimate expectations have been violated. Case law regards deterioration in breach of the prohibition of deterioration as a ‘material procedural defect’ (§ 337 StPO). Such a judgment can and must be set aside on appeal by the affected party, after which the appellate instance must determine the consequences in a new, proper judgment.
Are there differences between criminal law and civil law in dealing with deterioration?
Yes, there are differences. While in criminal law the prohibition of deterioration is immediate and explicitly regulated (§ 331 StPO), in civil law similar protection is primarily provided via the so-called ‘procedural binding’ to the applications made (§ 308 ZPO): In appellate proceedings, the court may not exceed the applications of the parties or amend the decision to the detriment of the appellant, unless a cross-appeal or independent appeal by the opposing party exists. Administrative procedural law and administrative offences law also have their own rules, so details vary depending on the legal area. However, all have in common the tendency to protect parties from unjustified adverse changes as a result of their own appeal.
