Can family law decisions be challenged?

NRW Justice: The simple, immediate and further complaint in criminal proceedings

What is a complaint and what types does the law know?

A complaint is a legal remedy that can be lodged against decisions of the criminal court, as long as they are not judgments. The latter are to be contested with the appeal or the revision. Accordingly, decisions and orders of the court are contested with the complaint. Only in exceptional cases are cases provided in the law according to which subsidiary decisions in judgments can also be challenged with a complaint.

On the one hand, the complaint is directed against decisions that are inaccurate in the findings of fact, but it is also admissible against decisions that are legally incorrect. The appellate court, which has to rule on the appeal, therefore reviews the contested decision both factually and legally.

The law recognizes various forms of complaint. The "simple complaint" is not tied to a deadline. The "immediate complaint", on the other hand, is provided if, in the opinion of the legislature, a quick and final decision is required, so that this is also bound to a deadline. The * further complaint "is only a permissible legal remedy in very specific cases expressly stated in the law.

The appeal does not have the effect that the contested decision cannot be enforced. In contrast to the appeal and appeal, the complaint lacks the suspensive effect.

Who decides on the complaint?

Since the complaint is lodged with the court whose decision is being contested, it also has the option of redressing it itself if it considers the complaint to be well founded. However, this does not apply to the immediate complaint. Here only the next higher court, the appellate court, can remedy the complaint. For this purpose, the matter is submitted to the appellate court for decision through mediation by the public prosecutor.

The simple complaint

What is a simple complaint against?

The appeal is admissible against all decisions issued by the court in first instance or in the appellate instance and the orders of the chairman and the judge in the preliminary proceedings or a commissioned or requested judge.

Only a few decisions cannot be challenged, although these cases are expressly mentioned in the law. Furthermore, the law places a restriction on the decisions that immediately precede the judgment. These are decisions that serve to prepare for the main hearing, such as the setting of dates, or the continuation of the hearing (such as the connection of two proceedings). These decisions cannot be challenged separately with the complaint, but only as part of an appeal against the judgment.

Who can lodge a complaint?

Any party involved in the proceedings who is affected by the contested decision can lodge a complaint. A witness or an expert can therefore also be considered as a complainant if a decision of the court infringes his rights.

Examples:

  • a witness can lodge a complaint against a decision imposing a fine on him
  • Defense counsel can lodge a complaint if he is not allowed to have unhindered contact with his client
  • the owner of an item can lodge a complaint if the item is confiscated for no legal reason
  • the person on whom the costs of criminal proceedings have been imposed by decision can file a complaint if the costs exceed EUR 200.00 (the law makes this restriction for the purpose of minimizing proceedings)

How does the complaint process work?

The complaint must be lodged with the court whose decision is to be contested, in writing or for the record of the registry. A fax is sufficient for this. Filing a complaint by telephone is not permitted. A justification for the complaint is not required, but can be submitted. A deadline does not apply to simple complaints (as opposed to immediate complaints). However, there is an indirect time limit due to the fact that the complaint can become irrelevant as the proceedings progress.

If the court whose decision was contested considers the appeal to be well founded, it must remedy the situation, i. H. change your own decision accordingly. If, on the other hand, it does not consider the appeal to be well founded, it must submit the matter to the appellate court within three days.

The appellate court decides on the complaint without an oral hearing by means of a resolution, whereby it has regularly given the public prosecutor's office the opportunity to comment beforehand. The appellate court not only overturns a decision of the lower court that is deemed to be wrong, but makes the desired factual decision itself.

The immediate complaint

What is an immediate complaint against?

The law always provides for an immediate complaint as a legal remedy if a final decision appears necessary as quickly as possible. For these cases, the law provides the institute for immediate complaints, which can only be effectively lodged within a period of one week from the announcement of the contested decision. The law expressly stipulates for each individual case when such an immediate complaint can be lodged. Another peculiarity of the immediate complaint compared to the simple one is that the court whose decision is being contested cannot redress the complaint itself, even if it considers the complaint to be correct. The court must refer the matter to the appellate court for a decision. In addition, the statements made on the simple complaint apply to the procedure.

The further complaint

What is another complaint about?

In principle, a decision by the appellate court, i.e. the court that decided on the appeal, can no longer be contested. The law makes few exceptions to this. In those cases in which the decision of the appellate court concerns arrest or temporary placement, the so-called further appeal can be made. This also applies to an order for arrest in rem in accordance with Section 111b (2) of the Code of Criminal Procedure in conjunction with Section 111d of the Code of Criminal Procedure for an amount of more than 20,000 euros. There are no special features for the procedure and requirements for a further complaint, but the same principles as for a simple complaint.