DECISION
In the criminal case
against
xxx,
– Defense counsel: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen –
Regarding bodily harm
: here, an appeal against a failure to decide on costs.
The 1st Criminal Senate of the Higher Regional Court of Braunschweig decided on August 6, 2012:
Upon the immediate appeal of the acquitted person, the decision of the Göttingen Regional Court of 31 January 2012 is amended to the effect that the necessary expenses incurred by the acquitted person in the appeal proceedings are to be borne by the public treasury.
The costs of the appeal proceedings, including the necessary expenses incurred by the appellant in this respect, shall be borne by the state treasury.
REASONS
I.
By judgment of the Göttingen Local Court of July 4, 2011, the defendant was acquitted of the charge of bodily harm. The Göttingen Public Prosecutor's Office filed an appeal against this judgment on July 6, 2011, which it later designated as a formal appeal and withdrew on January 30, 2012. Subsequently, the Göttingen Regional Court, by order of January 31, 2012, ordered the costs of the appeal proceedings to be borne by the public treasury, but failed to make a decision regarding the necessary expenses of the acquitted defendant. The aforementioned order was not pronounced, but was sent – informally – to the acquitted defendant and his authorized defense counsel pursuant to a court order of January 31, 2012.
In a letter dated January 31, 2012, the defense attorney requested that fees and expenses also be set for the appeal proceedings. The district auditor at the Göttingen Regional Court took this as an opportunity to point out that there was no basic decision on costs regarding the acquitted defendant's claimed necessary expenses (for the appeal proceedings). Subsequently, in a letter dated June 21, 2012, the defense attorney filed an immediate appeal against the Göttingen Regional Court's decision of January 31, 2012. The district auditor considers the appeal inadmissible because it was filed late.
The Attorney General's Office, however, supports the complaint and has requested the appeal as requested.
II.
The immediate appeal is admissible. The Senate concurs with the Attorney General's Office, which justified its application as follows.
"Section 464 Paragraph 3 Sentence 1 of the Code of Criminal Procedure allows for immediate appeals even against independent decisions on costs and expenses (KG Berlin, decision of November 5, 1997, 5 Ws 665/97, juris with further references).".
The independent cost decision issued after the withdrawal of the appeal pursuant to Section 473 Paragraph 1 Sentence 1 of the German Code of Criminal Procedure (StPO) is also not subject to the restrictions of Section 464 Paragraph 3 Sentence 1 Half-Sentence 2 StPO, because the initial admissibility of the appeal against the main decision is not revoked by its withdrawal (cf. Berlin Higher Regional Court, Decision of July 5, 2007, 1 Ws 92/07, juris with further references). An appeal is "inadmissible" within the meaning of Section 464 Paragraph 3 Sentence 1 StPO only if—unlike in the present case—it is categorically inadmissible due to the nature of the decision or if the appellant is fundamentally not authorized to file the appeal (Berlin Higher Regional Court, ibid.). The fact that the acquitted person could not have challenged the main decision himself due to lack of standing does not preclude the admissibility of an immediate appeal against the cost decision (cf. Higher Regional Court of Hamm, decision of 19 May 2005, 3 Ws 212/05, juris; Meyer-Goßner, 55th edition, § 464, para. 19).
The admissibility requirement of Section 304 Paragraph 3 of the Code of Criminal Procedure is also met, as the value of the subject matter of the appeal exceeds €200.00.
The immediate appeal was also filed in a timely manner. The contested decision was neither pronounced pursuant to Section 35 Paragraph 1 of the Code of Criminal Procedure nor formally served pursuant to Section 35 Paragraph 2 Sentence 1 of the Code of Criminal Procedure. The time limit for filing the immediate appeal pursuant to Section 311 Paragraph 2 of the Code of Criminal Procedure has therefore not commenced (cf. Meyer-Goßner, loc. cit., Section 311, marginal note 2).
The immediate appeal also appears to be justified.
After the public prosecutor's office has withdrawn its appeal, the state treasury is not only required to bear the costs of this appeal (§ 473 para. 1 sentence 1 of the Code of Criminal Procedure), but also, pursuant to § 473 para. 2 sentence 1 of the Code of Criminal Procedure, the necessary expenses incurred by the acquitted person in the appeal proceedings.
The decision regarding the necessary expenses of the acquitted defendant, which the Göttingen Regional Court omitted in its decision of January 31, 2012, must be made subsequently. This is not precluded by the lack of possibility of remedying an initially omitted decision on expenses by judgment or order (cf. BGH NStZ-RR 1996, 352; Meyer-Goßner, loc. cit., § 464, para. 8 with further references), because in this case it is not a matter of a correction by the trial court, but rather a supplement within the framework of an immediate appeal (cf. OLG Hamm, decision of July 12, 2001, 2 Ws 141/01; Löwe-Rosenberg, StPO, 26th edition, § 464, para. 32)
It should only be added that the decision of the Göttingen Regional Court (decision of May 30, 2012 – 2 Qs 17/12), cited by the district auditor to support her dissenting opinion, does not pertain to the facts of the present case, but rather addresses the question of whether obviously incorrect, unintended, but nevertheless legally binding decisions on costs and expenses can still be corrected in the cost assessment proceedings. The aforementioned decision explicitly presupposes that such a correction is possible in the appeal proceedings and even expressly points this out.
III.
Since the appeal is therefore fully successful, the decision on costs (for the appeal proceedings) is based on a corresponding provision of Section 467 Paragraph 1 of the Code of Criminal Procedure.
