Fine proceedings

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Process of fine proceedings

In German law, the fine procedure is a procedure for the prosecution (punishment) of administrative offenses . The procedure is regulated in the Law on Administrative Offenses (OWiG).

Basics

The fine procedure is roughly divided into three sections.

  • In the preliminary proceedings, the first section, the administrative authority determines the offense and punishes with the fine .
  • The second section is the interim procedure in which the administrative authority independently decides on an objection to the administrative fine and, if necessary, then transfers the matter to the public prosecutor's office .
  • Finally, the judicial process is the third section. Here decides in the first instance, the District Court and legal complaints , the Court of Appeal . These three sections are further subdivided.

Pursue with fine proceedings (also known as fine proceedings law )

Violations of different laws.

Fine proceedings are possible, for example, according to the Act on Administrative Offenses, the Road Traffic Act , the Road Traffic Regulations , the Road Traffic Licensing Regulations , the Vehicle Licensing Regulations , the Youth Protection Act , the State Treaty on Youth Media Protection , the Prostitute Protection Act , the Act to Combat Undeclared Work and Illegal Employment , in passport, ID cards and regulatory reporting , immigration law , association and assembly , arms and explosives law , postal, telecommunications and transport , data protection , labor and social law , commercial law , licensing law , water rights , animal welfare , environmental protection , nature conservation and forestry , hunting and fishing rights .

For the summary proceedings rules generally apply with few exceptions laws on the criminal proceedings , including the provisions of the Code of Criminal Procedure (CCP), the Judicature Act and the Juvenile Courts Act .

A fine procedure can include a fine between 5 euros and a few million euros as well as additional sanctions . A driving ban or an entry in the register of fitness to drive at the Federal Motor Transport Authority are possible under road traffic law . Other laws provide for the confiscation of “objects to which the criminal offense or administrative offense relates”. Furthermore, the confiscation of objects "that have been used or intended for their (the regulatory offense) inspection or preparation" is possible.

The person against whom fine proceedings are directed is referred to as the person concerned ; fine proceedings are not permitted against children.

The preliminary proceedings

Administrative procedure

According to Sections 53 to 64 of the OWiG (analogous to the criminal investigation procedure of the StA of Sections 158 to 169a of the Code of Criminal Procedure), the factual and locally responsible administrative authority , partly with the help of the police , determines the facts that give rise to the presumption of an administrative offense (OWi) . This has to be done in such a way that the circumstances in life are determined comprehensively and according to reality. Both exonerating and incriminating facts are to be collected by the administrative authority.

If the matter has been sufficiently clarified and the suspicion of an administrative offense has been substantiated, the administrative authority decides on the further course of action within the framework of the principle of opportunity . Pursuant to Section 47 of the OWiG, the administrative authority can refrain from imposing a penalty, issue a warning with or without a fine, or initiate the actual fine procedure , in accordance with Section 56 OWiG . The administrative authority also takes into account possible obstacles to persecution such as statute of limitations or ne bis in idem .

The administrative procedure does not depend on applications, but can take place on the basis of a report either to the administrative authority or to the police. The notification is only a possible impetus for a procedure, there is no legal claim to the punishment of a reported OWi by the administrative authority. Pursuant to Section 46 (1) OWiG in conjunction with Section 171 of the Code of Criminal Procedure, the reporting person should be informed of the discontinuation or non-initiation of the proceedings, although he cannot take action against this decision in accordance with Section 46 (3) sentence 3 OWiG.

After the matter has been clarified to such an extent that a reasonable initial suspicion arises, the administrative authority informs the person concerned of the opening of the fine proceedings. According to Section 31 (3) sentence 1 OWiG, the relevant point in time for any limitation periods is the point in time at which the act that constitutes an administrative offense has ended. The date of the introductory note in the fine file , however, is irrelevant for the limitation period. Due to the principle of opportunity, the authority is not obliged to initiate administrative fine proceedings, even if there is a specific suspicion. It is at your discretion to decide whether the initiation of the fine proceedings is feasible. The scope of the proceedings is not specified and is determined by the authority independently, also based on the seriousness of the allegations against the parties involved. In the case of mass OWis, such as traffic offenses, a completely different investigation effort is carried out than in the case of serious violations of environmental protection laws.

The fine procedure can also be broken down into partial procedures and these can be punished or discontinued individually. Analogous to § 154a StPO, this is even possible within a procedural act .
In principle, the person concerned does not learn anything about the initiation of a procedure. The administrative authority can inform the person concerned about this, but does not have to. Exceptions to this are in the respective special laws, such as B. § 410 Abs. 1 Nr. 6 in connection with § 397 Abs. 3 AO or § 98 AufenthG . Failure to notify the parties involved is a procedural error here.

As a rule, however, the person concerned is given the opportunity to be heard at this point in time before a final decision is made about the issuing of a fine. Usually the person concerned is sent a hearing sheet on which they can express their views. However, it is up to the person concerned whether he wants to express himself. If he refuses to make any statement or does not answer within the response deadline set by the administrative authority, the administrative authority will decide on the basis of the files.

There is no legal remedy against the initiation of the proceedings and the person concerned has no legal right to information about the course of the proceedings or to be present at the taking of evidence.

Evidence

The evidence collected by the managing authority must be usable. In particular, the prohibitions on the use of evidence of the StPO are to be observed by the administrative authority. The OWiG does not define the administrative authority's means of knowledge in more detail. According to general doctrine, the evidence that can be used in the OWi procedure is limited to the formal evidence (witnesses, experts, documents, inspection, statements by the party involved) or strict evidence , since the decisions of the administrative authority must be legally valid.

Witnesses

Witnesses are people who can provide information about facts in connection with the OWi. These are both external events as well as internal knowledge of the witnesses themselves. The hearsay testimony is in accordance with Section 47 (1) OWiG in conjunction with Section 48  et seq. StPO permissible. The other provisions of the Code of Criminal Procedure on witnesses, the right to refuse to testify, summons etc. apply analogously.

expert

Anyone who, by means of special expertise, is helpful to the administrative authority in assessing the facts can be an expert. § 75 , § 80 StPO apply analogously. The expert can also only be involved in the main proceedings. A refusal of the expert due to the concern of bias is not possible for the party involved in the preliminary proceedings. An expert can also be a witness. The participation of an expert is mandatory in some laws (e.g. § 32 BtMG ). The expert can be a suitably qualified member of the administrative authority.

Certificates

Documents are all written documents with intellectual content. As a rule, the original should be included in the fine file. Technical records (e.g. from an automatic speed measurement system) are not documents, but objects of inspection. In practice, the difference is only of procedural importance in the main hearing.

Illusion

Visual inspection is the direct acquisition of knowledge by the administrative authority. Since the visual inspection is designed for direct sensory perception (e.g. smell of rotten meat during food controls , inspection of an accident site), this must be perceived by the person responsible. An inspection assistant can be sent out, who is then a witness. In practice, the warning procedure in particular is based almost exclusively on the immediate, spontaneous perception of the person making the decision (e.g. immediate punishment of traffic OWi by the observing police officer - the police must be authorized to do so by a legal regulation, here in the StVO or the immediate warning of violations of the obligation to keep dogs on leash by officials of the public order office). Recorded perceptions are put on file as documents.

Submissions by the person concerned

The admission of the person concerned serves as a constitutionally guaranteed legal hearing , as evidence and his defense. The statements of the person concerned can be made in writing. Verbal submissions are recorded and these minutes are put on file. The person concerned is not obliged to comment on the facts, but he must give his personal details on record. Before a possible interrogation, the person concerned must be informed about his rights to refuse to testify, appoint a defense counsel and bring in new evidence ( Section 136 (1) StPO), in accordance with Section 55 OWiG is sufficient to be heard. If this instruction is not given, there are prohibitions on the exploitation of his submissions. Silence on the part of the person concerned must not be exploited; partial silence on the part of the person concerned can be exploited.

Obtaining evidence

The administrative authority is responsible for obtaining evidence (so-called official investigation principle ). This can be obtained through administrative assistance , informal procurement via existing files, but also enforcement measures such as judicial search warrants .

According to Section 46 (3) OWiG, institutional accommodation, arrests ( Sections 112 et seq. StPO), provisional arrests ( Section 127 StPO), and the seizure of items that are subject to postal secrecy under Article 10 of the Basic Law are not part of OWi law valid measures to obtain evidence. No evidence applies. The provisional withdrawal of the driving license ( § 111a StPO), checkpoints ( § 111 StPO), trawling ( § 163d StPO), alerts for police observation ( § 163e StPO), temporary placement ( § 126a StPO), grid search ( §§ ) are also prohibited. 98a, 98b StPO) and undercover investigators ( §§ 110a to 110c StPO) etc. Coercive measures to collect a legally imposed fine do not fall under these prohibitions, as they do not serve to obtain evidence.

Physical interventions to obtain evidence ( § 81a StPO) are limited to minor interventions such as taking a blood sample to determine the blood alcohol content . A transfer of the person involved to take the blood sample is also permitted and does not constitute arrest.

Measures required to establish the identity of the person involved, but also of witnesses, are also permitted. As a rule, this is done by means of a photo ID , but also a short-term detention ( Section 163b (1) sentence 2 StPO), the transfer to the office to determine or check the information ( Section 163c StPO) and the search of the person and clothing on the Body surface ( § 102 StPO) are permissible if the identity has not already been determined otherwise.

All measures and interventions by the administrative authority are subject to the principle of proportionality . The production of photographic image and the loss of fingerprints ( § 81b CCP) are generally considered to be proportionate, more fingerprinting treatments such as gene analysis is not.

Evidence obtained contrary to the above-mentioned prohibitions, in particular without maintaining proportionality, is subject to the prohibition on the use of evidence .

Penalty notice

The administrative penalty notice is the central form of punishment in the OWi procedure. It is issued by the administrative authority after hearing the party concerned and assessing all the circumstances of the act. According to Section 2 (2) No. 2 VwVfG (exceptions to the scope of application), the notice of fines is not an administrative act within the meaning of Section 35 VwVfG. The legal remedy against the fine is regulated in the interim procedure (see below).

shape

The notice of the fine must be in writing in accordance with Section 66 and Section 51 (2) OWiG. A signature is not required for machine-generated letters, as long as the issuing body is clearly shown in the notice of the fine (computer printout for traffic offenses ).

Decree

The fine is issued by the responsible person in the locally and materially competent authority. The notice of the fine is deemed to have been issued if it is dated and included in the course of business. However, according to Section 51 OWiG, notification of the notification is not a prerequisite. If the notification is created automatically, the decree is in the printout and in the subsequent forwarding of the notification.

conditions

According to Section 66 (1) and (2) OWiG, the content of the fine notice requires the exact details of the person (natural or legal) of the person concerned and the secondary participants. Confusion must be ruled out. If a notification is addressed to several participants, the notification must also show which allegation relates to which participant. If a defense attorney has been appointed to the authority, this must be given with name and address (knowledge of the administrative authority required). The punished act must be stated as precisely as possible, stating the place and time of the commission. The statutory provisions that led to the issuance of the administrative fine are to be listed as well as in the case of several violations, stating § 19 and § 20 OWiG, whether it is a single offense or a majority of offenses .

For the description of the actual process, it is sufficient that the specific phase of life is clearly recognizable. If the description is insufficient, the fine is illegal but effective. The decision is null and void if the accused behavior can no longer be distinguished from other possibilities. This nullity cannot be cured by a notification of amendment in which more details are added. The degree of certainty of the allegations also depends on the severity of the allegations: the more serious the allegations are, the more precisely the act must be described.

If an act can be committed intentionally and negligently, the form of the commission must be communicated. In road traffic law, negligence is assumed if no information is given.

The evidence must also be identified. It is sufficient here to list the main pieces of evidence. If this evidence is persons (witnesses or experts), they must be given with their name and address.

The legal consequences (fine and side effects: e.g. forfeiture ) must be specified, including the relevant regulations.

The administrative authority has the parties involved in accordance with Section 66 (2) OWiG via its

In some special laws, additional instruction obligations are provided (e.g. § 33a BaWüJagdG on the duration of the hunting ban or § 25 Paragraph 8 StVG the beginning of a driving ban).

The decision on costs in accordance with Section 105 (1) OWiG in conjunction with Section 464 (1) and Section 465 of the Code of Criminal Procedure is the last compulsory part of the administrative fine. The person concerned always bears the costs.

A justification for the decision of the authority is expressly not required. In individual cases, however, it can be feasible to enable the parties involved to understand the decision of the administrative authority, because the aim of a notice of fines is always to change the behavior of the parties involved.

delivery

The notification of the fine must be sent to the person concerned in accordance with Section 51 (2) OWiG. In practice, this is usually done with a postal delivery document , the costs of which are also to be paid by the person concerned. The type of delivery is based on Section 51 Paragraph 1 Clause 1 OWiG in conjunction with Sections 3 to 6 VwZG or the relevant federal state law in the case of administrative fines. In the case of legal entities, delivery must be made to the person authorized to represent ( Section 51 (1) OWiG in conjunction with Section 7 (2) and (3) VwZG).

If a defense attorney has been appointed to the person concerned or if the power of attorney of the chosen defense attorney is in the files, it is sufficient to serve them according to Section 51 (3) sentence 1 OWiG.

The objection period begins at the time of delivery. If a notice of fines is mistakenly delivered twice, the later date of delivery counts as the start of the period ( Section 51 (4) OWiG).

Individual evidence

  1. ↑ BGH NJW 2002, 2260.
  2. ↑ BayOblG NZV 1998, 515.
  3. ↑ BGHSt 23, 336, 341/342 confusion of persons.
  4. ↑ OLG Celle VRS 97, 258.