Replacement custodial sentence
In the 20th century, fines became the decisive punitive sanction in Germany. For over 40 years around 80% of all penalties have been pronounced as fines. If the fine cannot be collected, the alternative custodial sentence will be enforced. In the wording it says:
“Instead of an irrecoverable fine, there is imprisonment. One day's imprisonment corresponds to a daily rate . The minimum of the substitute custodial sentence is one day. "( StGB])
The substitute custodial sentence (EFS) makes it possible to enforce a sentence even with those people from whom the fine cannot be recovered. It thus ensures the effectiveness of the fine, on which today's penal system is essentially based. In this regard, the criminal lawyer Herbert Tröndle coined the term that the EFS is the "backbone of the fine". At the same time, the EFS is highly controversial with this function, because according to the guilt principle, the punishment must not exceed the level of guilt. The imprisonment is a more serious evil than the fine. While the court considered a fine to be appropriate in determining the sentence, the harder custodial sentence is only subsequently enforced because of the poor economic situation of the person.
For this reason, the criminal law debate has long been concerned with the question of how this disadvantage can be prevented and the EFS avoided. However, it can be stated that despite this discussion and numerous criminal policy initiatives, the enforcement of the EFS has risen continuously over the past decades and has thus also become a financial burden on the judicial budget (see below). According to a survey by the WDR magazine Monitor (broadcast in January 2018), 200 million euros are spent on enforcing EFS every year.
In 2018, a federal-state working group advised on further options for alternatives to the execution of EFS.
The prison statistics provide information about the number of people who are serving a substitute custodial sentence in German penal systems on certain reference dates (stock figures). The stock figures fluctuate depending on the federal state and the overall economic situation. In the last 15 years, however, they have increased significantly.
The following is the number of prisoners for the reference date March 31 of the respective year:
|The number of prisoners on March 31.||Total imprisonment||including replacement custodial sentences||Percentage ownership %||EFS men||Proportion of men||EFS women||Proportion of women|
|2010||52,868||4,348||8th %||4,006||92%||342||8th %|
(Source: Destatis, inventory of prisoners and those in custody in German penal institutions, various years. Note: Imprisonment here without youth custody and preventive detention)
The incarceration rate in the new federal states tends to be higher: old federal states 10% of the prison sentences, new federal states: 13%. Current overviews can be found at Cornel and Wilde.
The inventory figures indicate how many people are serving an EFS on the reference date.
Approaches / affected persons
In 2002, 65,000 people began serving a replacement prison sentence. There are no newer figures.
How many EFS are served per year in Germany cannot be derived from the official statistics. The additions due to EFS have not been statistically recorded since 2003. So an important criminal policy issue was pushed into the dark field . Since the EFS tend to be short sentences, the number is now estimated to be ten times the stock numbers. At present (as of 2018), a number of around 50,000 EFS executed per year can be assumed. In 2015 there were 94,000 first admissions in German prisons - this includes the EFS. This would mean that half of the prison sentences in Germany are unpaid fines.
A statistical analysis of all fines served in North Rhine-Westphalia in 2012 showed that the most frequently people who were fined for stealth transport (so-called dodging ) served the EFS (every 7th). Of those convicted of tax offenses, it was only 43 each.
Extensive figures on Hamburg can be found in the citizenship printed paper 21/18936 of November 15, 2019, under the title "Substitute custodial sentences - what is the current status?" a small question of the FDP parliamentary group answered.
Fines are imposed by the court. The majority of this takes the form of a written penalty order (i.e. without a personal hearing). Once the penalty is final, it is the prosecution's responsibility to promote and monitor the payment of the fines. For this purpose, coercive measures can be taken against persons who do not pay the fine (e.g. bailiffs). The measures can be omitted if it is to be expected that they will not lead to any success “in the foreseeable future” ( (2) of the Code of Criminal Procedure). If the public prosecutor's office determines that the fine is irrecoverable, it can order the execution of the substitute ( Paragraphs 1 and 2 StPO). The person concerned receives a written request to present himself in the penal institution (summons to commence prison), for which he is given a period of two weeks. If there is no response to the summons, the public prosecutor's office can issue an arrest warrant and have the person arrested by the police.
The basis for the duration of the EFS is the number of daily rates specified in the judgment. If a fine of 30 daily rates has been imposed, the person faces a 30-day EFS.
The EFS is carried out as a prison sentence . There are no privileges in the penal code for the EFS. Often there are special departments in which the EFS in particular are enforced. But there is no claim to this. For example, "fare dodgers", depending on where there is space, are also accommodated in the specially secured institutions. The EFS can also be served in open execution . However, it cannot (according to current case law) be suspended on probation . A half or 2/3 discharge is also not possible.
However, it is possible to pay the remaining fine at any time. This results in immediate discharge.
The legal nature of the EFS is therefore not clear: On the one hand, it is a “real punishment” and not just a means of preventing the collection of the fine. On the other hand, it is not an “independent penalty, but dependent on the primary fine until the last day of its execution”.
The execution of the substitute custodial sentence can be averted by
- the payment of the fine (also after entering custody and also by other persons) or
- the performance of freelance work (Art. 293 EGStGB): Depending on the federal state, four to six hours of unpaid community service are to be performed for each daily rate. The free work must be applied for with the public prosecutor's office with proof of the irrecoverability of the fine and approved by them. It usually takes place before imprisonment. In some federal states, however, it is also possible to do free work while in detention. Then two daily rates are repaid at the same time (day-by-day).
The EFS will not be enforced if the enforcement represents “hardship” for the convicted ( StPO). This is a postponement of enforcement, but it is interpreted very narrowly. An example of this: The execution of the EFS would prevent the postponement of custodial sentences according to BtMG and the person's opportunities for therapy.
EFS outside Germany
The situation in Austria is basically similar, with one important difference: In the event of non-payment of a fine, two daily rates are replaced by one day's imprisonment ( StGB ). A substitute custodial sentence can also be ordered for an administrative offense if the imposed fine cannot be enforced.(3 )
In Switzerland, analogous to the regulation in Germany, a daily fine is equivalent to one day's imprisonment. If community service is imposed as a penalty, it can also be converted into a substitute custodial sentence if it is not performed. One day of imprisonment corresponds to four hours of community service. It is not possible to serve a substitute custodial sentence as charitable work.
In the case of bad fines, France only knew enforcement detention under civil law, but this could only be ordered "if there was no insolvency". On December 16, 2017, an amendment to Art. 131-25 of the Penal Code introduced a regulation similar to the German substitute freedom penalty.
Germany adopted the substitute imprisonment system from Sweden. However, anyone who does not pay their fine has to be brought before the judge again. The latter must strictly check whether there is an unwillingness to pay or inability to pay. In the latter case, no EFS may be ordered. As a result, the EFS has in fact been abolished in Sweden, but also in Denmark.
Numerous scientists and practitioners have spoken out in favor of abolishing the EFS over the decades. The main obstacle to abolition is the popular belief that without the EFS the fine would collapse ("the backbone of the fine"). This is likely to be an everyday theory "which calls for a controlled experiment by the legislature".
- Nicole Bögelein, André Ernst, Frank Neubacher : Avoiding substitute imprisonment. Evaluation of judicial detention avoidance measures in North Rhine-Westphalia (= Kölner Schriften zur Kriminologie und Kriminalpolitik. Vol. 17). Nomos, Baden-Baden 2014, ISBN 978-3-8487-0865-9 .
- Frieder Dünkel , Jens Scheel: Avoiding substitute custodial sentences through charitable work: the “Auseg” project in Mecklenburg-Western Pomerania. Results of an empirical study (= writings on the penal system, juvenile criminal law and criminology. Vol. 23). Forum Verlag Godesberg, Mönchengladbach 2006, ISBN 3-936999-10-4 (reading sample online) .
- Gisella Müller-Foti, Frank J. Robertz, Sebastian Schildbach, R. Wickenhäuser: Punishing the disoriented? Medical and criminological implications of incarcerating patients with mental disorders for failing to pay a fine. In: International Journal of Prisoner Health. Vol. 3, No. 2, 2007, doi : 10.1080 / 17449200701321365 . , pp. 87-97,
- Manfred Seebode : Problematic substitute imprisonment. In: Wolfgang Feuerhelm, Hans-Dieter Schwind, Michael Bock (eds.): Festschrift for Alexander Böhm on his 70th birthday on June 14, 1999. Walter de Gruyter, Berlin et al. 1999, ISBN 3-11-015696-2 , p. 519-552, doi : 10.1515 / 9783110908107.519 .
- Wolfgang Heinz: The criminal sanction system and the sanctioning practice in Germany 1882 - 2012. Accessed on February 9, 2018 .
- Herbert Tröndle: The fine in the new penalty system . In: Monthly for German Law . tape 26 , no. 6 , p. 461-468 .
- Federal Court of Justice: Order of December 7, 2016 - 1 StR 358/16 - Rn.10. Retrieved February 9, 2018 .
- Frank Wilde: Poverty and punishment. On the aggravating effect of poverty in German criminal law . Springer VS, Wiesbaden 2016, ISBN 978-3-658-11485-5 .
- Ralph Hötte, Achim Pollmeier: Replacement custodial sentences: unjust, senseless and expensive. In: Monitor . WDR, January 9, 2018, accessed February 9, 2018 .
- 87th Conference of Justice Ministers: Item II.11 Examination of alternative sanction options. Retrieved February 9, 2018 .
- Heinz Cornel: New punitivity by reducing the suspension rate in the German penal system . Forum Verlag Godesberg, Mönchengladbach 2013, ISBN 978-3-942865-12-8 .
- Frida Thurm: Substitute liberty punishment: money or jail. In: The time . June 2, 2016, accessed February 8, 2020 .
- See Second Periodical Safety Report , 2006, p. 569 (PDF; 12.0 MB) ( Memento from August 11, 2016 in the Internet Archive ).
- Michael Walter: Activity report of the prison commissioner for the state of North Rhine-Westphalia. 2012, accessed February 9, 2018 .
- Destatis: Existence of prisoners and those in custody in German correctional facilities. 2017, accessed February 9, 2018 .
- Frank Neubacher et al: Avoidance of substitute imprisonment. Evaluation of judicial detention avoidance measures in North Rhine-Westphalia (= Kölner Schriften zur Kriminologie und Kriminalpolitik . Volume 17). Nomos Verlag, Baden-Baden 2014, ISBN 978-3-8487-0865-9 , p. 29.
- Hamburg Citizenship, printed matter: Replacement custodial sentences - what is the current status? Accessed January 2, 2020 .
- Helmut Geiter: Bitter execution of the mildest main sentence of the StGB. Experience in prison reduction activities . In: Frank Neubacher and Michael Kubnik (eds.): Memorial for Michael Walter . Duncker & Humblot, Berlin 2014, p. 564 .
- OLG Oldenburg: Decision of April 24, 2006 - 1 Ws 234/06. Retrieved February 9, 2018 .
- Federal Constitutional Court: Decision of August 24, 2006 - 2 BvR 1552/06. Retrieved February 9, 2018 .
- Senate Department for Justice and Consumer Protection Berlin: Presentation of the pilot project “Day by Day”. 2015, accessed February 9, 2018 .
- OLG Karlsruhe: Decision of April 6, 2006 Az. 2 VAs 37/05. Retrieved February 9, 2018 .
- StGB Art. 79a
- Nomos Commentary Albrecht § 43 StGB marginal number 3
- Frieder Dünkel, Forum Strafvollzug 2011, 143/44
- cf. the documents in Johannes Feest, memorial for Edda Weßlau, Berlin 2016, 494
- as already Wilfried Hassemer, Introduction to the basics of criminal law, 2nd edition, 1990, 229