Free work (criminal law)
The free labor ( Art. 293 3 EC Penal Code) is a criminal-law instrument to avoid the enforcement of custodial sentences . People who have been fined but are unable to pay can do free work as an alternative.
General
The fine is the most frequently used criminal sanction in the Federal Republic of Germany. Approx. 80% of all penalties are fines (approx. 20% imprisonment). If the person is unable to pay the fine, there is a risk of alternative imprisonment (substitute imprisonment). This transformation can be avoided by performing so-called free labor . This was unpaid work that may not serve commercial purposes (Art. 293 EG StGB). It is therefore usually provided in non-profit and municipal institutions (e.g. maintenance of green spaces, social institutions, etc.).
Freelance work was first included in the penal code in the Weimar Republic. In practice, however, it was only implemented in the Federal Republic of Germany in the 1980s. In the 1990s it experienced a nationwide boom and is now installed across Germany. In recent years, the number of procedures in which freelance work is done has declined, while the number of enforced fines has remained relatively the same:
| 2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | |
|---|---|---|---|---|---|---|---|---|
| enforced fines | 604,327 | 593.258 | 583,864 | 594.226 | 595.483 | 597,000 | 583,437 | 581.394 |
| Procedures in which free work was done | 38,601 | 38.009 | 32,500 | 35,441 | 32,500 | 30,553 | 26,973 | 22,869 |
| daily rates repaid through freelance work | 1,327,609 | 1,284,601 | 1,054,495 | 1,138,808 | 1,102,061 | 1,028,404 | 913,498 | 793.837 |
(Source: Destatis (2019): Fachserie 10 Reihe 2.6 Public Prosecutor's Offices, 2018, Tab.1.1)
Procedure
The exact procedure for applying for and performing free work is regulated by the federal states through ordinances on the avoidance of the execution of substitute custodial sentences through free work (in Bavaria via the grace order). These regulate the procedure (usually) as follows:
The prerequisite is the irrecoverability of the fine, not necessarily the insolvency of the convicted person. The decisive authority is not the court, but the responsible public prosecutor's office . An application for freelance work must be submitted to this. The free work can only be done if the public prosecutor has approved it. The procedures for selecting a recognized job vary across Germany. In some cases, the public prosecutor's office commissions judicial assistance or independent agencies to arrange an assignment and to monitor the service - in some cases this is done directly via the public prosecutor's office. The free work should be done quickly. For example, if people are unemployed, 30 hours per week are possible. Working at the weekend is also possible for working people.
No wages are paid for free work. To offset his costs, expenses (e.g. travel costs) can be reimbursed (Section 1 (3) TVO Berlin). While doing free work, unemployed people are still available to the labor market, i. H. there is still an entitlement to unemployment benefit. Freelance work constitutes “no employment relationship within the meaning of labor law and no employment relationship within the meaning of social insurance” (Art. 293 (2) EG StGB), i. H. no benefits for unemployment or pension insurance are provided. The regulations on occupational safety are "applied mutatis mutandis". Accident insurance is in place during employment.
Free work can be ended at any time by paying the (remaining) fine.
In the event of unexcused absenteeism and other violations, the public prosecutor's office can revoke the permit for free work and order the execution of the substitute custodial sentence. The hours worked will be taken into account.
How many hours are there to work?
The legislature has left it to the state governments to organize free labor. The starting point is the number of daily rates specified in the judgment (penalty order). This is converted into working hours. Different regulations have arisen in Germany:
- a daily fine = four hours of free work: Bremen and Baden-Württemberg
- a daily fine = five hours of free work: Hamburg and Saxony
- a daily fine = six hours of free work: other federal states
These hourly rates can be deviated from in detail: B. apply to work on the weekend or to people who cannot work six hours a day due to health restrictions (e.g. § 5 TVO Bln).
In some federal states it is possible to work freely while a substitute prison sentence is being carried out. The term of detention is then reduced by the repaid daily rates.
State legal provisions
literature
- Nicole Bögelein, André Ernst, Frank Neubacher: Avoiding substitute imprisonment. Evaluation of judicial detention avoidance measures in North Rhine-Westphalia . Ed .: Cologne writings on criminology and criminal policy. tape 17 . Nomos, Baden-Baden 2014.
- 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) .
- Frieder Dünkel: Community Service - What works? In: André Kuhn, Pierre Margot, Marcelo F. Aebi, Christian Schwarzenegger, Andreas Donatsch and Daniel Jositsch (eds.): Criminology, criminal policy and criminal law from an international perspective. Festschrift for Martin Killias on his 65th birthday. Bern 2013, pp. 839–860.
- Wolfgang Feuerhelm: Position and organization of non-profit work in criminal law. Historical, dogmatic and systematic aspects of an outpatient sanction. Wiesbaden 1997.
- Gabriele Kawamura-Reindl, Richard Reindl: Charitable work instead of punishment . Freiburg im Breisgau 2010.
- Frank Wilde: When poverty becomes a punishment. The free, non-profit work in the current sanction practice . In: Neue Kriminalpolitik, 29 (2) 2017, pp. 205–219.
Individual evidence
- ↑ Frank Wilde: Poverty and Punishment. On the aggravating effect of poverty in German criminal law . Springer VS, Wiesbaden 2016, p. 199 ff . ( springer.com ).
- ^ Publications in the field of courts . Federal Statistical Office (Destatis). Archived from the original on February 16, 2018. Retrieved April 12, 2019.
- ↑ Gnadenordnung on gesetze-bayern.de
- ^ TVO Berlin
- ^ Judicial assistance Berlin: Leaflet: Implementation of free work. 2010, accessed February 16, 2018 .
- ^ Legal Gazette of the Free Hanseatic City of Bremen: Ordinance on the repayment of bad fines through community service . No. 104 , December 6, 2013.
- ↑ justiz.baden-wuerttemberg.de
- ↑ landesrecht-hamburg.de
- ↑ revosax.sachsen.de
- ↑ TVO Bln
- ↑ Senate Department for Justice and Consumer Protection Berlin: Presentation of the “Day by Day” pilot project: For the first time, work instead of punishment is also possible within prison. 2015, accessed February 16, 2018 .
- ↑ Ordinance on the repayment of bad fines through community service
- ↑ NRW: Ordinance on the repayment of irrecoverable fines through free work
- ↑ Ordinance of the Saxon State Ministry of Justice and for Europe on the prevention of the execution of a substitute custodial sentence through work
