Fine (Germany)

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In criminal law , the fine is a punishment that can only be imposed by a judgment or by a penalty order in criminal proceedings . It is therefore of the civil compensation szahlungen, administrative fines , penalties , penalties or other filing systems to distinguish. It is also to be distinguished from the monetary requirement in the case of a termination of proceedings .

General

Warning sign with the threat of a 60 DM money road with reference to §368 in the Reich Criminal Code

The withdrawal of money and property is one of the oldest forms of punishment. For a long time, the monetary payment served as a kind of compensation and reparation for the injustice committed by the perpetrator and was paid directly to the injured party. In the modern age with the centralization of state power , the two aspects of “reparation” ( compensation under civil law ) and “punishment” were separated in many countries . Today the convicted pays the fine directly to the state, or more precisely: to the judicial budget of the respective federal state. The aim of the sanction is to restrict the person concerned for a certain period of time or to a certain extent in his ability to consume. This should give him a lesson and induce him to act in accordance with the law in the future (negative special prevention).

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). In 2019, fines were imposed in 567,243 proceedings. 80% of the convictions involved men. The fine is a milder sanction than imprisonment. The underlying offenses in 2019 were:

Offenses men women
Road traffic offenses 29% 23%
Fraud and infidelity 18% 30%
Theft and embezzlement 11% 20%
Offenses against physical integrity 7% 3%
Offenses under the Narcotics Act 9% 4%
an insult 4% 3%
Others 22% 17%

(Source: Destatis, criminal prosecution - Fachserie 10 Reihe 3 - 2019, table 3.3)

procedure

The (local) court is responsible for deciding whether and in what amount a fine is to be imposed. Most of the proceedings do not take place in court. Rather, the decision of the court is announced to the convicted person in the written order procedure (§§ 407 ff. StPO ). The penal order is drawn up beforehand by the public prosecutor and is usually not changed by the court.

The convicted person has two weeks after delivery to appeal the decision. If he puts it in, a court hearing will ensue. Until then, he is considered "not convicted".

It is possible to limit the objection to a legal consequence. For example, you can only appeal against the amount of the daily rate (see below). The court can then follow this objection without starting a hearing. If the objection is not filed or not filed in due time, the judgment is final. Once the judgment has become final, the fine will be enforced. The public prosecutor's office is responsible for this.

Calculation of the fine (daily rate fine)

In Germany, the fine is calculated in daily rates. This daily rate system comes from the Scandinavian region and was introduced in the Federal Republic of Germany in 1975. The background to this regulation is the endeavor to adapt the sentences to the different economic circumstances of the accused.

The fine results on the one hand from the number of daily rates imposed (Section 40 (1) of the Criminal Code ) and on the other hand from the amount of the individual daily rate (Section 40 (2) and (3) of the Criminal Code). Both are multiplied together. Example: 30 daily rates (number) × 20 euros (amount) = 600 euros fine.

Number of daily rates

The court decides on the number of daily rates imposed as part of the actual sentence . It is based on the degree of guilt and aims at a fair compensation of guilt. A higher number certifies a higher guilt. 5 to 360 daily rates are legally possible, with formation of a total penalty according to § 54 StGB up to 720 daily rates.

Amount of the daily rate

The determination of the amount of the individual daily rate must be separated from this actual assessment of the penalty . The amount can range from one euro to 30,000 euros (Section 40 (2) sentence 3 StGB). This range is used to adapt the punishment to the different economic circumstances of the perpetrators. A "victim equality" is to be achieved, i. H. the effect of the punishment should be similar in the case of comparable guilt. A person with a higher income receives a higher penalty for a comparable offense. In order to achieve this, the court orients itself on the personal and economic circumstances of the perpetrator: "As a rule, this is based on the net income that the perpetrator has or could have on average on one day." (Section 40 (2), Sentence 2 StGB).

Simplified scheme: daily rate = monthly net income / 30

The net income includes all income (e.g. also maintenance payments). The court can deviate from this if other charges are to be taken into account. These include: maintenance obligations, extraordinary debts (e.g. due to illness or training, etc.). As a rule, wealth does not play a role. The court also deviates from the above scheme when it comes to low-wage earners or recipients of social benefits and the income is on the verge of subsistence level. It is recognized that this group of people will be hit harder by the fine. The daily rate is reduced in these cases. For recipients of unemployment benefit II, the daily rate is reduced to, for example, 5 euros. For people without income (e.g. homeless, prisoners with no earnings), the daily rate can be set at one euro.

estimate

The court is permitted to estimate the defendant's income (Section 40 (3) StGB), e.g. B. if he has given insufficient or no information. The Federal Constitutional Court has made this clear: “However, an estimate presupposes the concrete determination of the basis of the estimate; mere guesswork is not enough. The basis on which the estimate is based must be established and proven and communicated in a verifiable manner in the judgment. ”The basis for the estimate must therefore be noted in the judgment.

Criminal record?

Fines of up to 90 daily rates are not included in the certificate of good conduct , the convicted person is not considered to have a criminal record in relation to other than judicial authorities , unless a further entry is made in the federal central register or already exists at the time the certificate of good conduct is issued. In practical terms, this means that if two fines are imposed within 5 years, at least the second penalty will appear in the certificate of good conduct. Furthermore, this so-called 90-day rate rule does not apply to sexual offenses (Sections 174 to 180 or 182 StGB). The legal basis is Section 32, Paragraph 1, Sentence 2 of the BZRG.

A fine of up to 90 daily rates is also disregarded if several convictions are to be included in the certificate of good conduct, but the individual fine is no longer ( Section 38 BZRG). In all other cases, all convictions are recorded, even if they no longer need to be recorded individually ( participation rule ).

Amortization of the fine

The fine is to be paid off as a matter of priority. However, empirical evidence shows that the number of those unable to pay the fine immediately is high . There are different repayment options:

Installment payments

If a convicted person is unable to pay the fine in one amount, he can be granted payment in installments upon request (Section 42 of the Criminal Code). The amount of the respective installments should be such that the punitive nature of the sanction is not lost. At the same time, however, the payment must also be reasonable for the person - in accordance with their current economic circumstances. There is no uniform standard with regard to the maximum duration of the installment payment. Actually, the court should decide on the installment payment. However, since in the majority of the proceedings there is no hearing, but the judgments are served by penalty order and, in addition, in a large number of cases the economic situation is not known at all, this usually does not take place.

Rather, the public prosecutor's offices then decide on the installment payment in the enforcement procedure ( Section 459a StPO). There, the debtor of the fine must submit a written application for payment in installments and also prove his current economic situation and thus his insolvency. If a convicted person makes partial payments , he can determine whether these will first be offset against the fine, side effects or procedural costs. Otherwise, the legal order of fines, side effects, procedural costs ( § 459b StPO) applies . The public prosecutor's office can and should compulsorily collect a fine if it is to be expected that the fine can be paid ( Section 459c StPO).

Free work

If the fine cannot be paid in installments, the person concerned can request repayment of the fine through free work (Art. 293 EGStGB). Each federal state has issued its own repayment ordinances in which the procedure is regulated. As a rule, the procedures are similar: the convicted person must submit an application for free work to the public prosecutor's office by proving his insolvency (e.g. notification of ALG II). The public prosecutor's office then approves this repayment option and informs the convicted person where he can do the charitable work or which agency he should contact. A daily fine is usually paid off with six hours of free work - in Bremen, Berlin and Baden-Württemberg it is four hours, in Hamburg and Saxony five. In individual cases, for example if there are health restrictions or when working at the weekend, the number of hours can be reduced. If the full number of hours is worked, the fine is paid. If the remaining fine can be paid after the start of freelance work, this is possible at any time.

Replacement custodial sentence

If the fine cannot be introduced, the substitute custodial sentence (§43 StGB) takes its place . One day of imprisonment corresponds to a daily rate . The substitute custodial sentence is carried out like a custodial sentence. But the detainee can at any time pay the remaining fine and thus end the detention immediately.

additional

Replacement fine

The replacement fine according to Section 47 (2) StGB is imposed if the law does not provide for the imposition of a fine, on the one hand, and if the imposition of a so-called short imprisonment sentence according to Section 47 (1) StGB is not essential. Such replacement fines are often z. B. in cases of particularly serious theft according to § 243 Abs. 1 StGB or the unofficial false statement § 153 Abs. 1 StGB because these regulations have a minimum penalty of less than 6 months imprisonment, but do not provide for a fine.

This regulation was made in accordance with Article 12, Paragraph 1 of the Introductory Act to the Criminal Code ( EGStGB ).

No fines

Property fines , which have since been declared unconstitutional in Germany, and forfeiture , which represent a measure of reform and security , are not fines in the narrower sense .

European law

The EU framework decision on the mutual recognition and enforcement of monetary sanctions has been in force since 2005 .

literature

  • Hans-Jörg Albrecht. Determination and enforcement of fines taking into account the daily rate system. The fine in the system of criminal penalties. Berlin 1980.
  • Nicole Bögelein. Interpretation patterns of punishment. A criminal sociological investigation using the example of the fine . Springer VS, Wiesbaden 2016.
  • Nicole Bögelein, André Ernst, Frank Neubacher : Avoidance of 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 .
  • Gerhard Grebing. The fine in German law after the introduction of the daily rate system , in: H.-H. Jescheck & G. Grebing (eds.), The fine in German and foreign law. Baden-Baden 1978.
  • Manfred Hammel. To determine the daily rate for people without income. In: Information Service for Criminal Assistance, Vol. 25, Issue 1, 2017, pp. 35–37.
  • Helmut Janssen. The practice of fine enforcement. An empirical study on the implementation of criminal policy programs. Frankfurt a. M. 1994.
  • Jana Kolsch. Socio-economic inequality in criminal proceedings. LIT Verlag, Münster 2020.
  • Dirk von Selle. Just fine. A specification of the principle of victim equality. Berlin 1997.
  • Frank Wilde. The Fine - An Anti-Social Legal Institution? In: Mschrkrm (4) 2015, pp. 348–364.
  • Frank Wilde. Poverty and punishment. On the aggravating effect of poverty in German criminal law . Springer VS, Wiesbaden 2016.
  • Hein Zipf. The fine in its function to contain the short term of imprisonment . Berlin 1966.

Individual evidence

  1. ↑ Destatis: Law enforcement - Fachserie 10 Reihe 3 - 2019. Retrieved on March 24, 2021 .
  2. ↑ Jana Kolsch: Socio-economic inequality in criminal proceedings . LIT Verlag, Münster 2020, ISBN 978-3-643-14482-9 , pp. 296 f .
  3. ↑ Frank Wilde: Poverty and Punishment. On the aggravating effect of poverty in German criminal law. Springer VS, Wiesbaden 2015.
  4. ↑ See decision of the Federal Constitutional Court of June 1, 2015, BVerfG 2 BvR 67/15 , paragraph 20.
  5. ↑ See decision of the Federal Constitutional Court of June 1, 2015, BVerfG 2 BvR 67/15 , paragraph 21. On the history of the principle of victim equality, see Grebing (1978), von Selle (1996).
  6. ↑ The courts proceed here in different ways. See Wilde (2015).
  7. ^ LG Cologne, judgment of 07/10/2010 - 156 Ns 49/10 ; OLG Naumburg, ruling. July 15, 2010 - 2 Ss 89/10
  8. ^ LG Bad Kreuznach, decision of 01/30/2015 - 2 Qs 132/14. See Manfred Hammel (2017). To determine the daily rate for people without income. In: Information Service for Criminal Assistance, 25th year, issue 1, pp. 35–37.
  9. ↑ BVerfG, decision of 01.06.2015 - 2 BvR 67/15 , paragraph 22
  10. ^ Nicole Bögelein, Andre Ernst, Frank Neubacher: Avoidance of replacement custodial sentences: Evaluation of judicial detention avoidance projects in North Rhine-Westphalia. Nomos, Baden-Baden 2014.
  11. ↑ Graalmann-Scherer 2010, §459a Rn7, in: Löwe / Rosenberg Commentary on the Code of Criminal Procedure.
  12. ↑ Wolters 2012, § 42 Rn 5, in: Systemic Commentary on the Criminal Code.
  13. ↑ See Frank Wilde. The Fine - An Anti-Social Legal Institution? In: Mschrkrm (4) 2015, pp. 348-364; Jana Kolsch. Socio-economic inequality in criminal proceedings, p. 426 ff