Penal order procedure (Germany)
In German law, the criminal order procedure is a simplified procedure for dealing with minor crime by means of a written penalty order . The peculiarity of the penal order procedure is that it can lead to a final conviction without an oral main hearing. This relieves the court and the public prosecutor's office, but it can also be in the interests of the accused, since the procedure is carried out quickly, cost-effectively and without causing a stir. The guilt of the offender does not have to be established for the conviction of the court, but sufficient suspicion is sufficient .
According to StPO , the following may be considered as legal consequences of the act :(2)
- Fine ( StGB)
- Warning with reservation of punishment ( StGB)
- Driving ban ( StGB)
- Forfeiture ( StGB)
- Confiscation ( StGB)
- Destruction (only provided for in ancillary criminal law)
- Rendering useless ( StGB)
- Announcement of the conviction (e.g. , StGB)
- Fine against a legal person or association of persons ( OWiG )
- Withdrawal of the driver's license ( StGB) if the ban for re-issuance according to StGB is not more than two years.
- Prohibition of keeping or looking after, trading or other professional handling of animals of any or a certain species for a period of one year to three years
- Refrain from punishment ( StGB).
Application for the issuance of a penalty order
The public prosecutor's office or the private prosecutor (who has the same legal remedies as the public prosecutor's office under Code of Criminal Procedure) applies to the court to issue a penalty order . The criminal judge of the local court is responsible .
According to today's wording of lay judge's court . According to , GVG , the lay judge's court is only responsible for crimes or offenses for which a prison sentence of more than two years is to be expected. Therefore, penalty orders cannot be applied for there due to a lack of factual jurisdiction. Because the penalty order is only possible for offenses and a maximum of one prison sentence of up to one year may be set, which must be suspended for probation. Previously, the lay judge's court could also be responsible because of the importance of the matter. The mention of the lay judge's court is therefore only justified in terms of legal history and is currently legally irrelevant. However, this only applies to penalty orders according to §§ 407, 408 StPO. A penalty order according to StPO can still be issued by the lay judge.(1) and (1) of the Code of Criminal Procedure, penal orders could also be applied for at the
According toStPO, the judge has the following options to respond to an application for a penalty order:
- If there are no objections to the issuing of the penalty order, he must issue the penalty order. Imprisonment should be set in penal and has accused no defender , the judge appointed pursuant to Code of Criminal Procedure the accused initially a public defender .
- If the judge does not consider the accused to be sufficiently suspicious, he rejects the issue of the penalty order by decision . The public prosecutor's office can lodge an immediate complaint against this decision, StPO. The joint plaintiff and (to a limited extent) the private plaintiff are also entitled to lodge a complaint, but not the injured party and the complainant, provided that he is not also a joint plaintiff.
- The judge will schedule the main hearing if he has doubts without deciding such, if he wants to deviate from the legal assessment of the offense in the application for a penalty order or if he wants to determine a legal consequence other than the one applied for. In this case, however, he must first give the public prosecutor the opportunity to comment and, if necessary, to change the request for a penalty order.
By issuing a penalty order, an accused becomes a defendant (StPO). With (1) sentence 1 of the Code of Criminal Procedure, which regulates the position of a person involved in confiscation, the legislature expressed that lis pendens occurs when the penalty order is issued. In practice, however, this is of little importance, as the penalty order can be withdrawn by the public prosecutor's office until the judgment is pronounced at first instance. It is equivalent to an opening resolution, which, however, does not exist in view of the lack of interim proceedings. With the decree, the judge expresses that he affirms sufficient suspicion. This corresponds to the legal requirement for opening main proceedings in normal criminal proceedings.
The delivery of the penalty order to the accused is required. Alternatively, the judge can hand it over to a defendant in person. The obligation to announce the penalty order results fromparagraph 2 sentence 1 StPO. The accused is thereby informed of the charge. He can also decide whether or not to file an objection. The penal order can also be served on the chosen defense attorney, whose power of attorney is in the files, or the appointed defense attorney ( StPO). In such a case, service on the defender is also deemed to have been effected on the defendant. The deadline for filing an objection begins with proper delivery.
The defendant can object to an issued penalty order within two weeks of delivery . The objection can be submitted in writing or for the minutes of the office ( (1) StPO). It must have been received by the court that issued the penalty order within the deadline. If the objection is filed on the record of the registry of another district court, the defendant bears the risk of timely access to the competent court if he is at large. Anyone who is not at large can also lodge an objection in good time with the district court of the place of custody. In this case, the deadline is met even if the objection is received later by the competent court ( StPO).
The objection does not have to be justified.
If no objection is lodged against the penalty order within two weeks of delivery, the penalty order becomes final and is equivalent to a judgment ( (3) StPO). If the defendant waives his right to appeal in writing before the deadline has expired (e.g. because he wants to start a penalty such as a driving ban as early as possible and thus end it earlier), then the legal force takes effect. The further procedure can be as follows:
Rejection of the objection by resolution
Section 411 (1) sentence 1 StPO provides for the objection to be rejected by a decision of the court that issued the penalty order in the event that the objection is inadmissible, in particular due to late filing. The appellant has the right to appeal against this decision immediately , on which the regional court, as the court of appeal, also decides in writing. In addition, the defendant who missed the objection deadline through no fault of his own can be granted reinstatement in accordance with the general rules of criminal proceedings .
If there are doubts about the admissibility of the objection, it must first be treated as admissible and the main hearing carried out. If the inadmissibility of the objection was overlooked or considered to be dubious and the main hearing started, the court decides in each case by judgment.
Arranging a main hearing
If the objection does not turn out to be inadmissible from the outset, the date for the main hearing must be set and the main proceedings carried out. However, the public prosecutor's office can withdraw the public complaint contained in the application for the issuance of the penalty order until the start of the main hearing with the accused's consent. It is also possible to discontinue the procedure based on the principle of opportunity ; in this respect, the general provisions of § 153 ff. StPO apply.
Limitation of Opposition
The accused can also limit the objection to certain legal consequences (Section 410 (2) StPO). Example: The penalty order contains a fine and the withdrawal of the driver's license plus a blocking period of ten months. If the accused does not agree with the duration of the blocking period, he can limit his objection to this consequence. In the main hearing, therefore, only the contested part of the legal consequences, in this case the duration of the blocking period, is negotiated and decided.
Decision on the daily rate
If the accused has limited his objection to the amount of the daily rates, the court, with the consent of the parties to the proceedings, can decide in this case without an oral hearing ((1) sentence 3 StPO). The legal remedy of an immediate appeal against this decision is also admissible.
In the oral hearing, the application for the issuance of a penalty order replaces the indictment and the penalty order itself replaces the opening order . The taking of evidence is simplified in accordance with the provisions on the accelerated procedure ( Paragraph 2, Sentence 2, Code of Criminal Procedure).
In contrast to normal criminal proceedings, accelerated proceedings or the procedure after a main hearing has been scheduled in accordance with(3) sentence 2 of the Code of Criminal Procedure, the accused does not need to appear at the main hearing after objecting to the penalty order. The accused can be represented by a defense attorney provided with a written power of attorney ( (2) sentence 1 StPO). The court can, however, order the accused to appear in person and, if necessary, enforce it ( StPO).
If the accused does not appear at the main hearing in spite of a proper summons and if he is not properly represented, the objection is rejected by judgment without a hearing on the matter ( Appeals , revisions or applications for reinstatement in the previous status are possible against this judgment ., StPO).
The defendant may withdraw the objection and the public prosecutor may withdraw the public charge at any time before the judgment is pronounced. If the main hearing has already started, i.e. after the court has called the matter up, the respective procedural “opponent” must agree to the withdrawal. If no approval is given, a decision must be taken on the objection.
In the main hearing, the court is not bound by the guilty verdict and the legal consequences of the penalty order. The court can - after issuing a notice in accordance withCode of Criminal Procedure - convict the accused of a different offense, including a more serious one than in the penalty order (for example, dangerous bodily harm according to StGB instead of simple bodily harm according to StGB) or a higher sentence arrest than was provided for in the penalty order. Therefore, filing an objection always involves a certain degree of risk for the accused. However, the court must not use the mere fact that the defendant has lodged an objection as an opportunity to increase the sentence.
A penalty order can also be issued after a charge has been brought. This procedure (StPO) is permissible if the accused does not appear despite a proper summons and the conditions for issuing a penalty order (see above) are met. This procedure is also possible for the lay judge's court, provided that no more than one year of imprisonment is imposed, which is suspended on probation.
In accordance with Appendix 1 to the Court Fees Act, court costs of
- 70 euros (fine of up to 180 daily rates or imprisonment of up to 6 months) or
- 140 euros (fine over 180 daily rates or imprisonment over 6 months).
If a main hearing takes place, the costs correspond to those of normal criminal proceedings and then amount to
- 140 euros (fine of up to 180 daily rates or imprisonment of up to 6 months) or
- 280 euros (fine over 180 daily rates or imprisonment over 6 months).
If the penalty order has not become legally binding due to an objection and the procedure is then dealt with in another way, in particular by withdrawing the action or discontinuing the action , the costs are generally not charged.
The court costs have nothing to do with the fine itself. They even accrue when a penalty is waived or in the case of warnings with reservation of the penalty. However, unlike the fine that has been imposed, they cannot be compensated for by a substitute imprisonment.
The court costs are only charged to the accused if he has been sentenced to bear the costs or if the costs have been imposed on him in the penalty order that has become final. According toStPO, the convicted person is to be ordered to pay the costs. In the event of acquittal or suspension, the state treasury bears the costs ( StPO). If a decision on costs is accidentally not made, the costs will also be borne by the state treasury.
The penal order procedure is mainly used in practice in cases of so-called mass crime. Typical offenses punished by penalty orders are traffic offenses such as drunkenness in traffic , unauthorized removal from the scene of the accident , endangering road traffic or driving without a driver's license , further thefts (in particular shoplifting), so-called simple physical injuries according to StGB (i.e. no dangerous or serious physical injuries ), property damage, Creepy service (so-called fare dodging on public transport ), insults ( , StGB), resistance to law enforcement officers in accordance with StGB.
The penalty order procedure is also often used in the case of tax evasion , whereby the specialty here is that instead of the public prosecutor's office, the tax office's fines and criminal matters department can also apply for the penalty order to the court. However, if a main hearing is held, the public prosecutor's office must be present at the main hearing, but the administrative fines and criminal offense can also take part in the main hearing. The enforcement of the penalty order is the sole responsibility of the public prosecutor, even in the case of tax offenses.
In practice, the majority of criminal proceedings are now concluded using the penal order procedure, if they are suitable.
In juvenile justice following special conditions: the case of juvenile no punishment may be imposed, however, is the so-called simplified procedure youth a judgment without charge due to a short written or oral request of the prosecution possible. A penalty order, the legal consequence of which is a custodial sentence, is not permissible against adolescents (18 to 20 years of age) (cf. §§ 79, 80, 109 JGG ). A penalty order may only be issued against them if general criminal law is to be applied ( (2), (1) JGG). The youth judge is responsible .
- Jörg Burkhard, Penalty Order in Criminal Tax Law , Frankfurt, 1997
- Detlef Burhoff, Manual for the criminal investigation procedure . 6th edition 2013
- Klaus Jochen Müller: The penalty order procedure (§§ 407ff. StPO). A dogmatic criminal policy study on this form of the written procedure with special consideration of the historical development - at the same time a contribution to the StVÄG 1987 . Frankfurt am Main u. a .: Lang 1993.
- Alexander Vivell: The penal order procedure after opening the main proceedings (§ 408a StPO). A critical examination and analysis . Frankfurt am Main u. a .: Lang 2006.
- Detlef Burhoff: The penalty order in criminal tax proceedings, Practice Tax Criminal Law (PStR) 1999, 52
- Meyer-Goßner / Schmitt, StPO, 58th edition 2015, before § 407 Rn. 1
- Meyer-Goßner / Schmitt, StPO, 58th edition 2015, before § 407 Rn. 1, controversial
- Meyer-Goßner / Schmitt Before § 407 Rn. 3
- Meyer-Goßner / Schmitt § 409 Rn. 16
- § 410 StPO objection; Form and deadline of the objection; Legal force - dejure.org. In: dejure.org. Retrieved July 25, 2016 .
- Appendix 1 (to Section 3 Paragraph 2) List of Costs, Part 3, Main Section 1, Section 1, Numbers 3118 and Numbers 3110, 3111
- Appendix 1 (to Section 3 Paragraph 2) List of Costs, Part 3, Main Section 1, Section 1, Numbers 3110, 3111
- Meyer-Goßner / Schmitt, StPO, 58th edition 2015, before § 407 Rn. 1