What is a penal order?
A criminal conviction cannot only occur after an oral hearing in court. During such a hearing, evidence is taken and the defendant has the opportunity to speak before being found guilty. A penal order, on the other hand, is a formal letter from the court that sets a sentence for a defendant without a court hearing. Just like a judgment, this results in a legally binding conviction with largely the same legal consequences. A legally binding penal order against which no appeal is filed can – like a normal judgment – also lead to a criminal record and thus to an entry in the Federal Central Criminal Register (BZR).
The possibility of a conviction by means of a penal order primarily serves the Relieving the burden on the courts. In particular, petty crimes can be punished more quickly, more cost-effectively, and with far less effort – without the need for a main hearing with a lengthy hearing of evidence. However, a penal order is only an option if the alleged offense is a misdemeanor, i.e., offense punishable by a fine or imprisonment of less than one year. Felonies, on the other hand, are offenses punishable by a minimum sentence of more than one year. A conviction for a felony cannot be made by means of a penal order.
It is noteworthy, however, that in practice, due to the high workload of the judiciary, the sentence is sometimes imposed by means of a penal order, even for more complex offenses that would otherwise require a court trial. This results in witnesses not being heard or the court not being able to form its own opinion of the defendant. Therefore, it is often necessary to object to a penal order.
What can you do if you receive a penalty order?
According to Section 410, Paragraph 1, Sentence 1 of the Code of Criminal Procedure objection within 2 weeks This period for filing an objection begins on the date of service. An objection can be filed either in writing or recorded at the registry of the court that issued the penal order, without the need for justification.
If you have received a penalty order, it is therefore of utmost importance to contact a lawyer quickly, as the penalty order becomes final after the two-week period has expired. Since an objection can be withdrawn subsequently, it may be advisable to first file an objection, request the investigation file, and then consider the next steps—which may include withdrawing the objection.
Federal Court of Justice, judgment of 14 January 2021 (4 StR 95/20) on the withdrawal of an objection after a joinder of proceedings:
In its judgment of January 14, 2021, the Federal Court of Justice ruled that an objection to a penal order can no longer be withdrawn if the penal order proceedings were previously combined into first-instance regional court proceedings pursuant to Section 4 (1) of the Code of Criminal Procedure.
In the underlying facts of the case, a penal order for a one-year prison sentence was issued against the defendant in criminal proceedings for grievous bodily harm, the execution of which was suspended on probation. The defendant subsequently filed an appeal within the deadline. Approximately five months later, charges were brought against the defendant in another criminal case. The penal order proceedings were then consolidated into the indicted proceedings. Even before the main hearing began, but after the main proceedings had opened, the defendant withdrew his appeal. However, this withdrawal is precluded, so that the penal order did not fully acquire legal force with the alleged withdrawal. As a result, the penal order could not be used for the subsequent determination of the total sentence under Section 55 of the Criminal Code.
With an appeal, one can defend oneself either against the conviction itself or simply against the legal consequences of the penalty order. The fact that the judge issued the penalty order – at the request of the public prosecutor – usually indicates that the judge believes a criminal offense has been committed. Given this, it may be appropriate to challenge the sentence alone. It is always best to have a lawyer review the case to see what can be reasonably explained.
How does the penal order procedure work?
The penal order procedure is governed by Sections 407 et seq. of the Code of Criminal Procedure (StPO). To impose a penalty by means of a penal order, the public prosecutor responsible for the case must apply for a penal order from the criminal judge of the competent district court.
If the judge considers the accused to be not sufficiently suspect, he shall reject the issuance of a penal order by a decision. The public prosecutor may, in turn, lodge an immediate appeal, which must then be decided again. If the judge has reservations about the issuance of a penal order or wishes to determine legal consequences other than those requested by the public prosecutor, he may also schedule an oral main hearing. However, if the judge accepts that there is a sufficient suspicion he issues a penal order containing the underlying facts and the penalty.
In most cases, the penalties imposed by penal orders are fines under Section 40 of the German Criminal Code (StGB). However, a warning with a suspended sentence under Section 59 of the German Criminal Code (StGB), a driving ban under Section 44 of the German Criminal Code (StGB), confiscation under Section 74 of the German Criminal Code (StGB), or revocation of a driver's license under Section 69 of the German Criminal Code (StGB) are also conceivable. If a prison sentence is imposed by a penal order, it is suspended on probation.
If an objection is filed after a penal order has been issued, it can be dismissed. This is the case, for example, if it was not filed in due time or in the correct form. However, the defendant can still file an immediate appeal against such a decision. If, however, the objection is admissible, a oral main hearing, a traditional court proceeding. If the defendant fails to appear at this hearing despite being duly summoned and fails to be represented by a defense attorney, the objection will be dismissed by judgment without an oral hearing. The defendant may still file an appeal or a revision.
Under certain circumstances, namely if new information or legal circumstances become available, the proceedings may still be discontinued before a main hearing.
Penalty order in juvenile criminal law
A special feature exists in juvenile criminal law, as penal orders may generally not be issued against young people aged 14-17. Penal orders may only be issued against adolescents aged 18-21 if they do not provide for a prison sentence.
If you have received a penalty order, we are happy to assist you as experienced criminal defense lawyers to the side.