Penalty order – overview and defence options

You open the letter box and find a yellow envelope containing a document imposing a penalty on you. If you have received such a penalty order, you should act as soon as possible and seek legal advice. As an objection to a penalty order must be lodged within two weeks of receiving the postal service certificate, you should act quickly and contact a legal professional.

Penalty order – Punishment Without a Trial?

A penalty order (§§ 407 – 412 StPO) is a written court directive that sets a penalty for a specific unlawful act and is issued without a prior oral hearing. The purpose of a penalty order is to ease the burden on the judiciary and reduce the duration and costs of proceedings.

At the request of the public prosecutor, the court can impose various legal consequences in the penalty order, such as fines, driving bans, or revocation of a driver’s license. Additionally, if the accused has legal representation, a suspended prison sentence of up to one year may also be imposed.

A penalty order becomes final if the accused does not file an objection within two weeks of receipt. A final penalty order is equivalent to a judgment (§ 410 (3) StPO).

When a penalty order becomes final. Instead of a penalty order, the public prosecutor may also file charges and request the opening of the main hearing. This can occur if the public prosecutor demands a higher penalty than allowed in the penalty order procedure. However, a penalty order offers a quicker and more cost-effective way to conclude the criminal case.

What requirements must be met for a penalty order?

A penalty order can only be issued for a misdemeanour (§ 12 (1) StGB). These are unlawful acts that carry a minimum penalty of imprisonment of less than one year or a fine.

In addition, there must be sufficient suspicion of the offence (§ 203 StPO). This means that it must be more likely for the accused to be convicted than acquitted. For this, the criminal case must be simple and straightforward, meaning there must be no complicated questions of evidence or legal issues.

The guilt of the offender is not determined but merely considered probable. The court decides in a so-called “summary procedure,” which means solely based on the content of the criminal file without a main hearing.

The purpose of the penal order is to address minor criminal offenses. This particularly includes simple bodily harm (§ 223 StGB), petty theft (§ 242 StGB), driving without a license (§ 21 StVG), driving under the influence (§ 316 StGB), or using public transport without a valid ticket (§ 265a StGB).

What can you do if you receive a penalty order?

If you receive a penalty order, you essentially have two options: you can accept the order or object to it.

If you accept the penalty order, you must pay the fine or serve the sentence. Additionally, the penalty order will be recorded in the Federal Central Register and possibly in the driving aptitude register, which can have negative consequences for your professional and personal future.

If you do not accept the penalty order, you can file an objection within two weeks of its delivery (§ 410 Abs. 1 StPO). The objection must be submitted in writing or recorded at the court office of the court that issued the penalty order. Generally, you do not need to provide reasons for your objection.

Filing an objection means that the penalty order will not take effect and a main hearing before the court will follow. In this hearing, you can defend yourself, present evidence, call witnesses, and ask questions. You can also hire an attorney to advise and represent you. The court may then dismiss, amend, or confirm the penalty order, or impose a higher or lower sentence.

A special form of objection is the so-called limited objection (§ 410 Abs. 2 StPO). This allows you to limit your objection to specific parts of the penalty order, such as the amount of the fine or the duration of a driving ban.

The advantage of a limited objection is that you only risk a higher penalty for the contested part. The disadvantage is that you accept the uncontested part and must pay or serve the corresponding penalty. Additionally, the court may consider other circumstances in the main hearing that could be unfavorable to you.

The dangers and risks of a penalty order

The purpose of a penalty order is to ease the burden on the judiciary, allowing lengthy and costly court proceedings to be bypassed.

At the same time, principles of the rule of law such as “no punishment without guilt” can be diluted, as there is no thorough examination of the facts but only a presumption of the offender’s guilt, undermining the principles of public, oral, and direct hearings.

In practice, it is also observed that most penalty orders are directed at poorer and more vulnerable segments of society, such as the homeless, drug addicts, the mentally ill, or low-income pensioners. The delivery of the penalty order can be problematic, and the language used in the document is often difficult to understand, which can lead to recipients not fully comprehending the contents or the instructions regarding their legal rights.

A penalty order is not a harmless letter but a serious matter that should not be taken lightly. Being found guilty through a penalty order and receiving a penalty can impact your financial, professional, and personal circumstances. It may lead to an entry in your criminal record, which can cause problems when applying for jobs or housing and may also endanger your driver’s license if you are convicted of a traffic offense. Additionally, a penalty order may restrict certain rights, such as serving in a volunteer capacity.

How can we help you?

If you have received a penalty order, you should not act hastily, but should first contact an experienced and qualified lawyer. Our law firm Mügge, Dr Pitschel & Partner has many years of expertise in criminal law and can provide you with comprehensive and individual advice.

We will check for you whether the penalty order is lawful and appropriate, whether you should lodge an appeal and what opportunities and risks are involved.

We also represent you in court and stand up for your rights and interests. We are there for you if you have received a penalty order.

If you have received a penalty order, please contact us as soon as possible so that we can lodge an objection to the penalty order within two weeks of service.