Penal Order – Overview and Defense Options

What is a penal order?

A penal order is a written court order imposing a penalty for a specific unlawful act without a prior oral hearing. It is often referred to as a “judgment without trial” and is primarily used for less serious offenses. If you find such a penal order in the form of a yellow envelope in your mailbox, quick action is required, as the objection period is only two weeks.

Purpose and legal basis of the penal order

The penal order is regulated in §§ 407 to 412 of the Code of Criminal Procedure (StPO) and serves several purposes:

• • • Relief for the judiciary: By avoiding elaborate main trials, courts are relieved of burden
    • Expediting proceedings: Penal order proceedings are significantly faster than regular criminal proceedings
    • Cost savings: Lower costs arise for both the state and the accused
    • Avoidance of public hearings: The accused is not subjected to the pressure of a public hearing

For the accused, a penal order can have the advantage that the proceedings are concluded quickly and no public hearing takes place that might attract attention.

What penalties can be imposed by penal order?

A penal order can impose various legal consequences:

• • • Fines in the form of daily rates
    • Driving bans for a period of one to three months
    • Revocation of driving license with or without a waiting period for reissuance
    • Suspended prison sentence of up to one year (only if the accused is legally represented)
    • Warning with reservation of penalty
    • Confiscation of instruments or proceeds of the offense
    • Prohibition on keeping or caring for animals

According to § 407 StPO, this list of possible legal consequences is exhaustive. A prison sentence without suspension can never be imposed in penal order proceedings.

Requirements for a penal order

For a penal order to be issued, certain legal requirements must be met:

Only permissible for misdemeanors

A penal order can only be issued for misdemeanors. According to § 12 para. 2 StGB , these are unlawful acts punishable by a minimum prison sentence of less than one year or by a fine. A penal order is not possible for felonies (minimum one year imprisonment).

Typical offenses in penal order proceedings

Penal orders are particularly frequently issued for the following offenses:

• • • Traffic offenses: Driving under the influence (§ 316 StGB), driving without a license (§ 21 StVG), leaving the scene of an accident (§ 142 StGB)
    • Property offenses: Shoplifting (§ 242 StGB), fraud (§ 263 StGB), obtaining services by deception/”fare evasion” (§ 265a StGB)
    • Assault offenses: Simple assault (§ 223 StGB)
    • Offenses against public order: Trespass (§ 123 StGB), insult (§ 185 StGB)
    • Drug offenses: Possession of small quantities of narcotics (§ 29 BtMG)

Sufficient suspicion

For the issuance of a penal order, there must be sufficient suspicion according to § 203 StPO. This means that, based on the case files, a conviction must be more likely than an acquittal. The investigation must therefore have produced a relatively clear set of facts.

Simple and straightforward facts

The facts must be simple and straightforward so that they can be decided without an oral hearing. In cases involving complex evidentiary questions or difficult legal issues, penal order proceedings are unsuitable.

Procedure: The course of penal order proceedings

Penal order proceedings follow a specific course that you should be aware of as a person concerned:

Application by the public prosecutor’s office

The proceedings begin with an application by the public prosecutor’s office to the competent court. In this application, the issuance of a penal order with a specific penalty demand is requested. The public prosecutor’s office submits this application when, based on the results of the investigation, it does not consider a main trial necessary.

Review by the court

The competent court reviews the application by the public prosecutor’s office and the investigation files. It may issue the penal order if it considers the requirements to be met. However, the court may also reject the application or order the opening of a main trial.

If the criminal judge considers issuing a penal order with a suspended prison sentence, he must also appoint a mandatory defense counsel for the accused under the conditions of § 408b StPO.

Service of the penal order

The penal order is formally served on the accused, usually by post with a yellow delivery certificate. The two-week objection period begins with service.

Legal force of the penal order

If the accused does not file an objection or withdraws it, the penal order becomes legally binding. According to § 410 para. 3 StPO, a legally binding penal order has the same effect as a legally binding judgment.

Options for action upon receipt of a penal order

If you have received a penal order, you have various options for action:

Accepting the penal order

You can accept the penal order and the imposed penalty. This has the following consequences:

• • • The imposed fine must be paid or the prison sentence served
    • The penal order will be entered in the Federal Central Register
    • For traffic offenses, an entry may be made in the Driver Fitness Register
    • The penal order becomes legally binding and has the effect of a judgment

Objection to the penal order

You can file an objection to the penal order within two weeks of service. The objection has the following effects:

• • • The penal order does not become legally binding
    • A main trial before the court takes place
    • In the main trial, you can defend yourself comprehensively
    • The court decides anew on the case after the main trial

How to file an objection

The objection must be received in writing by the court that issued the penal order within two weeks of service, or declared on the record at the registry office. A simple letter stating the case number and the declaration “I hereby file an objection to the penal order dated [date] with case number [case number]” is sufficient.

Important tip: Be sure to keep the yellow envelope in which the penal order was delivered! The date of service is noted on it, which is crucial for calculating the objection period. If the date of service is missing from the envelope, the period only begins when you actually become aware of the penal order, which can give you more time.

Limited objection as an alternative

You can also limit the objection to certain parts of the penal order, for example:

• • • Only to the severity of the penalty (legal consequences objection)
    • Only to the driving ban or revocation of the driving license
    • Only to individual acts in cases of multiple alleged offenses

The advantage of a limited objection is that only the contested part is retried. The uncontested part becomes legally binding.

Withdrawal of the objection

An objection that has already been filed can be withdrawn until the beginning of the pronouncement of judgment in the main trial. After withdrawal of the objection, the penal order becomes legally binding.

What to do if the objection period is missed?

If you have missed the objection period, there are still options to respond in exceptional cases:

1. 1. 1. Application for reinstatement to the previous status: In case of unintentional failure to meet the deadline (e.g., hospital stay, prolonged absence), an application for reinstatement can be filed within one week after the obstacle is removed.
      2. Review of proper service: The objection period only begins with proper service of the penal order. If, for example, the date of service is missing from the envelope, the period may not have been effectively initiated.
      3. Review of the legal remedy instruction: Without correct legal remedy instruction, the objection period is extended to one year.

A missed objection period is a serious problem, as the penal order thereby becomes legally binding. In this case, seek legal advice immediately to review further options. Time is a critical factor, as only one week is available for the reinstatement application after the obstacle is removed.

Risks and consequences of a penal order

A penal order is not a trivial matter, but can have significant effects:

Entry in the Federal Central Register

In case of a conviction to more than 90 daily rates or a prison sentence, the penal order becomes visible in the certificate of conduct. This can have negative effects on:

• • • Applications to new employers
    • Civil service status or public offices
    • Apartment search and creditworthiness
    • Exercise of certain professions or honorary positions

Revocation of driving license and driving ban

For traffic offenses, a penal order can lead to revocation of the driving license or a driving ban. The consequences can be:

• • • Professional restrictions, especially for professional drivers
    • Loss of mobility in daily life
    • Costs and effort for an MPU (“idiot test”) upon reissuance
    • Higher insurance premiums after reissuance

 

Financial burden from fines and procedural costs

The imposed fines and procedural costs can be substantial:

• • • Calculation based on daily rates (number × amount per daily rate)
    • In case of non-payment, substitute imprisonment threatens (1 day per daily rate)
    • Additional procedural costs are incurred
    • Possible claims for damages from injured parties

For penal orders without a main trial, the following court costs apply:

• • • For fines up to 180 daily rates or prison sentences up to 6 months: 70 euros
    • For higher penalties: 140 euros
    • Plus delivery costs of approximately 3.50 euros

Risk of hasty acceptance of the penal order

Many affected persons accept a penal order hastily without examining the prospects of success of an objection. Reasons for this include:

• • • Lack of knowledge of legal options
    • Fear of a main trial
    • Avoidance of additional attorney fees
    • Desire for quick resolution of the proceedings

Penal order proceedings in numbers

The significance of penal order proceedings is illustrated by statistical data:

• • • Over 50% of all criminal proceedings are resolved through penal order proceedings
    • Objections are filed against only about 10-15% of penal orders
    • In about 40% of objections, the objection is later withdrawn
    • In approximately 30% of main trials following an objection, a milder penalty results
    • In about 5% of cases, an acquittal occurs

Specific target groups for penal orders

In practice, it can be observed that certain population groups are particularly frequently affected by penal orders:

• • • Socially disadvantaged persons: People with low income or in precarious living conditions
    • Persons with language barriers: Migrants with limited German language skills
    • People with mental illnesses: Affected persons who have difficulty assessing the consequences
    • Elderly people: Seniors who are unfamiliar with the legal system
    • Young adults: Persons who are coming into contact with criminal law for the first time

These groups often have difficulty fully understanding the content of the penal order or exercising their rights. Legal advice from a  specialist attorney for criminal law can therefore be particularly important.

Defense options against the criminal charge

If you have received a penal order, there are various options for effective defense:

Careful review of the penal order

An experienced criminal defense attorney will first carefully review the penal order for formal and substantive errors:

• • • Are all personal data correct?
    • Is the alleged offense precisely described?
    • Are the legal bases correctly stated?
    • Was the penalty appropriately assessed?
    • Are there procedural obstacles such as statute of limitations?

Statement on the facts and legal situation

Your defense attorney can prepare a comprehensive statement explaining why the charge is unfounded or the evidence insufficient. Exculpatory evidence can also be presented, such as:

• • • Alibi evidence
    • Witness statements in your favor
    • Expert opinions refuting the alleged offense
    • Documents establishing different facts

Negotiation with the public prosecutor’s office

It is often possible to negotiate with the public prosecutor’s office to achieve a more favorable solution for you:

• • • Dismissal of proceedings pursuant to § 153 StPO (due to minor nature)
    • Dismissal subject to conditions pursuant to § 153a StPO
    • Reduction of the penalty within the framework of a modified penal order

Objection and preparation for the main trial

If the aforementioned measures are not successful, your attorney can file an objection to the penal order and develop an effective defense strategy for the subsequent main trial. This may include:

• • • Motions for evidence in your favor
    • Witness examinations to undermine incriminating statements
    • Expert opinions to refute the charges
    • Legal objections to the admissibility of evidence

Our specialist attorneys for criminal law from the law firm Mügge, Dr. Pitschel & Partner have extensive experience with penal order proceedings and can help you develop the best defense strategy for your individual case.

A penal order is a serious legal matter with potentially far-reaching consequences for your personal and professional future. The short objection period of only two weeks requires a quick but well-considered response.

Review the penal order carefully and consult a specialized attorney for criminal law in case of uncertainties or doubts. The costs of legal advice can be worthwhile if unjustified or excessive penalties are thereby avoided.

Keep in mind: A hasty waiver of objection can have negative consequences for years, while sound legal advice can provide you with clarity and possibly better outcomes. An  early consultation is particularly important if professional or existential consequences are threatened or if you belong to one of the particularly vulnerable groups.

The specialist attorneys for criminal law at the law firm Mügge, Dr. Pitschel & Partner have already successfully represented many clients in penal order proceedings and can develop the best defense strategies in your case as well.