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.

What should you do if you have received a penalty order?

A penalty order (Sections 407 – 412 of the German Code of Criminal Procedure) is a written order from the court that imposes a penalty for a specific unlawful offence and is imposed without a prior hearing. The purpose of the penalty order is to relieve the burden on the judiciary and reduce the duration and costs of proceedings.

At the request of the public prosecutor’s office, the court can stipulate various legal consequences of the offence in the penalty order, such as fines, driving bans or a driving disqualification and, if the defendant has a defence lawyer, a prison sentence of up to one year if its execution is suspended on probation.

A penalty order becomes legally binding if the accused does not lodge an objection within two weeks of receipt. A final penalty order is equivalent to a judgement (Section 410 (3) StPO).

Instead of a summary penalty order, the public prosecutor’s office can also bring charges and apply for the main trial to be opened. This may be the case if the public prosecutor’s office demands a higher penalty than in the summary penalty order proceedings. However, the summary penalty order offers a quicker and more cost-effective way of concluding the criminal case.

What requirements must be met for a penalty order?

A penalty order can only be issued for an offence (Section 12 (1) StGB). These are unlawful offences that are punishable by a minimum prison sentence of less than one year or a fine.

In addition, there must be sufficient suspicion of the offence (Section 203 StPO). This means that it must be more likely that the accused will be convicted than acquitted. To this end, the criminal case must be simple and straightforward, i.e. there must be no complicated questions of evidence or legal problems.

The guilt of the offender is not established, but merely considered probable. The court decides in a so-called “summary procedure”, i.e. purely on the basis of the contents of the criminal file without a main hearing.

The purpose of the summary penalty order is to cover petty offences. This applies in particular to simple assault (Section 223 StGB), petty shoplifting (Section 242 StGB), driving without a licence (Section 21 StVG), drunk driving (Section 316 StGB) or using public transport without a valid ticket (Section 265a StGB).

What can you do if you have received a penalty notice?

If you have received a penalty order, you basically have two options: You can accept the penalty order or appeal against it.

If you accept the penalty order, you must pay the fine or serve the sentence. In addition, the penalty order will be entered in the Federal Central Criminal Register and, if applicable, in the driving aptitude register. This can have negative consequences for your professional and personal future.

If you do not accept the penalty order, you can lodge an objection within two weeks of service (Section 410 (1) of the Code of Criminal Procedure). The objection must be lodged with the court that issued the penalty order in writing or on the record of the court registry. In principle, you do not have to justify why you are lodging an objection.

The objection means that the penalty order has no effect and a main hearing will be held before the court. At the main hearing, you can defend yourself, present evidence, call witnesses and ask questions. You can also instruct a lawyer to advise and represent you. The court can then cancel, amend or confirm the penalty order. It can also impose a higher or lower sentence.

A special form of objection is the so-called limited objection (Section 410 (2) StPO). Here you have the option of limiting the objection to a specific part of the penalty order, for example to the amount of the fine or the duration of the driving ban.

The advantage of a limited objection is that you only run the risk of a higher penalty for the contested part. The disadvantage is that you have to accept the unchallenged part of the penalty order and pay or serve the corresponding sentence. In addition, the court may also take other circumstances into account at the main hearing that are unfavourable to you.

The dangers and risks of a penalty order

The purpose of the summary penalty order is to relieve the burden on the judiciary. Summary penalty orders can lead to lengthy and costly court proceedings being avoided.

At the same time, however, principles of the rule of law such as “no punishment without guilt” are watered down by the fact that the facts of the case are not examined in detail, but only the guilt of the offender is considered probable, or the principles of publicity, orality and immediacy of a main hearing are undermined.

In addition, it can be observed in practice that the majority of penalty orders are primarily aimed at poorer and socially weaker sections of society, for example homeless people, drug addicts, mentally ill people or low-income pensioners. In addition to the problem of serving the penalty order, the language in the letter is often difficult to understand. This can lead to the addressees of the penalty order not understanding it properly, especially the information regarding their possible legal remedies.

A penalty order is not a harmless letter, but a serious matter that you should not take lightly. A penalty order means that you are considered guilty and receive a penalty that can affect your financial, professional and personal situation. A summary penalty order can lead to an entry in your criminal record, which can cause you difficulties when applying for a job or a flat, for example, or even jeopardise your driving licence if you are prosecuted for a traffic offence. A penalty order can also restrict your rights, for example when carrying out voluntary work.

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.