If a defendant is legally convicted as an offender, they are faced with many questions, uncertainties, and fears. Often, a sense of hopelessness arises, along with the thought that the course of events can no longer be influenced at this late stage of the proceedings. However, this is not the case.

Even during sentence enforcement and penal system phases, there are some options that can be discussed with a defense attorney and implemented by them. For example, a motion for inability to serve a sentence (Haftunfähigkeit) can be filed, or efforts can be made to pursue the suspension of the sentence on probation as soon as possible.

Difference Between Penal System and Sentence Enforcement

The Key Points at a Glance

The prerequisite for the commencement of an enforcement procedure is a legally binding criminal judgment.

The competent authority for sentence enforcement is the locally responsible public prosecutor's office.

The penal system is carried out by correctional facilities.

Even during the penal system, there are various actions that defense attorneys can take to make your stay in a correctional facility more comfortable or even shorter.

Sentence Enforcement

After a legally binding conviction, the enforcement procedure pursuant to §§ 449 ff. StPO follows. The prerequisite for initiating an enforcement procedure is a legally binding criminal judgment. At this stage, the sentence imposed in the specific case is executed.

The procedure for sentence enforcement includes all measures necessary to implement the legal consequences ordered by the competent court after a final judgment, as outlined in § 449 Abs. 1 StPO. This includes the enforcement of prison sentences and other forms of deprivation of liberty, measures of rehabilitation and security, monetary fines, as well as the enforcement of driving bans or the revocation of a driving license. Notifications of convictions to the Federal Central Criminal Register or the Driving Fitness Register, as well as any follow-up decisions related to sentence enforcement, are also part of this process.

The primary authority responsible for sentence enforcement is the public prosecutor’s office, acting as the enforcement authority under § 451 Abs. 1 StPO.

The public prosecutor’s office works with various authorities depending on the legal consequences. For example, the revocation of a driving license and the suspension period for its reissuance, classified as measures of rehabilitation and security, are enforced by informing the relevant specialized authorities.

If the person required to pay a fine fails to meet their payment obligations, monetary fines can be enforced subsidiarily through a substitute custodial sentence.

Close cooperation between the enforcement authority and correctional facilities is especially critical for the enforcement of custodial sentences and preventive detention. While the enforcement authority primarily ensures that the conditions for enforcement are met, correctional facilities, as penal system authorities, carry out custodial measures independently based on these conditions.

Penal System

Legislative authority over the penal system, carried out by correctional facilities, was transferred to the individual federal states as part of the 2006 federalism reform. Many states, including Lower Saxony with the Niedersächsisches Justizvollzugsgesetz (NJVollzG), have made extensive use of this authority.

The NJVollzG comprehensively regulates various aspects of the penal system, including youth detention under §§ 113 ff. NJVollzG and pre-trial detention under § 133 NJVollzG, with a particular focus on the execution of prison sentences.

§ 5 NJVollzG establishes the dual goals of the penal system: the resocialization of the offender and the protection of the general public from further offenses, both of which are of equal importance. The specific design of the penal system in Lower Saxony is guided by these principles.

The Role of the Defense Attorney in Sentence Enforcement and the Penal System

Even after a legally binding conviction, we can realize numerous positive options for you within the framework of sentence enforcement and the penal system. Primarily, you always have the right to representation by a legal counsel.

Sentence enforcement law encompasses all measures necessary to initiate and monitor the execution of a court judgment.

By engaging us early in your defense during the enforcement process, we can leverage our expertise and years of experience to influence your sentence and any additional consequences (e.g., the imposition of a driving ban as an ancillary penalty) in your favor.

If you or a family member is in a correctional facility, we can review the enforcement file, probation file, or inmate’s personal file to gain a precise understanding of your specific situation and identify opportunities to positively impact your circumstances.

Particularly towards the end of a prison sentence, questions about the remaining term of imprisonment become significant. There are options to achieve a suspension of the remaining sentence on probation, whether at the halfway or two-thirds mark of the sentence. We advise and represent you regarding possible sentence suspensions at these points.

We can often assist even before your prison term begins. At this stage, we can help you explore options such as a postponement of enforcement (up to four months), an application for incapacity to serve a sentence, or a deferral of the sentence for drug therapy purposes.

The term penal system refers to the execution of a custodial sentence or preventive detention under § 66 StGB. It is particularly relevant to questions of when and how a custodial sentence will be carried out. This includes regulations on the nature of incarceration, the rights and obligations of inmates, and opportunities for leave or eased enforcement. For example, it may be possible to secure a transfer to a facility closer to your family.

The penal system governs how a sentence is enforced, such as whether the convict is granted leave or relaxation of enforcement conditions. This also includes the rights and obligations of inmates within the correctional facility.

If engaged, we can review all records maintained about you. Should a correctional plan be prepared, we can participate in the corresponding correctional plan conference on your behalf to ensure comprehensive information is provided.

Additionally, we can assert your rights to treatment measures, such as leave, work-release programs, or furloughs, by filing the necessary applications. In some cases, we can also assist in securing smaller amenities, such as receiving newspapers, magazines, a radio, or a television.

Sentence enforcement and the penal system do not mark the end of an attorney’s ability to positively influence your situation. Contact us if you are interested in personalized advice and improvements to your circumstances.