Penalty Order
Did you unsuspectingly open your mailbox today and find a penal order from a District Court? We can help you and answer your questions: What should you do if you have received a penal order from the court? Do you have to accept it, or can you defend yourself? Under what conditions can you file an objection? Can you present exculpatory facts?
The Requirements for a Penalty Order – When Can a Penalty Order Be Issued?
A penalty order is a written judgment issued by the court without a court hearing, upon application by the public prosecutor’s office. The public prosecutor’s office applies to the court for the issuance of a penal order if it deems a main hearing unnecessary, particularly for minor offenses and petty crimes.
The penalty order procedure has proven effective as a simplified procedure in many cases. For the accused, a penal order can have the advantage that the proceedings are concluded quickly and no public hearing takes place that could attract attention.
The basis of a penalty order is an alleged commission of a criminal offense by you. The penal order procedure is applicable for minor offenses – misdemeanors, Section 12 (2) of the German Criminal Code (StGB) – and factually simple cases (e.g., traffic-related criminal offenses), where the penalty is a fine of up to 360 daily rates or a custodial sentence of up to one year, suspended on probation. The latter also requires, in the penal order procedure, that the accused has a defense counsel, Section 407 (2) sentence 2 of the German Code of Criminal Procedure (StPO).
A proceeding that concludes with a penal order is a shortened, written criminal procedure, Sections 407 et seq. StPO. The final decision in the form of the penal order is based solely on the case file and occurs without taking evidence in an oral main hearing.
The Course of a Penal Order Procedure – Advantages and Disadvantages of Not Holding a Main Hearing
If the public prosecutor’s office assumes sufficient suspicion, it submits an application for a penal order to the District Court with the request to issue the penal order as applied for.
After the public prosecutor’s office has submitted such an application for the issuance of a penal order to the criminal judge of the locally competent District Court, the criminal judge is responsible for deciding on the case.
If the criminal judge considers the issuance of a penal order as applied for, which contains a custodial sentence of up to one year suspended on probation, he must also appoint a public defender for the accused under the conditions of Section 408b StPO.
In the absence of sufficient suspicion, the criminal judge can reject the penal order by decision. Against this, the public prosecutor’s office is entitled to an immediate appeal according to Section 210 (2) StPO . Alternatively, the judge in the penal order procedure can schedule the main hearing. The judge will choose this path if there are concerns about the penal order procedure, or if he wishes to impose a legal consequence different from that requested by the public prosecutor’s office.
The characteristic omission of an oral main hearing in the penal order procedure may at first glance offer the advantage of not being exposed to a public and psychologically stressful main hearing. For the question of whether a main hearing in your situation might nevertheless be more promising with regard to the possible legal consequences, and whether filing an objection leading to a main hearing is advisable, an individual case review by a specialized criminal defense lawyer can provide decision-making assistance.
The Legal Consequences of a Penal Order – What Can Happen?
Although the penal order, designed for misdemeanors, is limited to fines and custodial sentences of up to one year suspended on probation, in addition to other possible legal consequences – such as the issuance of a driving ban according to Section 44 StGB or the withdrawal of the driving license according to Section 69 StGB – a penal order leads to an entry in the Federal Central Register. A penal order proceeding concluded to your detriment can therefore result in a criminal record.
Timely Action Can Be Crucial with a Penal Order
An objection against the penal order can be filed within two weeks of its service. The objection must be made in writing or recorded by the court clerk, Section 410 (1) StPO.
If you do not file the objection within the two-week objection period, your objection is untimely and can be rejected by the court as inadmissible by decision. You then have the right to an immediate appeal against this decision. In the event of complete inaction, the penal order is even equated with a legally binding judgment, Section 410 (3) StPO. Therefore, it is particularly important that you contact a lawyer immediately if you have received a penal order.
A timely objection, however, prevents the penal order from becoming legally binding. The consequence is that you do not initially have to pay the penalty, and any ancillary consequences, such as a driving ban or the withdrawal of your driving license, do not initially take effect. After a timely objection has been filed, a main hearing usually takes place before the District Court. During the hearing before the court, you will have the opportunity to present exculpatory facts.
Since the deciding court is generally not bound by the legal consequences corresponding to the public prosecutor’s application for a penal order, a timely objection, provided the subsequent proceedings turn out in your favor, can lead to relatively mild consequences for you: The main hearing can result in the penal order being withdrawn, you being acquitted, the proceedings against you being discontinued subject to conditions or instructions according to Section 153a StPO or due to insignificance according to Section 153 StPO, or a lesser penalty being imposed in the form of fewer daily rates or lower daily rates.
However, there is also the risk that you may be sentenced to a higher penalty, as the competent judge is not bound by the penalty of the penal order. Nevertheless, an objection is worthwhile in the vast majority of cases, as a penal order represents a unilateral penalty imposition by the public prosecutor’s office.
Received a Penal Order – Is It Worth Consulting a Lawyer?
Due to the existing two-week deadline for a possible objection and the fact that an objection against a penal order does not necessarily lead to a more favorable outcome for you, you should act quickly after receiving a penal order – focusing on finding a specialized criminal defense lawyer. Not only the timely objection against a penal order, but also the question of whether filing it is advisable in your specific case, will be discussed competently and efficiently with you.
To assess the chances and risks of an objection procedure, we will request access to the files and discuss the facts with you to achieve the best possible outcome. We will file an objection for you in due form and within the deadline, and represent you in the scheduled main hearing.