Objection against a penalty order: two weeks, and what is possible afterwards

The two weeks run from service, not from the day on which you read the document. The provisions of the Zivilprozessordnung, the German Code of Civil Procedure, apply accordingly to the procedure for service (§ 37 Abs. 1 StPO).

Where handing the document over cannot be carried out, it can be placed in a letterbox belonging to the dwelling or to the business premises; with that it counts as served, and the person serving it notes the date on the envelope (§ 180 ZPO).

For that reason a time limit can expire without the recipient knowing about the service: while travelling, for instance. Anyone who comes back and finds the envelope in the letterbox may have no two weeks left, but no time at all. The envelope with the note of service should be kept.

The penalty order itself contains an instruction about the possibility of an objection, about the time limit and the form, together with a notice that the penalty order becomes final and enforceable in so far as no objection under § 410 StPO is lodged (§ 409 Abs. 1 Satz 1 Nr. 7 StPO).

This is the point most easily overlooked in this decision.

In the appeal on fact and law a prohibition of a change for the worse applies: the judgment may not be altered to the disadvantage of the defendant in the kind or the level of the legal consequences of the offence where only the defendant, or the public prosecution office in their favour, or their statutory representative has lodged the appeal on fact and law (§ 331 Abs. 1 StPO).

That provision concerns the appeal on fact and law.

For the proceedings following an objection against a penalty order a different rule applies: § 411 Abs. 4 StPO. Under it, in giving judgment the court is not bound by the ruling contained in the penalty order in so far as an objection has been lodged. The judgment can therefore also turn out less favourably than the penalty order.

An exception is governed by § 411 Abs. 1 Satz 3 StPO for one special case: where the defendant has limited their objection to the level of the daily units of a fine that has been imposed, the court can decide by order without a main hearing with the consent of the defendant, of the defence lawyer and of the public prosecution office; the ruling in the penalty order may then not be departed from to the disadvantage of the defendant.

Against that order a sofortige complaint is admissible.

Statements about prospects of success are not possible at this point. What an objection achieves depends on the state of the evidence.

The charge and the objection can be withdrawn up to the pronouncement of the judgment at first instance (§ 411 Abs. 3 Satz 1 StPO).

§ 303 StPO applies accordingly (§ 411 Abs. 3 Satz 2 StPO): where the decision is taken on the basis of an oral hearing, withdrawal after the start of the main hearing is possible only with the consent of the other side (§ 303 Satz 1 StPO).

This possibility forms part of the assessment. Where access to the case file shows that the objection does not improve the position, withdrawal is an orderly way back.

Where someone was prevented through no fault of their own from observing a time limit, reinstatement of the time limit is to be granted to them on application (§ 44 Satz 1 StPO). The missing of a time limit for a remedy also counts as being without fault where the instruction under § 35a Satz 1 StPO was not given (§ 44 Satz 2 StPO).

This route is itself bound by a time limit. The application is to be made within one week of the removal of the obstacle before the court at which the time limit would have had to be observed (§ 45 Abs. 1 Satz 1 StPO).

The facts relied on must be substantiated, and within the period for the application the missed act must be made good, here therefore the objection (§ 45 Abs. 2 Satz 1 und 2 StPO). Anyone who has missed the time limit should therefore have it examined at once whether this route is open.

Only certain legal consequences may be imposed by a penalty order, among them a fine, a warning with the sentence reserved, a driving ban, confiscation and dispensing with punishment, as well as the withdrawal of the driving licence, where the bar period is not more than two years (§ 407 Abs. 2 Satz 1 Nr. 1 und 2 StPO).

Imprisonment of up to one year can be imposed only where the accused person has a defence lawyer and enforcement is suspended on suspension of the sentence (§ 407 Abs. 2 Satz 2 StPO). The procedure is limited to a misdemeanour (§ 407 Abs. 1 Satz 1 StPO).

The decision about an objection is a weighing between the finality of the penalty order and a set of proceedings in the course of which the court is not bound by the ruling made so far. The basis of that weighing is the case file. How a defence works at this stage can be read on our page on general criminal law.