Penalty order is legally binding?


What is meant by res judicata is described quite well by this old Roman legal principle: Contra rem iudicatam non audietur – against a decided matter one is not heard. Judicial decisions should be unappealable as of a certain date in order to establish legal peace and legal certainty. A judicial decision is always final if there is no legal remedy available to challenge the decision. Appeal and revision are available against a penalty order of the local court. If the time limit for filing an appeal has expired, the penalty judgment becomes legally binding – it is final.

When does the penalty order become legally binding??

There is only one legal remedy to challenge a penalty order – an appeal. If the objection is not lodged within the 2-week period, the penalty order is equivalent to a final judgment, as can be read in §410 Para. 3 Code of Criminal Procedure. After expiration of the objection period, the penalty order is legally binding, since it cannot be appealed. The legal remedies of appeal or revision are also excluded.

What are the consequences of a final penalty order??

In the majority of all cases, the person concerned is sentenced to a fine by the penalty order. This fine must now be paid, there is (almost) no way around it. If you cannot pay the fine, you must go to prison and serve the alternative term of imprisonment; the alternative term of imprisonment is regulated in Section 43 of the Criminal Code. About 7% of all prison inmates are incarcerated due to unpaid fines. One day's sentence corresponds to one day behind bars, so anyone sentenced to 60 day's sentences must trade in their freedom for 60 days. However, the alternative custodial sentence can be averted at any time by payment. In such cases, it is advisable to agree on payment in installments with the public prosecutor's office at an early stage. In individual cases, the fine can also be replaced by work performance.

The last possibility to avert or postpone the punishment is a petition for clemency, which has to be addressed to the Senate Administration for Justice in case of a Berlin penalty order. In practice, the hurdles for a successful request for clemency are quite high, there must already be significant reasons, z.B. if the person concerned has to take care of sick family members and other care cannot be ensured.

No rule without exception

The legal force of the penalty order, i.e. its final non-appealability, can be interrupted under certain conditions:

The 2-week period for the objection begins after its delivery. By its nature, this period can only run if actual service has been made. Here it is not uncommon for delivery errors to occur. According to the Federal Supreme Court (BGH), a document is only considered to have been served when the addressee has had the opportunity to take note of it (BGH NJW 78, 1858). However, anyone who has moved – this is more common in Berlin than elsewhere – but the penalty order was still addressed to the old registration address, cannot take note of the penalty order. In this respect, the objection period does not (yet) run either.

If an effective service has taken place, there is still the possibility of reinstatement in the previous status. Who has missed the objection period without fault, because he was in the hospital, for example, is granted on application reinstatement in the previous state, the objection can then be made up. The application for reinstatement is itself subject to a time limit and requires a detailed statement of reasons. It is highly recommended to entrust a criminal defense lawyer with the application for reinstatement of the fine.

The last possibility to proceed against the legally binding penalty order is a retrial according to §359 StPO (Code of Criminal Procedure). The aim of reopening is to reopen criminal proceedings that have already been concluded in order to eliminate miscarriages of justice. Thus, the interest in a correct and fair decision is in the foreground, the legal force of the penalty order recedes behind it. The most common case is the submission of new facts and evidence. Therefore, facts and evidence must be presented that have not yet been taken into account in the penalty order proceedings, e.g., the following facts.B. a new witness or the confession of a third party.

You are confronted with a legally binding penalty order? The hurdles to appeal against a final penalty order are very high in practice! As a criminal defense lawyer, I am happy to help you evaluate your chances of success.

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