Indictment and Penalty Order
Indictment and Penalty Order
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich
An indictment is a crucial document in any criminal case. It is the official charge from the prosecution and forms the basis for the main proceedings in court. The indictment details the charges, sets out the legal basis and lists evidence that will be used against you. Once you receive an indictment, a critical phase of the case begins – now is the time to act quickly.
As experienced criminal defense lawyers, we carefully review the indictment to uncover weaknesses and develop an effective defense strategy. We ensure that your rights are protected and are at your side at every stage of the process. Whether it’s preparing a statement, challenging evidence, or taking your case to court, we’ll fight for you and work to get the best possible outcome.
Trust us during this crucial phase. The sooner you get involved, the better we can build your defense. Contact us now!
Indictment – Penalty Order
If an indictment or a penalty order is issued, urgent action is required!
The outcome of the criminal proceedings is still open!
With the delivery of an indictment or a penalty order, important deadlines begin to run, within which effective legal options can and should still be exhausted.
Often the outcome and further course of the criminal proceedings can still be decisively influenced at this point and, if necessary, drastic disadvantages can be averted or at least mitigated.
Important: In cases of so-called necessary defense, the court can set a (usually very short!) deadline for appointing a defense attorney when the indictment is delivered. You should definitely hire a criminal defense attorney of your choice within this period – otherwise the court will appoint a public defender, even against the client’s will!
Received a criminal order: appeal or not?
Important: If you receive a criminal order, you should seek legal advice immediately. You only have 2 weeks (from the time it arrives in your mailbox) to file an objection and thus avoid or mitigate a conviction.
What many people underestimate is that the penalty order is not a fine, but a criminal conviction with the consequences of a criminal record being entered in the Federal Central Register – which also threatens an entry in your certificate of good conduct.
Accordingly, if in doubt, you should definitely lodge an objection to avoid a legally binding conviction; after the two-week period has expired, you can no longer make an objection, but you can withdraw it without consequences until the court hearing!
However, in most cases, whether and to what extent an objection to a penalty order is “worthwhile” requires a qualified analysis of the files by a lawyer experienced in criminal law. Depending on the individual case, a penalty order procedure can be disadvantageous or advantageous:
Advantages: You do not have to sit in the dock in a courtroom and face the public at a main hearing. In addition, the criminal proceedings are concluded quickly, and the legal consequences are clear, so there are no uncertainties.
A penalty order can therefore also be the result of criminal investigations sought by the defense. Unlike in a court hearing, negotiating a “point penalty” with the public prosecutor’s office in a penalty order procedure is possible without any problems if the requirements of the penalty order procedure are met.
Disadvantages: Courts and public prosecutors save time and effort by issuing a penalty order, which means that cases with poor or unclear evidence are often “settled” with a penalty order without really checking exhaustively whether the crime can be proven in court or whether the specific facts are even punishable.
The amount of the fine to be paid (daily rate) does not necessarily have to correspond to the actual circumstances, as this is only estimated in the penalty order. This estimate can be both advantageous and disadvantageous for the accused.
When is it worth filing an objection?
Many affected people shy away from the risks of filing an objection and unfortunately also overlook the fact that an objection to the penalty order can often significantly reduce the sentence imposed.
Whether and to what extent it is “worthwhile” to appeal against a penal order or whether there is even the possibility of ending the criminal proceedings by means of a penal order instead of a court hearing requires a qualified analysis of the files.
Attention: The deadline for appealing against a penal order is extremely short and is only 2(!) weeks. If the deadline is missed through negligence, the penal order becomes legally binding and action against it is no longer possible! As the person affected, you should therefore definitely lodge an appeal within the deadline or have a lawyer do so – especially if the allegations are incorrect, of course!
Experience in practice shows that in the majority of cases the result after an appeal against a penal order is significantly better. This is because the penal order is a conviction based on the files, so that the arguments of the accused have often not (yet) been adequately considered. The amount of the daily rates to be paid can also be minimized by appealing against the penalty order: In this way, all circumstances such as debts, maintenance obligations, actual net salary, etc. that were not taken into account in the penalty order can be presented, so that the amount of the fine must then be set significantly lower.
Even if the allegations are true, the punishment can be significantly reduced through compensation for damages or a perpetrator-victim settlement. It is not uncommon for a so-called discontinuance of the criminal proceedings to be achieved instead of a penalty order through skilled negotiation and argumentation skills. The advantage: a discontinuance of proceedings – unlike a penalty order – is not the same as a judgment, rather the accused is still considered innocent after the proceedings have been discontinued (even if this is in return for a hefty fine) (no previous conviction, no entry in the certificate of good conduct, etc.).
Overall, if there are good arguments against the conviction or at least the legal consequences and these are asserted by the defense attorney in an appropriate manner, the public prosecutor and the court are often willing to “accommodate” the defendant – be it in terms of the amount of the sentence or by discontinuing the proceedings, with or without a (financial) penalty.
In any case, we recommend that you always have a penal order reviewed by a lawyer experienced in criminal law, especially since an objection to the penal order can be withdrawn up until the start of the oral main hearing without any further risks (in which case the penal order simply remains as it was issued). The objection can also be limited to the amount of the penalty at any time, which almost always results in the penalty being reduced by the court – especially if the defense attorney has also negotiated and made compensation for the damage at the same time.
Received an indictment: What to do?
Unfortunately, receiving an indictment means that the investigation has not developed in the affected party’s favor to date: An indictment is only made if the The public prosecutor is sufficiently convinced that a conviction will be made in court proceedings and that the guilt is so serious that it cannot be punished with milder means such as discontinuing proceedings (e.g. in return for a fine) or a written penal order.
On the other hand, from a legal point of view, the indictment is a purely prognostic decision based on a preliminary assessment of the facts by the public prosecutor. The filing of the indictment says nothing about how thoroughly the accused was investigated and whether a court hearing will actually result in a conviction or the sentence sought by the public prosecutor. Accordingly, around 20% of all indictments do not end in a conviction. In addition, in many cases the legal assessment can also change to the accused’s advantage: for example, if the accused is convicted “only” of bodily harm and not of dangerous bodily harm as charged.
Thus, even if an indictment is made, it is generally not too late to turn things around. After all, due to the police and judiciary being overworked, investigations are often conducted very superficially and one-sidedly, without adequately checking whether the crime can be proven in court, whether all evidence has been exhaustively investigated or whether the facts of the case are even punishable in accordance with the alleged violation of the law – not to mention the lack of physical evidence or contradictory witness statements.
It is not uncommon for divergent legal problems to arise from the underlying case, which can be used as part of a promising defense strategy tailored to the case. As experienced defense attorneys, we know very well that prosecutors like to “take refuge in the prosecution” when dealing with an accused who has not previously been defended, in order to leave complex legal questions and substantive disputes to the judge. This is because the principle of “in dubio pro reo” – in case of doubt, for the accused – does not apply to the public prosecutor’s office, neither to legal nor to factual doubts (i.e. even when, for example, it is one person’s word against another’s!). Therefore, unlike a court, the public prosecutor can also bring charges even if there are doubts about the facts or contradictory evidence and leave further clarification to the main court hearing (and thus to the responsible judges).
From a procedural point of view, legal problems can often arise that ultimately lead to a completely different result. Therefore, despite charges being brought, there are still various ways to avoid (public) court proceedings, either because the public prosecutor withdraws the charges or the court does not even open the proceedings.
Likewise, in cases where the accused has not yet made any statements (or not made any comprehensive statements) to the police or public prosecutor, it should not be overlooked that his statement can very often allow a completely different assessment of the facts, especially when it comes to questions of intent, which is a prerequisite for a large part of the criminal law in order to be punishable and convicted. (Ignorance sometimes protects against punishment!)
All of this also explains why, despite the prosecutor’s adequate prognosis of conviction, around 20% of all charges still do not end in a conviction (but in acquittal or discontinuance of proceedings) and why the court, before deciding whether to accept the prosecutor’s charges at all, gives the accused another opportunity to comment on the indictment and, if necessary, to request the collection of individual exculpatory evidence (so-called interim proceedings).
Thus, despite charges being brought, there are still various ways to avoid (public) court proceedings, either because the charges are withdrawn by the public prosecutor or the court does not even open the proceedings.
If charged, the penalty is imprisonment
However, receiving an indictment also means: The responsible public prosecutor considers the allegations to be so serious after the police investigation has been completed that the criminal proceedings should be discontinued (e.g. in return for a fine). or a penalty order (which would at least allow the imposition of a fine or a suspended prison sentence of up to 1 year) is not an option. (see above)
An indictment therefore usually means that the public prosecutor’s office still wants to obtain a prison sentence – with or without probation – even in the event of a full confession.
A thorough study of the indictment can provide initial information about the threatened sentence. It is important to first check which court the indictment was brought to: the district court as a single judge, the lay judge’s court or the regional court;
In the case of indictments brought to the district court, the public prosecutor’s office assumes that the maximum sentence to be imposed is two years’ imprisonment if the indictment is brought to the single judge, and that the sentence to be imposed is up to four years’ imprisonment if the indictment is brought to the regional court!
In the case of an indictment brought to the regional court, the large criminal chamber decides with different compositions, usually with two professional judges and two lay judges. In the event of a conviction, the public prosecutor’s office already faces a prison sentence of between four and fifteen years!
However, there are also exceptional cases in which the public prosecutor considers a public main hearing before a court to be essential, without seeking a particularly high sentence. On the one hand, this is the norm for young people and adolescents under 21 years of age. But even with defendants who have a “relevant” previous conviction (for example, if they have already received a penal order for a similar offence), the public prosecutor can seek a main hearing as a better deterrent, even if the punishment could still be in the range of fines, at least if they confess. It is also possible that the charges are mainly directed against co-defendants and that the defendant has thus been “caught” without being “hanged”. Finally, in certain constellations, the public prosecutor can bring charges to the regional court for reasons of victim protection without seeking an exceptionally high sentence.
A look at the accompanying letter from the court is also informative. If you are asked to appoint a public defender, then the matter is usually very serious. In principle, there is no obligation to be represented by a lawyer in criminal proceedings – at least not in the district court. However, the situation is different if a prison sentence is threatened; if the preliminary assessment leads to a prison sentence of significantly more than 6 months in the event of a conviction, then the involvement of a defense attorney is required by law (hence the name public defender). So if the court intends to appoint a public defender at the same time as serving the indictment, then this is not done out of kindness, but rather out of legal obligation. In these cases, in the event of a conviction, a longer prison sentence is generally threatened!
Can you still avoid court proceedings despite being charged?
In theory, there are two ways to avoid public court proceedings despite the prosecution filing charges:
Until the court decides whether to open proceedings based on the prosecution’s charges, the prosecution has the option of withdrawing charges at any time. However, once the court has opened proceedings, this is no longer possible!
This means that after receiving the indictment and until the court decides to open the main proceedings, you have the option of influencing the prosecution to withdraw the charges. In particular, if the charges subsequently prove to be unfounded because, for example, new evidence or opposing legal arguments (allowing for a different legal basis for assessment) are presented or the accused even makes a first admission that allows a completely different assessment of the facts, there are reasonable prospects of success in having the charges withdrawn.
The same applies if further investigations are to be carried out or because the proceedings are to be concluded in another way. What many people do not know is that an agreement (so-called deal) can be reached between the public prosecutor and the accused during the preliminary investigation, but also in the so-called intermediate proceedings, with the aim of discontinuing the proceedings (e.g. in return for a fine, Section 153a of the Code of Criminal Procedure) or applying for a penal order.
If, after the charges have been brought, a confession or partial admission is made, compensation (keyword: perpetrator-victim compensation) and/or a substantial fine is offered, then the chances of revising the public prosecutor’s opinion and obtaining a withdrawal of the charges are not bad. Above all, because the judiciary and in particular the public prosecutor’s offices are chronically overburdened, the latter are often “grateful” if they can save themselves a complex court case and the time and effort of an intensive examination of the case by concluding the proceedings in a different way.
But be careful: the period between delivery of the charges and the decision on the opening of the main proceedings is usually very short (between 1 and 2 weeks!). It is only during this time that the public prosecutor’s office can withdraw the charges! Because if no statement is made by then, in the vast majority of cases the court will admit the charges to the main hearing unchanged, and withdrawal of the charges is then no longer possible.
The court can decide not to admit the prosecution’s charges to the main hearing, or only to admit them in part, and thus reject the charges in full or in part. This possibility exists in particular if the accused is not sufficiently suspected of the crime he is accused of to be able to provide evidence of the crime in accordance with the principles applicable to the probability of conviction. In legal practice, this can be observed particularly when the basis for suspicion that can be derived from the charges and the files appears to be too meager and the accused either remains silent or there is a denial by the accused that refutes the charges, which is plausible and cannot be refuted based on the files.
But even if the act is not punishable in terms of the elements of the offence or is not punishable due to the intervention of justification or excuse, the opening of the main proceedings can be refused for this reason – the same applies if, for factual or legal reasons, the procedural requirements cannot be proven with certainty: A procedural requirement may not be met, for example, if the alleged offender has not filed a necessary criminal complaint or if the accused act has already expired.
However, the chances of success in avoiding a public court hearing even after charges have been brought are almost always tied to the lawyer’s negotiating skills and profound legal expertise. In order to revise a decision once made by the public prosecutor, really viable arguments must be put on the table and, not infrequently, persistent persuasion work must be carried out.
