A penal order is intended to provide a quick and uncomplicated way to address “minor offenses” and mid-level criminal activities. This process not only saves courts and prosecutors the effort of a full trial but also benefits the accused.
Another advantage: You do not have to sit on the defendant’s bench in a courtroom or face the public scrutiny of a trial. Additionally, the case is resolved quickly.
However, many people underestimate that a penal order is not just a simple fine. It is not a mere monetary penalty that disappears once paid. Instead, a penal order is legally equivalent to a conviction by a criminal court, meaning you are officially convicted.
This means: If the penalty exceeds 90 daily fines or if you have previous convictions, the offense will be recorded in your criminal record. Moreover, all penalties—regardless of amount—are recorded in the Federal Central Criminal Register, even those under 90 daily fines. A common misconception is that one is only considered convicted after a second offense or a penalty exceeding 90 daily fines; however, this only affects what appears in a standard criminal record extract. The penal order remains listed in prosecutorial case files and police records for a long time.
Furthermore, because penal orders aim to expedite the legal process, courts and prosecutors often conduct only a superficial review of the case. In many instances, cases are closed with a penal order without thoroughly assessing whether the offense is legally provable, whether all evidence has been examined, or even whether the conduct is truly punishable.
Finally, the amount of the daily fine is only estimated by the court/prosecutor. Often, this estimation is not in the defendant’s favor.
Advantages of a Penal Order
Despite its downsides, there are benefits to accepting a penal order. Many defendants prefer a swift resolution, as an ongoing criminal case can be extremely stressful, bringing uncertainty and fear about the potential outcome.
Additionally, accepting a penal order allows you to avoid a public trial, which is a major consideration for those facing potential media exposure or reputation damage due to the allegations.
Moreover, the limited investigation in penal order proceedings can be an advantage if there are additional undiscovered offenses. If you indicate your willingness to accept a penal order, the authorities may conclude the case quickly—preventing further investigations into related or undiscovered matters. In many cases, these offenses may later be barred from prosecution under the “ne bis in idem” principle.
Disadvantages of a Penal Order
On the other hand, contesting a penal order through an appeal often results in a significant reduction in penalties. This is due to both evidentiary and substantive legal issues that are often overlooked in penal order proceedings. Courts frequently impose a lower sentence than what the prosecution initially requested.
Furthermore, the amount of daily fines is often overestimated by the prosecution. In an appeal hearing, factors such as financial obligations, debts, and actual net income can be presented, often resulting in a reduction of the imposed fine.
Most importantly, in many cases, a penal order can be replaced by a case dismissal through skilled legal negotiation. Unlike a penal order, a dismissed case does not equate to a conviction, and the defendant remains legally innocent. One high-profile example of such a negotiated dismissal is former Formula 1 CEO Bernie Ecclestone.
Summary:
Deciding whether to challenge a penal order or accept it requires a thorough review of the case files and legal expertise.
If the goal is to conclude the case through a penal order, hiring an attorney early in the investigation is crucial to influence the outcome.
Conversely, deciding to appeal a penal order should be made only after carefully weighing all pros and cons. While appeals often result in lighter penalties, in rare cases, the penalty could be increased if the appeal is not limited to fine reductions (“Verbot der Schlechterstellung”).
Additionally, in penal order cases, the prosecution assumes the defendant is pleading guilty, which influences the penalty calculation. If an appeal is pursued with the goal of full acquittal, this assumption no longer applies.
However, practical experience shows that in the majority of cases, the outcome after appealing a penal order is significantly better. Given the overwhelming caseload of courts and prosecutors, they are often willing to negotiate more favorable terms, whether by reducing the penalty or even dismissing the case altogether.
Consulting a defense attorney is highly recommended to evaluate the best course of action. An experienced lawyer can review the prosecution’s evidence, assess whether a conviction would have been possible in a full trial, and determine whether a dismissal or a better outcome could be achieved through negotiations.
In many cases, a lawyer can negotiate a reduction in penalties or a dismissal without going to trial through discussions with the court and prosecution. This may even lead to withdrawing the initial penal order and issuing a revised one with significantly reduced penalties.
In any case, it is essential to have a penal order reviewed by a specialized attorney. An appeal can always be withdrawn before the hearing, meaning there is no risk if you later decide to accept the original penal order. Additionally, the appeal can be limited to contesting the penalty amount, which almost always leads to a reduced fine.
Critical Time Limit:
The deadline to appeal a penal order is extremely short—only 2 weeks. If this deadline is missed, the penal order becomes legally binding, and no further action can be taken against it!
For this reason, you should seek advice from a criminal defense lawyer immediately upon learning of an investigation or, at the latest, upon receiving a penal order!
