Many people assume that criminal proceedings inevitably end with an indictment and a court trial. However, this is not always the case. For certain offences and where the expected penalty is low, the public prosecutor’s office often uses the penalty order procedure to conclude proceedings quickly.
This not only relieves the burden on the courts, but also saves time and resources. However, a penalty order does not always lead to a fair outcome. Especially when the decision is based solely on the case file, innocent people may be burdened or the penalty may be disproportionately high. In this article, accused persons will learn what a penalty order means, what defence options are available, and when filing an objection may be advisable.
Are you accused? Seek criminal law support from an expert as quickly as possible. As experienced criminal defense lawyers, we have already achieved early termination of proceedings, reduced sentences, or acquittals for many clients. We are happy to assist you with an accusation and provide comprehensive advice on a possible defense strategy. Arrange an initial consultation with us at any time.
What is a penalty order?
Criminal proceedings often unfold differently than laypersons imagine. Not every criminal case ends with an oral main hearing and a judicial judgment. In the case of misdemeanours, the public prosecutor’s office may also apply for a penalty order if a fine is to be imposed. If the accused is represented by counsel, a penalty order may also impose a custodial sentence of up to one year, provided it is suspended on probation. The legal basis for this is Sections 407 et seq. of the Code of Criminal Procedure (StPO).
A penalty order is issued by a judge, upon application by the public prosecutor’s office and based on the investigation file, without a main hearing taking place. This form of expedited procedure is intended to avoid lengthy court proceedings and relieve the justice system.
For which offences is a penalty order issued?
A penalty order is only possible for misdemeanours. Typical offences for which a penalty order is generally used include, among others:
- Insult
- Trespass
- Negligent bodily harm
- Theft in less serious cases
- Drink-driving
In principle, however, circumstances relating to the accused’s personal situation are also decisive in whether a penalty order is applied for or not. This includes, for example, any prior convictions of the accused.
Serious offences, for which higher penalties are to be expected, necessarily require an oral main hearing before the court.
Penalty order: filing an objection
A penalty order is not set in stone. Incorrect or unjust penalty orders can and should be challenged. Precisely because the decision is made solely on the basis of the case file, misjudgements cannot be ruled out.
An objection to a penalty order must be received in writing by the competent Local Court within two weeks of service. The law does not prescribe a specific form; however, the letter must be signed by hand.
What are the consequences of an objection?
Depending on the type of objection, there are two different scenarios:
- Limited objection: The accused wishes to limit the objection to the legal consequences. In this case, the court reviews the sentencing and the calculation of the daily rate amount and, where appropriate, may amend the penalty order accordingly based on the submissions made.
- Full objection: If the objection is not limited, a regular main hearing will take place. The court will then hear the case in full and deliver a judgment.
When is an objection advisable?
An objection to a penalty order is particularly advisable if the allegations are unfounded or incorrect. As the proceedings take place without an oral hearing, there is a risk that decisive exculpatory circumstances will be overlooked. Anyone who is innocent or is seeking a more lenient sentence should therefore not simply accept the penalty order, but have it reviewed legally.
Other errors, such as an incorrect calculation of the daily rate amount, may also justify an objection. In some cases, limiting the objection can reduce the fine without having to revisit the facts of the case.
However, an objection also involves risks: the court may not only impose a more lenient sentence, but may also consider a harsher one. Therefore, an individual assessment by a criminal defence lawyer should always be carried out, weighing opportunities and risks carefully and developing the best strategy.
Do I need a lawyer to file an objection?
From a purely formal perspective, it is not necessary to instruct a lawyer to file an objection. In theory, the accused can draft and submit the letter themselves. Proceedings before the Local Court are also not subject to mandatory legal representation.
However, in most cases it is advisable to consult an experienced criminal defence lawyer. A lawyer can not only realistically assess the prospects of success of an objection, but also develop an appropriate strategy. In addition, there is a risk that a layperson will assess the facts differently than a criminal defence lawyer, which may result in a harsher sentence after an objection is filed.
Observe the deadline: file an objection within two weeks
The deadline for filing an objection is only two weeks from service of the penalty order. If this deadline is missed, the penalty order becomes final and can no longer be challenged. It is therefore important to seek legal advice immediately upon receiving the penalty order. Please contact our law firm as soon as possible if you wish to file an objection to the penalty order.
Important: When contacting us for the first time, please be sure to point out that the deadline is already running. Only then can we ensure timely processing.
How does a lawyer assist with an objection to a penalty order?
If criminal proceedings have been initiated against you, it is advisable to seek legal assistance at an early stage. An experienced criminal defence lawyer can review your options, develop an appropriate defence strategy, and inform you about the possible consequences.
At the latest once a penalty order has been served, accused persons should not hesitate to instruct a lawyer—especially if they wish to contest the allegations. A criminal defence lawyer analyses the prospects of success of an objection and weighs the opportunities and risks.
Legal assistance includes not only the review of the penalty order, examining evidence and applying for access to the case file, but also court defence in the event of a main hearing. A strategic approach helps ensure that the objection offers the best possible prospects of success.
Legal support is also advisable even after an objection has already been filed. If, in the course of the proceedings, it becomes apparent that the prospects of success are low or that significant risks exist, the objection may be withdrawn under certain conditions. A legal assessment of the situation is essential here.
Do not make hasty decisions and do not contact the investigating authorities or the court on your own before obtaining legal advice. This applies in particular if you have received a summons from the police or the public prosecutor’s office.
As experienced criminal defense attorneys, we have already achieved early dismissal of proceedings, reduced sentences, or acquittals for many clients. We are happy to provide legal representation if you face an accusation and will advise you comprehensively on a possible defense strategy. Schedule an initial consultation with us at any time.
