CONSULTATION ON PENALTY ORDERS
CONSULTATION ON
PENALTY ORDERS
Our Penal Order Project
The Association of Berlin Criminal Defense Lawyers e.V. initiated a legal counseling project in spring 2019 in collaboration with the Law Clinic – Practice of Criminal Defense at the Free University of Berlin. The goal of the project is to provide an easily accessible yet partisan counseling service. At the same time, it serves as a training project to teach students legal thinking and practice.
The background of this ambitious project is as follows:
The penal order procedure, which plays a significant numerical role in practice, is considered by the judiciary as a highly efficient way to conclude proceedings and issue numerous judgments without burdening the scarce resources of the judiciary, such as courtrooms, security personnel, judges, prosecutors, clerks, and police witnesses.
However, this efficiency in criminal prosecution is contrasted with the individual's right to be heard. Penal orders are judgments in absentia that, except in cases where individuals deliberately avoid hearings, would normally be inadmissible. They represent a direct implementation of police investigations into a criminal sanction drafted by the prosecution and are equivalent to a judgment following a regular trial.
Penal orders are intended to fulfill the same purpose of appeal as judgments but carry far-reaching consequences: the imposed penalties are entered into the Federal Central Register and can have life-altering implications. They appear in police clearance certificates, potentially destroying professional careers. For example, DHL drivers are required to present a police clearance certificate every six months, and teachers risk being banned from their profession for certain offenses—such as the one-time possession of small amounts of cannabis—under Section 25 of the Youth Employment Protection Act.
Rare Objections
The reasons why many recipients of penal orders do not file objections remain unknown, as there are no surveys, reliable studies, or statistics on the matter. However, discussions with the prosecution office responsible for enforcement suggest that intellectual and linguistic barriers might play a role. This is particularly evident during compulsory enforcement against assets: when individuals are verbally informed by enforcement officers about options such as installment payments or community service, a fundamental lack of understanding often becomes apparent.
Especially striking are cases where an arrest is imminent to enforce a substitute prison sentence, and individuals are given a final opportunity to avoid this by paying the fine. In such situations, it often emerges that no preparations were made, such as saving money or taking out a loan. Some individuals fail to open their mail, while others do not understand the contents of the penal order because it was not translated. Linguistic deficiencies could theoretically be addressed through automated translations or early recognition during police interrogations, but this is often overlooked. Furthermore, in penal order proceedings, an interrogation of the accused is not mandatory.
Another reason why rights such as access to case files, filing an objection, filing a limited objection, reinstatement, installment payments, or community service are not utilized could be economic in nature. Fear of additional costs deters many from exercising these options. Additionally, penal orders often function as a form of procedural agreement in practice: individuals frequently accept them to avoid potentially harsher penalties in a trial or the burdens of a lengthy and uncertain legal process.
This multitude of factors leads to penal orders often resulting in swift but not always substantively fair decisions that become legally binding.
The Legal Counseling Project
Against this backdrop, the Association of Berlin Criminal Defense Lawyers e.V., in collaboration with the Law Clinic of the Free University of Berlin under the direction of Prof. Dr. Carsten Momsen, launched a legal counseling project. Initially supervised by members of the Association of Berlin Criminal Defense Lawyers e.V., Hannes Honecker and Cäcilia Rennert, the project began in April 2019.
To facilitate the project, the association rented suitable premises at Köpenicker Str. 175, 10997 Berlin, ensuring access to a low-threshold yet partisan legal counseling service.
Free Counseling
Initially, recipients of penal orders are to be provided with free counseling on two afternoons per week, each session led by a lawyer in the presence of one or two students from the Law Clinic. Even in the first consultation, defense counsel can provide information about various legal options without needing access to case files, such as reinstatement in missed deadlines, reducing the daily rate in cases of incorrect income estimates, installment payments, or community service.
Students participating in this project gain their first practical experience in criminal defense, engaging actively in the counseling sessions. This enables them to develop their legal reasoning skills. Alongside quality management, the project aims to conduct empirical evaluations of its outcomes in the long term. The project is academically supported by Prof. Dr. Carsten Momsen and his team.
The project is community-oriented and aims to spark a legal policy debate. It provides recipients of penal orders with access to the legal system, which is often hindered or denied in written proceedings. After the counseling session, a decision is made on whether to file an objection to the penal order—initially by the affected individuals themselves using provided forms—and whether to pursue a trial. Considerations include the absence of a prohibition against worsening (the possibility of harsher legal consequences) and potential costs.
Currently, defense counsel is only mandatory in cases involving imprisonment, requiring the appointment of a public defender. This project could provide empirical evidence to support expanding mandatory defense to other cases. Whether the project will lead to an increase in objections and resulting trials remains to be seen. However, it has the potential to improve individuals' understanding of their rights—through translation services or oral counseling by a legal expert—something the purely written procedure cannot and may not even intend to provide.
The counseling facility focuses on providing legal guidance before formal legal representation begins. The counseling is free of charge unless it leads to a formal mandate. The Association of Berlin Criminal Defense Lawyers e.V. e. V. coordinates the organization, introduction, and training of the consulting attorneys. If counseling results in a mandate—such as filing a motion for case file access or reinstatement—a standard attorney-client relationship arises.
Since the project primarily targets financially disadvantaged individuals, its social mission plays a central role in the training of the counselors. After the counseling session, the Association of Berlin Criminal Defense Lawyers e.V. no longer influences the attorney-client relationship. However, participating lawyers agree not to accept a mandate immediately following the counseling session.
Support from the Board of the Berlin Bar Association
The Board of the Berlin Bar Association has graciously supported the legal counseling project and informed the President of the Tiergarten District Court—who, along with the enforcement division of the Berlin Public Prosecutor's Office, was introduced to the project at an early stage—about its backing.
There is justified hope that this support will encourage the Presidium of the Tiergarten District Court to continue actively promoting the project and potentially include information about the legal counseling service with every penal order. Since the project's inception, all departmental judges, clerks at the Tiergarten District Court, the Public Prosecutor’s Office, and other relevant stakeholders have been informed about the counseling offer.
Particularly high interest continues to come from the Social Services of the judiciary, as probation officers and staff in debt counseling often deal with penal order cases.
Participation in the Legal Counseling Project
Participation in the project is open to all lawyers admitted to practice in Berlin. To ensure expertise in criminal law, proof of ten hours of annual continuing education in criminal law, as required by the FAO, is required. However, a specialist certification in criminal law is not mandatory.
Interested colleagues are invited to contact the office of the Association of Berlin Criminal Defense Lawyers e.V. at info@strafverteidiger-berlin.de, providing their contact details.