Penal order received: objection, service and transition to ordinary proceedings

Section 491 StPO concerns proceedings before the district court and before a single judge of the regional court. On an application by the public prosecutor, the court may decide without a prior main trial if the statutory requirements are met.

These requirements include, among other things, that the case concerns a misdemeanour and that the accused was questioned about the allegation. After being informed of the consequences, the accused must have expressly waived a main trial. The investigation results and the accused's account must also be sufficient to assess the decisive issues of guilt and sentence.

A penal order may impose only a fine. If the accused is represented by defence counsel, it may also impose a conditional custodial sentence of no more than one year. The penal order replaces the main trial only provisionally and on the condition that no admissible objection is lodged.

The penal order is served on the accused and, where applicable, defence counsel. The victim and, where applicable, the victim's representative also receive it. It is served together with the criminal application in the manner referred to in section 83(3) StPO. The concrete service process is therefore decisive for the start of the period.

The document must include, among other things, the court and judge, the accused's personal details, the finding of guilt and the facts accepted as proven. It must also state in keywords the circumstances relevant to sentencing and, where applicable, to setting the daily rate.

The information about the right to object is particularly important. It must clearly state that the penal order will become final with the effects of a conviction and will be enforced if no objection is lodged in time. The penal order, annexes, envelope and proof of service should therefore be kept together.

The public prosecutor, the accused and the victim may lodge a written objection with the court that issued the penal order within four weeks of service. The period begins with service, not with the date printed on the document.

For formal validity, it is sufficient for the document to make the intention to object clear. Detailed reasons are not required to preserve this form. For the further preparation, however, the penal order, criminal application and file must be reviewed in full.

The court rejects an objection as inadmissible if it is late, was lodged by a person who is not entitled to object or if the person waived the right to object. Proof of when and with which court the objection was lodged is therefore part of the case documentation.

If the objection is admissible, the court must order a main trial. The case therefore moves from the written mandate procedure into an ordinary hearing under the applicable procedural rules.

The objection is the step that gives the accused a judicial discussion of the allegation and evidence. For the further preparation, the content of the penal order, the criminal application and the results of the investigation must be brought together.

If the objection is rejected as inadmissible, the consequence of a valid objection does not arise. A complaint under section 87 StPO to the appellate court may be available against the rejection decision. The complaint has suspensive effect.

If no objection is lodged, or if an objection is rejected as inadmissible, the penal order has the effect of a final judgment. This consequence applies even if the accused continues to dispute the allegation.

The penal order is then enforced under the provisions of Part 19 of the StPO. Service, expiry of the period and the content of a rejection decision must therefore be kept separate and documented precisely.

Anyone receiving a penal order should organise the documents promptly and base the next step on the concrete file. The key documents are the penal order, criminal application, service date and any subsequent court letters.