Pro Bono Counseling in Penal Order Proceedings

Pro bono legal advice project on penal order proceedings by the Berlin Association of Defense Attorneys and the "Law Clinic – Practice of Criminal Defense" at Free University Berlin

In cooperation with the Law Clinic of Free University Berlin, the Berlin Association of Defense Attorneys is launching a legal counseling project for those who receive penal orders. The aim is to create a low-threshold and at the same time biased advisory service. The project sees itself as well as an educational project to train students in legal thinking and partial counseling.

The background to this ambitious project is the following: Penal order proceedings are used in high number and are extraordinarily important in practice as they are an extremely effective way - from a purely judicial point of view - of completing proceedings and producing a large number of judgments without straining the resources of the judiciary, i.e. rooms, security guards, judges, public prosecutors, protocol staff, and police witnesses. The efficiency of law enforcement is hampered by the individual's right to a fair hearing. Penal orders are judgments in absentia that are otherwise inadmissible, unless the person concerned withdraws from the trial without authority. Penal orders are the direct transformation of police investigations into a criminal sanction drawn up by the public prosecutor's office. The penal order is equivalent to a verdict after criminal proceedings; penal orders should have the same appeal function as verdicts. Penalties are also entered in the Federal Central Register and can destroy a person's working existence because the penalty appears in the police certificate of good conduct. Parcel service drivers, for example, must present a police clearance certificate every six months; teachers must not be caught once when buying a few grams of cannabis that can no longer be employed - otherwise there is a threat of a ban on employment under § 25 of the Youth Employment Protection Act.

There is no valid knowledge why a large number of recipients of an penal order do not file an appeal. There are no interviews, surveys or figures on this subject. But if one asks the public prosecutor's office it appears as intellectual and linguistic deficits indicate low rates of recipients of penal orders challenging them. Impressive are cases in which the arrest is to take place in order to execute the substitute custodial sentence and the persons concerned are given the opportunity for the last time to avert execution by paying the fine. It is then regularly established that the persons concerned have not taken any precautions by saving or by taking out loans.

In addition to unopened mail, there are cases in which the content of the penalty order is simply not understood because it has not been translated. The lack of linguistic requirements can be counteracted by an automatic translation into the language of the country of origin, if necessary, or if language deficits became known during police interrogation. In a large number of cases, however, this is unknown. In addition: the defendant does not have to be questioned at all in the criminal order proceedings.

A further, not inconsiderable reason for unused rights despite a read and understood penalty order will be an economic one. The waiver of rights - inspection of files, objection, limited objection, reinstatement, payment by instalments, work - can be traced back to the reluctance to incur costs. In addition, the penal order is in fact one of the most significant forms of a specific procedural agreement/plea bargaining. Penal orders are therefore often accepted in order to avoid a more severe sanction threatening in the main proceedings and generally considered likely, or to avoid the burdens of a main proceedings of uncertain duration and outcome. There are therefore a number of reasons which may lead to a situation in which, as a result of orders of punishment, decisions are issued quickly but are not always legally binding.

For this reason, the Berlin Association of Criminal Defenders, in cooperation with the Law Clinic at FU under the direction of Professor Carsten Momsen, has developed a legal advice project, which is supervised by Hannes Honecker and Cäcilia Rennert on behalf of the Berlin Association of Defense Attorneys and will soon start. The Berlin Association of Defense Attorneys has rented a suitable location for the project in Exerzierstraße (Berlin-Wedding).

On initially two afternoons per week, the defendants will be advised free of charge by a lawyer in the presence of Law Clinic students. Even in the first meeting, the defense can provide advice on the possibilities of reinstatement in the event of missed deadlines, reduction of the daily rate in the event of incorrect valuations, payment by instalments and work performance without having to inspect the files. Within the framework of the legal advice project, the students should learn in practice to deal with criminal defense in a partisan manner and take part in these consultations. Thus, they are trained in legal thinking. In addition to quality management, an empirical evaluation is to follow in the longer term. The project will be scientifically accompanied and evaluated by Carsten Momsen and his colleagues.

 

Those affected should be able to gain access to justice which is often made more difficult, if not denied, by the written procedure. Only after the consultation can and will a decision be made as to whether - initially by the persons concerned themselves on the basis of forms to be handed over - an appeal against the order of punishment should be filed and lead to a court hearing; a step which must be considered against the background of the lacking prohibition of deterioration (the possibility of aggravation of the legal consequence) as well as against the background of the costs. Up to now, a defense has only been necessary in cases where imprisonment has been imposed, i.e. only than the defense is assigned to a public defender. It is conceivable in the future that the project, once set in motion, will be able to present empirical material to support the legal policy demands made by the criminal defense associations for an extension of the institute of compulsory public defense.

It remains to be seen whether the project will lead to an increase in the number of appeals procedures. In any case, however, it is appropriate to create an idea of one's own rights through translation services, sometimes solely through oral consultation by a lawyer, which the purely written procedure cannot and presumably also does not want. The counselling institution should hook in prior to the establishment of the mandate and clarify the legal possibilities; the counselling is free of charge until the establishment of a mandate that goes beyond mere counselling. The organization, the introduction and the training of the colleagues carrying out the consultation are carried out by the Association of Berlin Criminal Defenders.

As soon as the consultation leads to a mandate - be it by an application for inspection of files, be it by an application for reinstatement or the like - a classical mandate relationship is established. Since the project is primarily aimed at the financially weaker legal advice seekers, the social claim of the project will play a role in the training. The Association of Berlin Defense Attorneys will then no longer have any influence on the form of client relationships after the consultation, but the advising lawyers undertake not to enter into any mandate with the person seeking advice in the consultation or after the conclusion of the same.

The board of the Berlin Bar Association supports the legal advice project and has already informed the president of the Local Court at Berlin Tiergarten, to whom the project as well as the enforcement department of the Berlin public prosecutor's office had already been presented at an early stage, about their support. There is the justified hope that this statement of support will lead to the Presidium of the Local Court advertising the project and if necessary even enclosing information on the legal advice project with each penal order.

Interested lawyers may contact the office of the “Vereinigung Berliner Strafverteidiger e.V.” at info[at]strafverteidiger-berlin.de. Interested participants of previous Law Clinic classes please contact us at “lawclinic[at]zedat.fu-berlin.de”.

• Project announcement in freispruch, members newspaper of the Defense Attorneys Association
• Project announcement in the Berlin Bar Association's Kammerton