Calculating the Tagessatz: how high a fine becomes and what applies if you cannot pay

The court sets the level of a Tagessatz having regard to the personal and economic circumstances of the offender. In doing so it takes as its starting point, as a rule, the net income that the offender has or could have on average in one day. It further ensures that the offender is left with at least the minimum of their income that is indispensable for living. A Tagessatz is set at not less than one and not more than thirty thousand euros (§ 40 Abs. 2 StGB).

Three points about that which are in the statute and are easily lost in online calculators.

First: the statute says "has or could have". Anyone who earns no income without a compelling reason cannot without more achieve a low Tagessatz level in that way.

Second: the offender's income, their assets and other bases for setting a Tagessatz can be estimated (§ 40 Abs. 3 StGB). Anyone who gives no information about their circumstances does not prevent the estimate but leaves it to the court.

Third: the number and the level of the Tagessätze are stated in the decision (§ 40 Abs. 4 StGB). Both figures are therefore in the judgment or in the Strafbefehl (a written court order imposing a penalty without a main hearing) and can be read there.

Whether maintenance obligations, debts or particular burdens are taken into account is decided by the court on the basis of the circumstances known to it. The statute contains no fixed formula for calculation.

The statute expressly provides a route for this. Where the convicted person cannot reasonably be expected, according to their personal or economic circumstances, to pay the fine at once, the court grants them a period for payment or allows them to pay the penalty in specified instalments (§ 42 StGB). The court can revoke the concession of payment by instalments where the convicted person does not pay an instalment in time.

Once the judgment has become final, responsibility changes. Enforcement of the sentence is carried out by the Staatsanwaltschaft (the public prosecution office) as the enforcement authority (§ 451 Abs. 1 StPO), and it is then that enforcement authority which decides on the granting of payment relief (§ 459a Abs. 1 StPO). It can subsequently alter or revoke such a decision, but may depart from it to the disadvantage of the convicted person only on the basis of new facts or evidence (§ 459a Abs. 2 StPO). Where the concession of payment by instalments falls away, it can grant payment relief afresh (§ 459a Abs. 3 StPO).

The practical core of this section is this: after the judgment has become final, an application for payment by instalments goes to the Staatsanwaltschaft, not to the court. And it has effect only if it is made.

The basis for this is not in the Strafgesetzbuch but in Art. 293 Abs. 1 EGStGB. Under it the state governments can provide by regulation that the enforcement authority permits the convicted person to avert enforcement of the Ersatzfreiheitsstrafe by unpaid work. In so far as the convicted person has performed the unpaid work, the Ersatzfreiheitsstrafe is discharged. The regulation determines how many hours of unpaid work take the place of one day of Ersatzfreiheitsstrafe. The work must be without remuneration and must not serve commercial purposes.

The conversion rate is therefore a matter of state law and is not the same in every state. For Hamburg it is governed by the regulation on averting the enforcement of terms of imprisonment served in place of a fine by community work (Tilgungsverordnung) of 11 December 2012: by performing five hours of community work, the enforcement of one day of the Ersatzfreiheitsstrafe is averted (§ 3 Abs. 1 Satz 2 of the regulation); in the cases of hardship named there, three hours suffice (§ 3 Abs. 2). According to the information sheet of the Staatsanwaltschaft Hamburg, placement runs through the specialist office for offender and court assistance; the information sheet also names a period of one week for making contact with the placement body. What counts is the letter you have received; the time limits and bodies named in it take precedence over any general account.

Under § 32 Abs. 2 Nr. 5 BZRG, convictions imposing a fine of not more than ninety Tagessätze, or imprisonment or Strafarrest (a short custodial penalty known to German law) of not more than three months, are not included in the Führungszeugnis (a certificate of conduct issued from the register on application) where no further sentence is entered in the register. The provision contains exceptions. The number of Tagessätze therefore has a significance that goes beyond the sum of money. Details are in our guide on when a person has a criminal record.