Einspruch against a Strafbefehl: two weeks, and what is possible afterwards

The two weeks run from service, not from the day on which you read the document. The provisions of the Zivilprozessordnung, the German Code of Civil Procedure, apply accordingly to the procedure for service (§ 37 Abs. 1 StPO). Where handing the document over cannot be carried out, it can be placed in a letterbox belonging to the dwelling or to the business premises; with that it counts as served, and the person serving it notes the date on the envelope (§ 180 ZPO).

For that reason a time limit can expire without the recipient knowing about the service: while travelling, for instance. Anyone who comes back and finds the envelope in the letterbox may have no two weeks left, but no time at all. The envelope with the note of service should be kept.

The Strafbefehl itself contains an instruction about the possibility of an Einspruch, about the time limit and the form, together with a notice that the Strafbefehl becomes final and enforceable in so far as no Einspruch under § 410 StPO is lodged (§ 409 Abs. 1 Satz 1 Nr. 7 StPO).

This is the point most easily overlooked in this decision. In the Berufung, the appeal on the facts and the law, a prohibition of a change for the worse applies: the judgment may not be altered to the disadvantage of the defendant in the kind or the level of the legal consequences of the offence where only the defendant, or the Staatsanwaltschaft (the public prosecution office) in their favour, or their statutory representative has lodged the Berufung (§ 331 Abs. 1 StPO). That provision concerns the Berufung.

For the proceedings following an Einspruch against a Strafbefehl a different rule applies: § 411 Abs. 4 StPO. Under it, in giving judgment the court is not bound by the ruling contained in the Strafbefehl in so far as an Einspruch has been lodged. The judgment can therefore also turn out less favourably than the Strafbefehl.

An exception is governed by § 411 Abs. 1 Satz 3 StPO for one special case: where the defendant has limited their Einspruch to the level of the Tagessätze (daily units) of a fine that has been imposed, the court can decide by order without a Hauptverhandlung, the main hearing, with the consent of the defendant, of the defence lawyer and of the Staatsanwaltschaft; the ruling in the Strafbefehl may then not be departed from to the disadvantage of the defendant. Against that order a sofortige Beschwerde, an appeal that must be lodged within a fixed short period, is admissible.

Statements about prospects of success are not possible at this point. What an Einspruch achieves depends on the state of the evidence.

The charge and the Einspruch can be withdrawn up to the pronouncement of the judgment at first instance (§ 411 Abs. 3 Satz 1 StPO). § 303 StPO applies accordingly (§ 411 Abs. 3 Satz 2 StPO): where the decision is taken on the basis of an oral hearing, withdrawal after the start of the Hauptverhandlung is possible only with the consent of the other side (§ 303 Satz 1 StPO).

This possibility forms part of the assessment. Where Akteneinsicht shows that the Einspruch does not improve the position, withdrawal is an orderly way back.

Where someone was prevented through no fault of their own from observing a time limit, Wiedereinsetzung in den vorigen Stand is to be granted to them on application (§ 44 Satz 1 StPO). The missing of a time limit for a remedy also counts as being without fault where the instruction under § 35a Satz 1 StPO was not given (§ 44 Satz 2 StPO).

This route is itself bound by a time limit. The application is to be made within one week of the removal of the obstacle before the court at which the time limit would have had to be observed (§ 45 Abs. 1 Satz 1 StPO). The facts relied on must be substantiated, and within the period for the application the missed act must be made good, here therefore the Einspruch (§ 45 Abs. 2 Satz 1 und 2 StPO). Anyone who has missed the time limit should therefore have it examined at once whether this route is open.

Only certain legal consequences may be imposed by a Strafbefehl, among them a fine, a warning with the sentence reserved, a Fahrverbot, confiscation and dispensing with punishment, as well as the withdrawal of the Fahrerlaubnis (the legal permission to drive), where the Sperre (a period during which no new Fahrerlaubnis may be granted) is not more than two years (§ 407 Abs. 2 Satz 1 Nr. 1 und 2 StPO). Imprisonment of up to one year can be imposed only where the accused person has a defence lawyer and enforcement is suspended on Bewährung (a set period during which the sentence is not enforced and conditions apply) (§ 407 Abs. 2 Satz 2 StPO). The procedure is limited to a Vergehen, the less serious of the two categories of criminal offence in German law (§ 407 Abs. 1 Satz 1 StPO).

The decision about an Einspruch is a weighing between the finality of the Strafbefehl and a set of proceedings in the course of which the court is not bound by the ruling made so far. The basis of that weighing is the case file. How a defence works at this stage can be read on our page on general criminal law.