Ladung zum Strafantritt: which routes exist and what a Gnadengesuch achieves

Under § 458 Abs. 1 StPO, a decision of the court is to be obtained where doubts arise about the interpretation of a criminal judgment or about the calculation of the sentence imposed, or where objections are raised against the admissibility of enforcement. Under Absatz 2, the court also decides where, in the cases of §§ 455 und 456 StPO, objections are raised against the decision of the Vollstreckungsbehörde.

Absatz 3 contains the sentence that matters in practice: this does not stay the continuation of enforcement. The court may, however, order a deferral or an interruption of enforcement. An application on its own therefore stops nothing.

Under § 456a Abs. 1 StPO, the Vollstreckungsbehörde may refrain from enforcing a prison sentence, an Ersatzfreiheitsstrafe or a measure of rehabilitation and incapacitation where the convicted person is extradited to a foreign government because of another offence, is surrendered to an international criminal court, or is deported, removed or refused entry from the area in which the statute applies. If they return, enforcement may be made good under § 456a Abs. 2 StPO; for that purpose the Vollstreckungsbehörde may at the same time issue a Haftbefehl (a written detention order) and initiate search measures.

Whether a deportation takes place is not decided by the Vollstreckungsbehörde. That is the subject of separate proceedings before a different authority and is governed by different provisions. The criminal proceedings supply only a point of reference there. From here, no prediction of how that authority will decide is possible.

The competent body is not the Federal President. Under § 452 StPO, the power of clemency belongs to the Federation only in matters in which the decision at first instance was given in the exercise of federal jurisdiction; in all other matters it belongs to the Länder. Art. 60 Abs. 2 GG concerns precisely that federal share. For convictions by Hamburg courts, Artikel 44 Abs. 1 der Verfassung der Freien und Hansestadt Hamburg applies: the power of clemency belongs to the Senat. The Senat delegated its exercise by order of 16 August 2022. Under § 2 Abs. 1 of the Hamburgische Gnadenordnung, the authority responsible for justice therefore decides on clemency matters. Excepted are the remission and the conditional suspension of life sentences, the remission and the conditional suspension of prison sentences in so far as more than four years remain to be served in the particular clemency proceedings, and clemency matters of special significance; in those cases the Senatskommission für das Gnadenwesen decides. The details are governed by the Hamburgische Gnadenordnung.

Six points from it are important for those affected.

First, precedence: under § 3 Abs. 1 of the Gnadenordnung, an act of clemency as a rule comes into consideration only once legal remedies or other formal remedies against the original decision can no longer be lodged, or could not be lodged at all. Under § 3 Abs. 2, it is first to be examined whether the aim of the petition can be met by a decision of the court or of the Vollstreckungsbehörde; such a decision takes precedence.

Second, form: under § 5 Abs. 2 Satz 1, a Gnadengesuch is not tied to any time limit and requires no particular form. Under § 5 Abs. 1 Satz 1, it may be submitted by anyone; where it is not free from doubt whether the petition accords with the will of the convicted person, their consent is to be obtained.

Third, enforcement: under § 6 Abs. 1, a Gnadengesuch and an objection against its refusal do not as a rule stay enforcement. Under § 6 Abs. 2, the clemency authority may suspend or discontinue enforcement until the decision where the convicted person would suffer a disproportionate disadvantage through immediate enforcement, or where other substantial grounds for clemency are present and the public interest does not require immediate enforcement.

Fourth, content: § 4 Abs. 2 names the power to remit legal consequences, to reduce them, to convert them, to defer their enforcement, to interrupt it for a limited time or to suspend it permanently, and to grant easier terms of payment.

Fifth, the decision: under § 11 Abs. 1 it is communicated by written notice and requires no reasons. The Justizbehörde also points out that there is no entitlement to an act of clemency.

Sixth, the files: under § 13 Abs. 2 there is as a rule no right to Akteneinsicht (inspection of the case file); in the case of the revocation and the withdrawal of a suspension of sentence on Bewährung, however, § 147 StPO applies accordingly (§ 13 Abs. 3).

The petition is to be addressed to the authority responsible for justice, Behörde für Justiz und Verbraucherschutz, Gnaden- und Beschwerdeangelegenheiten, Drehbahn 36, 20354 Hamburg. According to the authority's own guidance, the following are to be stated: surname, name at birth, given names, date of birth, place of birth, citizenship, address and the file reference of the Staatsanwaltschaft.