The shock runs deep: Suddenly, someone calls your office, completely distraught, and reports that they have a Sentencing summons (often also referred to as an „order to report“). He or she has been ordered to report to a correctional centre (JVA) at a certain time or within a certain period - either because of a prison sentence or a substitute prison sentence. This is an extremely stressful situation: you are torn out of your normal life, family structures are jeopardised and your professional existence may be threatened.
But is there still a way to prevent or at least delay the start of a prison sentence in this situation? Yes - but only to a limited extent and often only in exceptional cases. Below is a structured overview of the most important options.
I. Legal force = hardly any possibilities for intervention
Before we come to the specific instruments: It is important to know that a summons to appear for sentencing is usually only issued once the underlying judgement or summary penalty order has been issued. legally binding has expired. This means that the usual appeal period (e.g. appeal or revision) has expired or has been exhausted. In this situation, a classic Appeal against the judgement is no longer possible. Of course, in exceptional cases there is still the possibility of a retrial or a constitutional complaint, but these procedures typically take effect too late to prevent a prison sentence being imposed.
As soon as legally binding, there are usually onlygenerally only options in the Enforcement proceedings - and these are very limited.
II. Objections to enforcement and postponement of sentence, section 458 of the Code of Criminal Procedure
Even if the judgement is legally binding, under certain conditions Objections be raised against the enforcement:
Doubts in the interpretation of the judgement (e.g. conflicts between the operative part and the reasons)
Doubts in the calculation of the sentence (e.g. unclear regulations on the crediting of pre-trial detention)
Obstacles to enforcement such as statute of limitations, doubts about identity, amnesty or procedural delays contrary to the rule of law
According to § Section 458 (1) of the Code of Criminal Procedure you can appeal to the court to decide on such objections. However, this does not automatically suspend enforcement - so there is no guarantee that such an application will prevent you from being detained. However, if there are reasonable doubts, the court can preliminary order a stay of sentence or an interruption (section 458(3) of the Code of Criminal Procedure).
III. The classic way: postponement of sentence, § 456 StPO
The best known and practically most common lifeline is the Suspended sentence. After § Section 456 Code of Criminal Procedure At the request of the sentenced person, enforcement may be postponed by up to four months be postponed if the immediate commencement of the Significant disadvantages outside the purpose of the sentence would arise.
Important here:
The application must before before the start of detention.
Enough is enough not It is not sufficient to claim normal disadvantages (e.g. loss of employment) - these are regarded as normal „penalties“ that the convicted person must accept.
The disadvantages must extraordinary and ideally can be eliminated during the deferral period.
The duration is limited to a maximum of four months limited.
The authorisation can be linked to conditions (e.g. provision of security).
Examples where courts have granted a deferral in practice:
An independent contractor without a trained representative
A convicted person about to complete an apprenticeship
A student who would otherwise be at risk of losing a semester
A family case, such as a seriously ill spouse or lack of childcare
A refusal can be reviewed by a court decision in accordance with Section 458 (2) of the Code of Criminal Procedure - however, this in turn does not automatically suspend enforcement.
IV Suspension of sentence in the event of unfitness to stand trial, Section 455 StPO
Another option is the so-called Suspended sentence (no pun intended): If the convicted person unfit for execution If the offender is a person who cannot be detained in the prison for health reasons (e.g. serious illness, need of care, mental illness), the execution of the prison sentence may be suspended. postponed or interrupted become.
The following also applies here: If the application is rejected, an application pursuant to Section 458 (2) of the Code of Criminal Procedure is possible. However, even this does not automatically have an inhibiting effect.
V. For organisational reasons & reasons for execution (§ 455a, § 456a StPO)
§ Section 455a StPO: A postponement or interruption may result from Reasons for the enforcement organisation e.g. overcrowding, accidents or other hazards in prisons.
§ Section 456a StPOIn the event of extradition, expulsion or transfer abroad, enforcement may be waived in whole or in part.
Such cases are rare and often linked to complex conditions.
VI. substitute custodial sentence: the „ticket“ to imprisonment often avoidable
If the summons to appear Alternative custodial sentence (because a fine has not been paid), the chances are comparatively better:
Payment of the original fine
If the delayed or uncollectible part of the fine is paid in full, the alternative custodial sentence is cancelled and thus the prison sentence is not imposed.Repayment through community service or comparable work
Under certain conditions, the uncollectible portion can be replaced by work (e.g. six hours of work per daily rate).Undue hardship (§ 459 f StPO)
In exceptional cases, the court may suspend the execution of the custodial sentence for reasons of hardship - for example, if imprisonment represents an unreasonable burden. However, such cases must be interpreted very narrowly.
So if someone threatens you with a substitute custodial sentence in Bremen, it is usually worth taking the payment or labour application route first.
VII Path of clemency (clemency decree)
As a final option, a Petition for clemency can be lodged. Such an application can lead to the enforcement being suspended completely or at least temporarily. In practice, however, success is rare and the mere application is usually not sufficient to prevent enforcement in the long term.
VIII. Conclusion and recommendations for action from a Bremen perspective
For the people of Bremen, this means
If you receive a summons to appear for sentencing, this usually means that the judgement is already legally binding - and this means that many classic options for attack are gone.
Alternative custodial sentence: In most cases, you can prevent detention from becoming necessary in the first place by making a payment or applying for labour.
Prison sentence: In exceptional cases, you can try to switch off Postponement of sentence (§ 456 StPO) to delay the start date by up to four months - but only if there are exceptional reasons. Likewise Suspension of sentence (§ 455 StPO) if you cannot be detained for health reasons.
Procedural obstacles: Objections according to § 458 StPO occasionally offer starting points, especially in the case of justified doubts about enforcement.
Nevertheless, the deadline is short and there is often little time to act.
The following therefore applies: If someone receives a summons to appear in Bremen, he or she should immediately an experienced Defence lawyer Switch on - not just when the deadline is already approaching. It is often important to act quickly and strategically in order to at least achieve a postponement or a better solution.
Your rights in Bremen's hands
As a law firm based in Bremen, we specialise in criminal law and understand the particularities of criminal enforcement issues. If you or someone you represent has received a summons to appear for sentencing, please do not hesitate to contact us. We will quickly and specifically check which options are possible for you - and will assist you with applications, objections or, in special exceptional cases, also in clemency proceedings.
FAQ
1. what is a penalty summons and what does it mean?
A summons to appear for sentencing is a request from the public prosecutor's office to serve a custodial or alternative custodial sentence in a correctional institution. It is sent when a judgement has become final.
2. can I still prevent my imprisonment in Bremen?
In exceptional cases, yes - for example by paying a substitute custodial sentence, deferment of sentence due to particular hardship or health reasons. An experienced criminal defence lawyer will check your options.
3 What should I do if I cannot pay a fine?
Then there is the possibility of averting the custodial sentence through community service. Here, too, we will support you with the application.
4. how long can a prison sentence be postponed?
A deferral of sentence can be granted for a maximum of four months - but only for serious and temporary reasons, e.g. imminent completion of training or health problems.
5. do I have to involve a lawyer immediately?
Absolutely. This is because many legal options are only possible within short deadlines. Acting quickly significantly increases the chances of success.
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