The new institution of the Penal Order
The penal order constitutes a judicial decision of provisional effect, issued without hearing the defendant, which is served on the defendant, who may file objections of any content against it within 15 days from its service. Therefore, although the defendant does not participate in, nor is heard in any way during, the procedure for issuing the penal order, the possibility of subsequently following the ordinary procedure and exercising the above rights is fully safeguarded. Consequently, the issuance of the penal order by a judge in public session, as well as the trial of the case under the ordinary procedure, where the defendant so requests by filing objections, secures the constitutionality of this new institution, which is recognised by the case law of the Court of Justice of the European Union (CJEU) as well.
Many criminal cases were tried this year without the need for the Misdemeanors Court to convene in oral proceedings, sparing the parties the loss of time and money. Through the Penal Order, which has been applied in the Courts of First Instance since last year, cases of minor criminal significance are dealt with quickly, without ever reaching the courtroom. The penal order is an alternative procedure for the administration of criminal justice; its purpose is to expedite criminal proceedings and to relieve the judicial workload.
The new institution has been notably successful and indeed appears to be used increasingly often. The Penal Order is applied, in the interest of saving effort and costs, to offences of minor criminal significance, such as misdemeanors falling within the jurisdiction of the Single-Member Misdemeanors Court for which a sentence of imprisonment of up to one year, a monetary penalty, or both is provided, such as driving without a licence (Article 94 of the Highway Code) and possession of narcotic substances for personal use.
Difference between the Penal Order, Penal Reconciliation and Penal Negotiation
The procedure for issuing a penal order differs clearly from the procedures of penal reconciliation (Articles 301, 302 of the Penal Code (PK)) or penal negotiation (Article 303 of the Code of Criminal Procedure (KPD)), since in the penal order procedure there is no consent of the defendant for its activation, nor any prior acceptance of its outcome; rather, a decision is issued in absentia, which the defendant is entitled to refuse and to challenge subsequently, bringing the case to the courtroom for trial under the provisions of the ordinary procedure.
The Penal Order procedure
The penal order procedure operates as follows: the public prosecutor who brings the criminal action, after examining the file and concluding that the evidence is sufficient and that no oral hearing is required to further establish the facts founding the defendant’s guilt, files a request before the competent judge — only where the above conditions are cumulatively met — for the issuance of a penal order, drafting an indictment. If the judge concludes that the evidence submitted is indeed sufficient, the judge proceeds to issue the Penal Order in public session, without prior hearing of the defendant; otherwise, the defendant is referred to be tried in the courtroom. If, however, the judge does issue a penal order — without summons or hearing, of course — the judge imposes a monetary penalty reduced by 2/3 in relation to the framework provided by law and a sentence of imprisonment of up to three months suspended on probation (along with any ancillary penalties, while also ruling on the fate of any seized items). The defendant is informed of the charge against them through service of the Penal Order, which is a provisional conviction.
Objections against a Penal Order
Under the penal order procedure, the convicted person has the right to file “objections” against the judicial decision, within 15 days of its notification. The objections concern, principally, the assessment of the evidence on which the Penal Order was issued. Timely filing of objections requires particular attention, as the mere fact of timely filing overturns the Penal Order decision and the case is brought to the courtroom for hearing. The defendant, however, risks a heavier sentence. With regard to the Penal Order, an exception is introduced to the principle of non-reformatio in peius, which applies to legal remedies and ancillary remedies, as the court hearing the objections at first instance is not bound by the provision of Article 470 of the Code of Criminal Procedure (KPD). Consequently, the Single-Member Misdemeanors Court, after the filing of objections against the Penal Order, when trying the case, may impose on the offender criminal sanctions greater than those imposed by the penal order. If the objections are filed in time, in accordance with Article 412, the decision issued is overturned and the case is brought for hearing under the ordinary procedure, following prior summons of the defendant. If timely objections are not filed, the order issued under Article 410 is enforced. Appeal and cassation against it are not permitted.
Hearing of Objections to the Penal Order in court
If the objections are filed in time, the decision issued is overturned and the case is brought for hearing under the ordinary procedure following prior summons of the defendant (Article 166, which provides that: the time limit for the appearance of the parties, witnesses and expert witnesses in the courtroom is set at fifteen days. If the person summoned resides abroad or is of unknown residence, this time limit is thirty days where their residence is in a country of Europe or the Mediterranean and sixty days in any other case. The time limit begins on the day following service and ends on the day before the hearing date.)
No binding effect of the prohibition of reformatio in peius in the hearing of Objections to the Penal Order
In the penal order, an exception is introduced to the principle of non-reformatio in peius, which applies to legal remedies and ancillary remedies. Consequently, the Single-Member Misdemeanors Court, after the filing of objections against the penal order, when trying the case, may impose on the offender criminal sanctions greater than those imposed by the penal order.
Legal remedies against the Decision on Objections to the Penal Order
Against the decision on the objections, the legal remedies provided by the Code (Articles 489 et seq., 504 et seq. of the Code of Criminal Procedure (KPD)) may be exercised.
- See also article Flagrante Delicto Procedure
- See also article Medical Negligence
- See also article Child Pornography
- See also article Defamation
- See also article Bodily Harm
- See also article Narcotics
- See also article Penal Negotiation – Reconciliation
- See also article Fraud
- See also article Forgery
- See also article Embezzlement
- See also article Negligent Homicide
- See also article Tax Evasion
FREQUENTLY ASKED QUESTIONS ON PENAL ORDER – OBJECTIONS – LAWYER
1. I have received a penal order without standing trial. What does this mean?
The penal order is a provisional conviction issued by a judge in misdemeanors of minor significance, without a prior hearing of you. It concerns cases falling within the jurisdiction of the Single-Member Misdemeanors Court with a maximum sentence of one year, such as driving without a licence or possession of narcotics for personal use. The sentence imposed is reduced: a monetary penalty at 2/3 of the statutory framework and imprisonment of up to three months suspended on probation. If you do not react within 15 days from service, the order becomes final and enforceable. However, you have the right to file objections and bring the case to a regular trial.
2. How can I react against the penal order?
The only legal remedy is the filing of objections, which must be lodged within 15 days from service of the order. With their timely filing, the penal order is automatically overturned and the case is brought before the Single-Member Misdemeanors Court for trial under the ordinary procedure, with prior summons. Appeal and cassation against the penal order itself are not permitted, so objections are the only avenue. Objections usually concern the assessment of the evidence, the contestation of the factual circumstances, deficiencies in the case file, or the invocation of mitigating circumstances. Their drafting requires care, as it shapes the line of defence in court.
3. Do I risk a heavier sentence if I challenge the order?
Yes, this is a critical point. With objections against a penal order, the principle of non-reformatio in peius, familiar from legal remedies, does not apply. Consequently, the Single-Member Misdemeanors Court, if it finds the defendant guilty, may impose stricter penalties than those of the original penal order. For this reason, the decision to file objections must be carefully considered and take into account the strength of the evidence, the likelihood of acquittal or recognition of mitigating circumstances (Article 84 of the Penal Code (PK)), as well as the possibilities of suspension (Article 99 of the Penal Code) or commutation of the sentence. This assessment is made by a lawyer after studying the file.
4. How long does the procedure take until the case is heard?
The deadline for filing objections is strict: 15 days from service of the penal order. If it lapses without action, the order is enforced and no other legal remedy is available. After timely filing, the case is scheduled for hearing in court, with a summons period of at least 15 days (30 or 60 days if you reside abroad). The actual time until the hearing depends on the workload of the competent Court of First Instance and usually ranges from a few months to a year. In the event of conviction, the time limits for appeal (Articles 489 et seq. of the Code of Criminal Procedure) and cassation (Articles 504 et seq. of the Code of Criminal Procedure) follow.
5. What documents and materials are needed for the objections?
The penal order itself, together with the report of service, is essential, so that the 15-day time limit is calculated correctly. Subsequently, the lawyer requests the case file from the Public Prosecutor’s Office, in order to study the evidence, the witness statements and the documents. Useful items include any materials supporting the defence: documentary evidence regarding the background, medical opinions, certificates of employment, a clean criminal record extract, family status. All these support the contestation of guilt or the standalone pleas for mitigating circumstances (prior honest life, subsequent good conduct). The collection must be carried out without delay, so that the deadline is not missed.
6. What is the role of the lawyer in this procedure?
The lawyer studies the case file and assesses whether it is preferable to file objections or to accept the reduced sentence already imposed by the penal order. This balancing exercise is critical, due to the possibility of an aggravation of the sentence in court. If a challenge is decided, the lawyer drafts and files the objections in time, organises the line of defence, represents the defendant before the Single-Member Misdemeanors Court, raises standalone pleas for mitigating circumstances, suspension or commutation of the sentence and, in the event of an unfavourable decision, files an appeal or cassation. The Law Firm ZIAMPARAS D. & ASSOCIATES has experience in handling objections and in the criminal defence of related offences.