1. An analogous application of § 467, paragraph 3, sentence 2, no. 2 of the German Code of Criminal Procedure (StPO) to cases in which a conviction is ruled out as a result of a change in the law is out of the question.
2. Regarding the imposition of necessary expenses incurred by a defendant at the expense of the treasury in the event of procedural obstacles.
Coblence District Court, decision of September 24, 2007, 1 Qs 219/07
The facts of the case:
The defendant was accused of various violations of the daily rest period and driving time regulations: 3 hours and 25 minutes on October 30/31, 2006, more than 5 hours and 30 minutes on November 2/3, 2006, etc. On January 30, 2007, a fine of EUR 2,948.70 was imposed on the person concerned. The person concerned filed an objection to the fine with the help of legal counsel within the prescribed period.
At the main hearing before the district court of Koblenz on July 5, 2007, the defendant was acquitted. The costs of the proceedings, including the necessary expenses of the defendant, were to be borne by the treasury.
The acquittal was based on the fact that the legislature failed to adapt the German Driving Personnel Act in good time to the new EC Regulation No. 561/2006 on the harmonization of certain social legislation relating to road transport, which came into force on April 11, 2007. At the time, the provisions of the 8th Driving Personnel Act relating to fines referred to the outdated Regulation (EEC) No. 3820/85, which has now expired (so-called "rigid" reference). The version of the German law was therefore no longer valid in its current version. However, this was incompatible with the principle of legal certainty applicable in criminal and administrative fine law and the constitutional requirement that an act can only be punished if this was provided for by law before the act was committed ("nulla poena sine lege", Article 103, paragraph 2 of the German Constitution ). According to the unanimous rulings of the highest courts, this means that when the old EEC Regulation 3820/85 ceased to be in force, the blanket provision of Section 8 of the Drivers' Hours Act also ceased to be valid. Accordingly, violations of the new EC Regulation No. 561/2006 (OJ L 102, p. 1) could not be penalized in his time. Even past driving and rest time offenses against the expired Regulation (EEC) No. 3820/85, which were committed before April 2007, could no longer be punished with fines. This followed from the Administrative Offenses Act (Section 4 (3)), since the offense was not subject to a fine for a period of time between its commission and the court decision, as well as the prohibition of retroactivity. The Higher Regional Court of Koblenz had confirmed this in its decision of May 11, 2007 (1 Ss 113/07).
The public prosecutor's office had filed an immediate appeal on August 14, 2007 against the decision to order the state to pay the costs of the proceedings and the necessary expenses of the person concerned.
Decision of the court:
The Regional Court of Koblenz ruled that the immediate appeal of the public prosecutor's office was admissible in accordance with §§ 311 , 464 para . 3 StPO, but unsuccessful on the merits. The decision of the District Court of Koblenz regarding costs is not objectionable. Pursuant to § 467; para. 3; sentence 2 no. 2 StPO in conjunction with 46 para. 1 OWiG, the principle of 467 para. 1 StPO may be deviated from by not imposing the necessary expenses of a person concerned on the state treasury. However, this only applies if the person concerned is not convicted of a misdemeanor solely because of an obstacle to the proceedings. By contrast, an (analogous) application of § 467; para; 3 p. 2 no. 2 StPO in cases in which a conviction as a result of a change in the law is ruled out, is out of the question. This is generally recognized in criminal proceedings in the event of a dismissal in accordance with § 206b of the German Code of Criminal Procedure.1 Since there is no apparent reason to believe that a different assessment is required in administrative offense proceedings, the special provision of § 467 (3) sentence 2 no. 2 StPO also does not apply in fine proceedings in which a decision to acquit is made due to a change in the law. 2 no. 2 StPO not applicable.
Significance for legal practice:
The decision of the Regional Court is fully supported. The Regional Court has confirmed the previous case law of the Higher Regional Courts of Hamburg and Munich, which is now over 30 years old. The legislature has obviously also based its considerations on this. Regarding the regulation of the former Art. 97 of the draft law, which is now completely in line with Section 206b of the German Code of Criminal Procedure, the written report of the special committee for criminal law reform dated 23. 4. 1969 (BT-Drucks. V/4094, pp. 65/66): "In cases in which criminal proceedings pending at the time of the law coming into force concern an act of § 265 § StPO, which is no longer punishable under the new law, a main hearing with the aim of acquitting the defendant would have to be held nevertheless, if the main proceedings have already been opened. In the opinion of the Special Committee, this effort in terms of time and work should be avoided, given the expected number of such cases, which may be considerable, in order to relieve the courts as much as possible during the transition period. It should also be avoided that the defendant is exposed due to the circumstances of the - now unpunished - event that gave rise to the proceedings. The proposed provision, modeled on section206a of the Code of Civil Procedure, leads to a discontinuation of the proceedings outside of the main hearing in such cases. Since the proceedings are being discontinued for substantive rather than procedural reasons, the costs are incurred in accordance with section 467 (1) StPO and not section 467 (3) no. 2 StPO, so that the defendant is not worse off under this provision than he would be if he were acquitted. If the court is unable to satisfy itself that the offense is no longer punishable under the new law without a main hearing, or if this only comes to light during the main hearing, the defendant is to be acquitted on the basis of the main hearing that has been conducted."
This cost consequence benefits a flood of those affected who have been acquitted as a result of the gap in punishment,
considering that according to the Federal Statistical Office, approximately 60,000 cases of driving time violations, non-compliance with rest periods and insufficient rest periods are detected each year. More than half a million checks were carried out in 2005 alone.
Note: In the meantime, the legislature has amended the Driving Personnel Act on July 6, 2007 (Federal Law Gazette I, 1270) and replaced the referenced provisions of Regulation (EEC) No. 3820/85 with Regulation No. 561/2006. The amending law was promulgated on July 13, 2007 and entered into force one day later. Anyone violating maximum daily driving times and minimum daily rest periods since then must again expect significant consequences in the form of fines. But that's not all: through the Third Act Amending the Driving Personnel Act in Section 8 ( 3) FPersG, the legislature has also considered violations that were committed under the old Regulation (EEC) No. 3820/85 until April 10, 2007. The legislator has declared the so-called most-favored-nation clause of § 4 para. 3 of the German Act against Regulatory Offenses (OWiG) inapplicable. The law states: "Administrative offenses under Section 8 of the Driving Personnel Act that were committed up to April 10, 2007 under the terms of Regulation (EEC) No. 3820/85 were committed, shall be punished, notwithstanding Section 4 ( 3) of the Act on Regulatory Offenses, in accordance with the provisions in force at the time of the offense."
Without the latter provision, there would have been no obstacles to getting off scot-free for violations of daily driving hours and daily minimum rest periods committed while Regulation (EEC) No. 3820/85 was still in force. Section 4 ( 3) of the German Act Against Regulatory Offenses (OWiG) stipulates that the milder law should apply retroactively. In summary, the parties to the proceedings have the right to be heard by the court, and the court is obliged to give them a fair hearing. The parties to the proceedings are the person concerned, the public prosecutor, the defense counsel, and the court.
If the legislature now sets this principle aside, it encroaches upon the principle of the protection of legitimate expectations, since the legislature returns to a stricter judgment despite the gap in punishment leading to the acquittal.2 The favorable legal situation of the person concerned would be retrospectively revoked.
Despite these concerns, the supreme court ruling (Higher Regional Court of Stuttgart, judgment of November 6, 1998 - 1 Ss 437/98) in a similar case in which the legislature had made an erroneous reference to an EEC regulation in the Federal Nature Conservation Act of April 30, 1998 (Federal Law Gazette I, p. 823) and later declared the parallel provision from the Criminal Code (Section 2 ( 3) for inapplicable,3cametothe conclusion that the constitutional prohibition of retroactivity under Article 103 II of the Basic Law (GG ) had not been violated. The provisions on most-favored treatment are subject to change.4 If one follows this decision, then according to the current legal situation, violations of daily driving times and daily minimum rest periods that occurred before April 2007 would be punishable again. However, the decision has remained highly controversial to this day,5 especially since it would also violate the constitutionally guaranteed prohibition of arbitrary unequal treatment (Art. 3 para. 1 of the German Basic Law ). Right-winged and legally concluded proceedings would be treated arbitrarily unequally.
As a reminder: The courts had to acquit the persons concerned if their court date took place before July 14, 2007, the day the new driving personnel law came into force, due to violations of maximum daily driving times and minimum daily rest periods. In this case, the most-favored-nation clause of § 4 (3) of the German Law Against Unfair Competition ( OWiG ) still applied. However, if the main hearing could only be scheduled after that date for organizational reasons, the person concerned would have to expect punishment under the amended law. The practical consequence of the new driving personnel law would lead to the absurd result that a person affected, who, due to the business situation of the district court, does not have his court date until the end of the year, would have to fear a fine, whilewhile the person concerned, who had to go to court before the law came into force, could be pleased about an acquittal. But this is obviously arbitrary. Such a disparate application of the law would no longer be comprehensible in view of the ideas that dominate the Basic Law, so that the conclusion suggests itself that it is based on extraneous considerations.6
Whether German courts impose penalties or acquitals must not depend solely on the financial situation of the courts. The consideration of remedying legislative omissions is also not recognized as an objective reason for different regulations. Nevertheless, the Federal Office for Goods Transport apparently insists on punishing past violations of the Driving Personnel Act in internal instructions. Some district courts have already taken an elegant middle course and have discontinued such fine proceedings in individual cases for reasons of opportunity in accordance with Section 47, paragraph 2 OWiG, because they did not consider it necessary to take action (Koblenz District Court, 2010 Js 21497/07 34 OWiG). This is possible for fines of up to one hundred euros without the consent of the public prosecutor if the prosecutor has stated that they will not be attending the main hearing. Ultimately, it is clear that the question of whether violations of daily maximum driving times and daily minimum rest periods can be prosecuted remains highly controversial, even after the partial closure of the legal loophole in the German Driving Personnel Act, and will probably be dealt with by the supreme court.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.