Samstag, 09.05.2020
Covid-19 pandemic, procedural delay and provisional withdrawal of driving license in accordance with § 111a StPO
from
Dr. jur. Ingo E. FrommLawyer
Specialist in criminal law
Specialist in traffic law
Give me a call: 0261 - 404 99 25
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In criminal proceedings involving traffic offenses, the driving license may also be provisionally withdrawn under certain conditions (before a judgment, or possibly immediately after the offense) in accordance with § 111a of the German Code of Criminal Procedure. If there is a significant delay due to the coronavirus pandemic, consideration should be given to filing an application with the district court to lift the provisional revocation of the driving license in accordance with § 111a StPO. The passage of time due to rescheduling of appointments as a result of the Covid-19 virus cannot be at the expense of the client. In fact, it is established case law that a provisional measure under 111a I StPO is to be repealed if the proceedings are unusually delayed; anything else would be incompatible with the principle of proportionality.If the accused has to wait so long for his court date that he could have gotten his driver's license back by then (if he had accepted the penalty order), this would be unreasonable and procedurally flawed. If, for example, the ban on re-obtaining a driver's license is six months according to the penalty order, it would be unacceptable for the defendant to have to wait six months for a court date.
Since experience shows that many courts are currently unable to handle even urgent criminal proceedings in a reasonable time, it is recommended that in appropriate cases a complaint be filed for delay due to excessive length of proceedings. Section 198 GVG stipulates that anyone who suffers a disadvantage as a result of the unreasonable duration of court proceedings as a party to the proceedings shall be adequately compensated. The appropriateness of the duration of the proceedings depends on the circumstances of the individual case, in particular on the difficulty and significance of the proceedings and on the conduct of the parties to the proceedings and third parties. If the criminal proceedings are still in the investigation stage and are taking an unreasonably long time, the delay in proceedings is to be reported to the public prosecutor, § 199 II GVG. No compensation can be granted later without raising the complaint about the delay.
If the defendant is also a juvenile or an adolescent as defined by the German Juvenile Court Act (Jugendgerichtsgesetz, JGG), the requirement to expedite the proceedings must be observed all the more. Although this is not explicitly standardized in the JGG, it is generally recognized in case law and legal literature. An excessively long duration of proceedings would even have to be compensated for up to a reduction in sentence.
See further information: Fromm, Verkehrsstraf- und Bußgeldverfahren und Covid-19-Pandemie, in: Zeitschrift COVID-19 und Recht (COVuR) 2020, 82 et seq.
References:
[1] OLG Düsseldorf NZV 1988, 194, NZV 1990, 404.
[2] Burhoff, StRR 2012, 4.
[3] BGH NJW 2018, 2062; Rose, NStZ 2013, 315.
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.