Introduction
The regionally different struggle to impose or to omit the driving ban is known to every defense lawyer.
This is particularly evident in the following quote from a district court judgment, against which the public prosecutor's office has lodged an appeal. It states: "Since the court has drawn its judgment from the quintessence of the main hearing, it would be nice if the competent public prosecutor's office would also form an opinion of the respective proceedings in this way and not just file a legal complaint in the event of any deviation from the standard sentence, as is its habit. The "case law machine" has not yet been invented.
In regions that are oriented towards setting aside the driving ban by the district court of first instance, the higher regional court is faced with the problem that, in the proceedings before the district court of first instance, after the driving ban has been set aside by the court of appeal and the case has been referred back to the district court of first instance, District Court, the driving ban could be dropped, at least on the grounds of the "expiration of time". At the latest two years after the "offense," a driving ban could no longer be imposed.
To prevent this effect, it is possible for the respective Higher Regional Court to "only" set aside the declaration of the legal consequences, to reduce the fine and to order a driving ban itself, in order to shorten the "detour" via the renewed local court proceedings.
Since such a procedure is appropriate, the higher regional court senates regularly make use of it.
This article will examine the conditions under which this is possible and the options available to the defense.
Basics
If a motor vehicle driver violates a speed limit, disregards ignores a red light at a traffic light or does not keep the required distance from the vehicle in front, and if the violation can be qualified as a "gross breach of duty," then, in addition to being fined, he will be banned from driving for at least one month. The respective fine authority imposes this standard sanction on the basis of § 25 para. 1 sentence 1 in conjunction with § 24 para. 1 sentence 1 StVG in conjunction with § 4 para. 1 BKatV. If the person concerned appeals against the fine notice, the competent district court in accordance with § 68 OWiG decides on this.
If the court sets aside the fine notice to the extent that it raises the fine while waiving the driving ban and thus the standard sanction of § 4 para. 4 BKatV, it is 1 BKatV, the public prosecutor's office regularly, and almost automatically, files an appeal to the disadvantage of the person concerned in accordance with § 296 para. 1 StPO in conjunction with79 para. 1 p. 1 OWiG.
The court of appeal, usually the higher regional court responsible for the district, decides on the merits of this appeal.
This court now has several options in its decision:
First, it can dismiss the appeal as inadmissible or unfounded, discontinue the proceedings due to a procedural obstacle or lack of public interest in pursuing the case, or it can consider the appeal to be well-founded because the decision is based on a substantive or procedural defect in the law.
If the OLG votes in favor of the merits of the appeal, it can refer the case back to the initial judgment of the district court or to a district court in the same state for a new decision in accordance with § 79 (6) OWiG, or it can make a decision on the merits itself.
If the Higher Regional Court refers the case back to a local court, a new evidentiary hearing and a new decision on the merits will be held. It should be noted that, depending on the duration of the proceedings, the imposition of a driving ban in accordance with Section 25 I 1 of the German Driving Ban Act (StVG) may be precluded by the objection of the passage of time. This objection is based on the consideration that the driving ban is a form of special prevention. This means that it primarily has a warning and reflection function for the individually negligent or careless driver. If a longer period of time has passed between the traffic violation and the point in time at which the district court makes a new decision after a successful legal complaint, and if the defendant has driven without objection in the meantime, the driving ban is no longer able to fulfill the special preventive purpose. In this regard, the Higher Regional Court case law has established the requirement of a period of approximately two years without any complaints.
If, on the other hand, the court of appeal decides to decide on the legal consequences itself and thus to decide "through and through", this is generally possible under Section 79 (6) OWiG. However, this option, which represents an exception to the law of appeal, requires that the district court ruling provide a sufficient factual basis for the higher court to build its decision upon.
Options for the defense
First of all, it should be noted that the decision of the court of appeal is not contestable.
The only option left to the person concerned as a last resort is to file a constitutional complaint.
In the context of this judicial constitutional complaint, the principle of subsidiarity must always be observed. Accordingly, before invoking the constitutional court, the possibilities of criminal procedural law must first be exercised by filing an application for reinstatement in accordance with
Section 33a StPO (Code of Criminal Procedure) as well as the application for a subsequent hearing in accordance with Section 311a StPO (Code of Criminal Procedure) is required before the constitutional court can be invoked.
The following also lead to the inadmissibility of the constitutional complaint: a declared waiver of an appeal, the inadmissible filing and the withdrawal of an appeal that has already been admissibly filed, and the failure to make a complaint required in the appeal proceedings.
The following is intended to address the constellation that frequently arises in legal practice, in which the court of appeal, expressly waiving the option of referring the case back to the district court, makes its own decision on the merits of the case, but one that lacks a sufficient factual basis.
Analysis
This applies, for example, to the case in which the personal circumstances of the defendant have not been sufficiently presented in the original decision of the district court.
Taking these into account is of fundamental importance for the court's discretionary decision to impose or refrain from imposing a driving ban. Only if the individual circumstances show significant peculiarities in favor of the person concerned compared to the normal case, which are referred to as "exceptional circumstances" in the context of supreme court rulings, can it be necessary to refrain from the standard sanction of a driving ban.
This means that in the context of an offense that can result in a driving ban under Section 25 (1) sentence 1 of the Road Traffic Act (StVG), the imposition of such a ban is at least desirable if not intended by the legislature. The regulation of § 25 Abs. 1 Satz 1 StVG leaves the administrative authorities and courts a discretion of legal consequences, whereby, for example, a one-time infringement may only be taken as an occasion for the imposition of a driving ban if the person concerned has behaved particularly irresponsibly.
However, the higher court's jurisprudence tends to make the exception the rule and thus initially assume that a driving ban is necessary in the event of an infringement and only in special "hardship cases" refrain from this "standard sanction".
There are several reasons for this practice.
On the one hand, in the opinion of the Federal Court of Justice, the practical significance of the educational instrument of the driving ban as a measure of reflection and warning should not be taken away by the fact that its imposition would not be the rule but the exception and that this exception would be subject to an increased duty of justification. The assumption of a standard sanction with a reduced obligation to provide reasons is indispensable, above all, because an individual forecast decision for the mass proceedings of traffic offenses would cause disproportionate difficulties and would run counter to the interest of the most equaluniform treatment of similar cases.
In summary, the reversal of the statutory rule-exception relationship is based on the attempt to prevent the legal threat of a driving ban from being downgraded to a "blunt sword" and, on the other hand, to get a grip on the flood of administrative offense proceedings.
The intention to impose the sanction of a driving ban as frequently as possible is also evident in the legislative materials for the catalog of fines ordinance. The legislature also points out that "without additional significant peculiarities, the ordering of a driving ban is generally required; Conversely, a decision not to impose a driving ban requires particularly detailed justification because more frequent application of this indisputably particularly effective secondary consequence of a misdemeanor is desirable in the interest of traffic safety, which is becoming increasingly important as traffic increases.
In order to uphold the constitutionally guaranteed principle of proportionality despite these repressive requirements, the legislator introduced the passage contained in § 4 paragraph 1 of the BKatV, according to which the ordering of a driving ban due to a gross violation of the duties of a driverdriver is "generally considered" and with the exception of § 4 para. 4 BKatV, according to which the judge may refrain from ordering a driving ban while increasing the fine, a corrective to ensure judicial independence and freedom of decision. In this way, sufficient account should be taken of the circumstances of the individual case, both from an objective and a subjective point of view.
However, an evaluation of the individual case that satisfies the requirement of proportionality can only be considered if the judge hearing the case is aware of the possibility of deviation and also indicates this in the reasons for the decision.
This is the greatest weakness of the rule-exception construct.
If, as is often the case when a driving ban is imposed, the reasons for the decision are "incorrect" in the sense that they do not contain the "right" argumentsregarding the foreseeing, which can essentially be reduced to a threat of loss of livelihood or job, has been chosen, a subsequent annulment of the pronouncement of legal consequences by the court of appeal is based on an inadequate factual basis.
As a result, the judgment of the court of appeal is not drawn from the "essence of the main proceedings", but is based entirely on the grounds for the original district court decision with regard to the facts relevant to the decision.
However, if these reasons for the decision are incomplete and do not contain information that has been recorded or at least submitted in writing by the defense prior to the proceedings, this can lead to a decision that violates the constitutionally protected rights of the defendant.
However, the correct and complete presentation of the circumstances justifying an exception is of fundamental importance in this context, since an inadequate presentation, which is then taken as a reason by the respective Higher Regional Court not to assume an exception, reduces the sense of the rule-exception relationship ad adsurdumand thus the proportionality of the measure can no longer be assumed. The defendant is thus undone by the lack of reasoning in the judgment of the Local Court, which is actually favorable to him, which is completely beyond his control.
The guarantee of the principle of proportionality is thus to be made dependent on the fact that, if § 25 para. 1 sentence 1 StVG in conjunction with 24 para. 1 sentence 1 StVG in conjunction with Section 4 (1) BKatV provides for the driving ban as a standard measure and if, nevertheless, the premise of equal treatment of those affected and the requirement of justice are to be fulfilled, which can only be assumed in the case of a correct consideration regarding the assumption or rejection of an exceptional case within the framework of Section 4 ( 1 and para. 4 BKatV, there must also be a sufficient factual basis for the final decisions.
If such a sufficient factual basis does not exist, it is not possible for the court of appeal to review whether the district court refrained from imposing a driving ban in a legally unobjectionable manner. Rather, it must be referred back to the district court. A "final decision" that is nevertheless made constitutes, among other things, a violation of the right to one's lawful judge.
The following case decided by the Federal Constitutional Court is cited to illustrate such a violation.
In this case, the complainant was convicted of a red light violation in the initial decision by the competent district judge in accordance with § 4 para. 1, para. 4 BKatV, waiving the order of a driving ban, to an increased fine. Regarding the personal circumstances of the defendant, the protocol of the oral proceedings only stated that the defendant was married.
The public prosecutor successfully appealed against the district court judgment, in the course of which the court of appeal set aside the judgment on the legal consequences and made a "final decision" on the matter. The court of appeal reduced the fine in its decision and ruled that a case under § 4 para. 1 BKatV (§ 2 para. 1 BKatV old version) and that no special circumstances were apparent that could justify an exceptional case according to § 4 para. 4 BKatV (§ 2 para. 4 BKatV old version), a driving ban of one month's duration.
In the constitutional complaint that he then filed, the complainant alleged a violation of his right to be heard in court, since the court had not taken into account his personal circumstances and the impact of the driving ban on his professional future in its decision. The complainant, who as a taxi driver had to provide for his family alone and whose wife was about to give birth, which is why he had to drive her to medical appointments every day, would have been threatened with dismissal by his employer for the duration of the ban, which means that the driving banwould have led to an uncompensable loss of income, the complainant had also admitted this to the court, but the admission was not recorded.
The Federal Constitutional Court initially granted the constitutional complaint filed in response to this in the proceedings for a temporary injunction on the grounds of a possible violation of the complainant's fundamental rights under Art. 2 I in conjunction with Art. 20 III GG on the guilt-appropriate nature of the punishment for the traffic offenses of which he is accused and from Art. 101 I 2 GG on the lawful judge for the determination of the guilt-determining features and a guilt-appropriate punishment.
The above-mentioned violations of constitutional law resulted from the lack of findings in the district court judgment regarding the complainant's family and professional circumstances. As a result, the court of appeal lacked the basis on which it could have considered the circumstances of the specific case from an objective point of view in its assessment and decision. On this basis, it should never have been allowed to make its own decision on the merits.
The decision granting the application for a temporary injunction was confirmed in the main action.
The Federal Constitutional Court explicitly pointed out that the judgment of the District Court in the specific case did not allow the legality of the imposed sanction to be reviewed, thereby preventing the Higher Regional Court from making its own decision on the merits on this inadequate factual basis.
However, some of the fine senates of the higher regional courts did not take this decision as an opportunity to change their legal practice.
All too often, the decision of the district court in favor of the defendant is reversed by the higher court, with the respective public prosecutor's office or even the public prosecutor general's office repeating the reasons given, the legal consequences are modified by reducing the fine and ordering a driving ban, although the district court's judgment lacks a sufficient factual basis.
If the mandated defense counsel files a constitutional complaint against these decisions, which were made in violation of constitutionally guaranteed rights, this is usually not even accepted by the Federal Constitutional Court for decision.
Conclusion
Due to the target-oriented instruction of the Higher Regional Courts to set aside by way of a final decision official legal rulings in traffic offense proceedings that favor the defendant and not to refer them back to the Local Courts, the cases of violation of the defendant's rightcases of violation of the defendant's right to a penalty that is commensurate with the guilt of the traffic offense of which he is accused, arising from Article 2 I in conjunction with Article 20 III of the German Constitution. In addition, the right to the lawful judge is violated. In the context of this questionable development, the accused is practically without legal protection. The defense must be aware of the possibility of a "through decision" as early as the design of the district court hearing and, even if the prospect of an elimination of the driving ban exists, must have all content (e.g. momentary lapses and arguments of relativity) to be recorded in order to make a "through decision" as impossible as possible for the Higher Regional 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.