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… about Alternatives to Incarceration

For defendants or convicted persons, there are in some cases alternatives to imprisonment, which we will explain in the following.

Community Service

If a person is fined, there are several options to fulfil the fine. The money will be fully paid and as agreed (in rates). The person goes to prison, attends default imprisonment or changes the fine into community services.

Changing the fine into community services is available in particular to persons with low financial resources.

 

The community service is therefore not automatically ordered but must be requested by the convicted person. The application to change the fine into community service must be submitted to the competent enforcing authority (public prosecution office).

 

In the conviction, the court determines the amount of the fine. At the same time, the number of daily rates and the amount of daily rates are determined. The number of daily rates depends on the offence. The amount of daily rates depends on the net income of the convicted person.

 

A daily rate is equivalent to 8 hours, i.e. 1 day of work. 1 daily rate equals 1 day of work. For example, if the person is only allowed to work 6 hours a day due to health problems, the number of working days is extended.

 

An example:

conviction to 100 daily rates

in case of an 8 hour day: 100 daily rates = 100 days of work

in case of a 6 hour day: 100 daily rates = 175 days of work

 

Community service can be any activity for the general public, e.g. care and repair of green spaces, children's playgrounds or cemeteries, cleaning and aid work in a social station or hospital, aid work at a home or sports club, etc.

 

The aim of the community service is symbolic restitution and therefore a work for the community.

 

Different authorities are responsible for the placement and supervision of the community service.

 

If you want to change a fine into community service, you have to file an application and a place of employment has to be found. You can do this on your own or seek support from an association of the non-governmental offender support service (ZEBRA project). You find contact persons here!

 

Community service can also be a condition from the court. In this case, the probation service or the court assistance agency usually undertake the placement and supervision. In most cases, the placement is transferred to the non-governmental offender support service (ZEBRA project). 

Juveniles

Unlike adults, juveniles can be directly assigned to community service instead of receiving a penalty. This can take place when the criminal proceeding is terminated or as a condition for a conviction (sections 10,15, 45, 47 Youth Courts Act).

The competent youth welfare offices usually take over the placement and supervision of the community service for juveniles.

The aim is to support juveniles in their professional orientation, teach them social skills and integrate them into work or training.

 

 

Victim-Offender-Mediation (VOM)

The victim-offender-mediation is not intended as an alternative to a conviction, but as an out-of-court criminal proceeding that takes both the victim's and the offender's perspective into account.

The victim-offender-mediation is mainly a restitution of the offender towards the harmed person.

 

If offenders deliberately deal with their offence and the individual results of the offence (from the victim's perspective) within the victim-offender-mediation, the successfully concluded VOM can have a mitigating effect.

 

If the victim-offender-mediation is considered successful by the persons involved, penalties of imprisonment may be suspended for probation or preliminary investigations may be terminated (prior to the preferment of charge). It always depends on the type of offence and the expected sentence.

 

Find more information about the victim-offender-mediation here.

 

Application for Postponement of Sentence

A convicted person may apply for a postponement of sentence if immediate imprisonment results in significant disadvantages for them or their families.

The reason for a postponement of sentence for instance could be a serious mental or physical illness, if the medical treatment cannot be carried out in custody (unfit for punishment).

 

The enforcing authority needs official medical statements and expert opinions in order to be able to understand the details of the state of health.

 

In the case of pregnancy of the convicted person, the postponement of sentence is at the discretion of the enforcing authority.

The postponement of sentence may not exceed a period of 4 months.

 

If the enforcing authority rejects the application for postponement of sentence, the sentenced person may object to the court (section 458 German Code of Criminal Procedure). An immediate appeal to the Higher Regional Court (Oberlandesgericht) against the decision is possible before enforcement begins.

Application for Pardon

An application for pardon is submitted to a pardons office (Gnadenstelle). There are two types of pardon.

  1. The penalty of imprisonment is reduced to probation.
  2. The pardon may result in a full or partial remission of the penalty of imprisonment.

 

The pardons office that decides on an application for pardon is not bound by the law, unlike the court.

 

A pardon is about removing legal penalties following a lawful conviction. In this context, the application for pardon is the last appellate remedy and can only be applied for if all other appellate remedies have been exhausted beforehand (e.g. an application for suspension of the sentence).

 

A pardon is a discretionary decision and depends on the specific individual case.

 

Its function is to do justice when statute and law cannot. One example of this is when certain personal circumstances cannot be taken into account legally.

 

However, there is no legal right to pardon. This is subject to the pardon regulations and any convicted person can apply for a pardon.

 

The pardon regulations determine the course of the proceedings and differ from state to state within Germany. The type of penalty does not matter. However, pardons are mainly sought for imprisonment penalties. It is advised to seek legal advice from a lawyer before applying for pardon.The associations of non-governmental offender support may also be able to help.

 

The application for pardon and the court proceedings are free of charge.

 

There are no formal requirements for the application, but there are sample letters on the internet. It is recommended to write the letter with legal assistance from a lawyer. The proceedings take about 2 to 4 months.

 

The application for pardon results in a suspension of enforcement, which means that even if it is rejected, a postponement of sentence of 2 to 6 months can be achieved.

 

The prospect of pardon exists, for example,

  • in the case of serious illness,
  • restitution of the damage,
  • therapy instead of sentence
  • or other circumstances.

For more information (sources)