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Calculation of daily rate

February 23, 2012 | 30,00 EUR | answered by Bernhard Müller

The negotiation is about determining the daily rate from a fine. The judge assumes a daily rate of 30 euros, and I presented him with my income statement. The taxable income plus depreciation minus health insurance contributions results in my income being 20 euros per day. However, the judge is clearly biased and trying to incur unnecessary costs by scheduling a second day of negotiation. His tactic... he asks me questions like "What car does your wife drive" etc. He is obviously trying to indirectly assume a higher income for me. I have made it clear to him that I will not answer questions that clearly have nothing to do with my income. Unfortunately, I failed to file a motion of bias on the first day of the negotiation (the judge said if you don't answer my questions, I will conduct a business audit, which will be costly). I know how to file a motion of bias and what purpose it serves (revision...).

My question: Does it make sense for me to immediately file a motion for evidence (documentary evidence) on the next day of negotiation in the form of... I hereby request that the documents (a) income statement (b) proof of health insurance contributions be acknowledged as evidence, in order to prove that my income is 20 euros per day. After that, should I read out the documents or submit them as an attachment to the protocol?
If the motion for evidence is rejected, I will of course respond with a motion of bias. I will not answer any further questions that clearly have nothing to do with my income.

What advice can you give me on how to behave? In the end, I will appeal the verdict with a revision (substantive and procedural complaint). My motion of bias will then be in the form:

Hereby I express concern about bias towards the presiding judge Mr. xxxxxx in this proceeding.

Reasons:

a; The remark of the presiding judge that he wanted to conduct a business audit and that this would incur costs for me.

or b; The judge rejected my proposed motions for evidence and, when reasonably considered in all circumstances, gave me reason to believe that the presiding judge maintains an internal stance that could disturb his impartiality. The judge's biased attitude borders on arbitrariness. Biased statements like these violate objectivity, neutrality, and distance.

Bernhard Müller

Dear inquirer,

the motion for evidence is reasonable. Whether this can prove the amount of your earnings cannot be said in general terms. The income surplus calculation is indeed an indicator, but it is created by you or your tax advisor and could therefore theoretically be based on incorrect information. However, the judge must bring good arguments supported by facts if he sets a higher daily rate than what results from that. He cannot simply do so "out of the blue".
A motion for bias with the justification a) would be dismissed as belated and therefore inadmissible according to § 26a I No. 1 StPO. If your motion for bias is to have a chance of success, it must be based on justification b).
Since this is a trial that takes place in the District Court through an objection against a penal order, appeal should be filed initially against a judgment with which you are not satisfied, rather than a revision.
A revision can then be filed later against the appellate judgment.

I hope that my answer was able to help you.

Sincerely,

Bernhard Müller Lawyer