Criminal proceedings
September 6, 2012 | 50,00 EUR | answered by Jan Wilking
Hello,
I have a case running in my family.
I am accused of embezzling money in an inheritance matter
and of falsifying a document.
I have now received a penalty order for the alleged falsification of the document, but I have immediately filed an objection against it, with a fine totaling 2400.00 euros.
I am unemployed and receive 789.00 euros + 69.00 euros
housing allowance. My question is, is it not too much to have to pay 60 daily rates of 40 euros as an unemployed person?
In the other matter, a settlement is supposed to be reached
but the monthly installments are too high at 600.00 euros per month
Totaling 46000 euros. I have informed the plaintiff that I only have
850.00 euros monthly income and cannot afford it financially, to which he replied that I own an apartment, which is not true because I sold it in December 2011 due to other debts during these proceedings. Now he wants to report me for fraud as well.
Now my question is, if he knows exactly that I have a monthly
income of 850.00 euros and sold the apartment,
and I cannot afford the installments after some time
can he still report me for fraud after the settlement
because he knew that I could not pay it?
What do I have to pay for in a settlement?
I have legal protection insurance and the value of the dispute is 146,000 euros.
I am also mentally ill with severe phobias and depression, hardly ever leaving the house.
What advice do you have for me if I am summoned to a criminal proceeding
for fraud or forgery of documents and
I hire my lawyer, would
a medical certificate of inability to travel and participate in negotiations be sufficient or would
I be summoned forcibly. My attacks are so severe
that I have to vomit and if that were to happen in the courtroom
it would be so unpleasant, what is the practice
in the courts in such cases? If the judge requests a medical
certificate and I only send the lawyer with a certificate
from the therapist, how would a judge decide in practice.
Dear Seeker of Advice,
I am happy to respond to your inquiry taking into account the facts you have provided and your dedication as follows:
Without knowledge of the alleged offense, it is not possible to determine whether the number of daily rates is appropriate. The court determines the amount of a daily rate taking into consideration the personal and economic circumstances of the offender. It typically is based on the net income that the offender earns or could potentially earn in a day, as per § 40 paragraph 2 of the German Criminal Code (StGB). If you have not provided information about your income, the court will make an estimation. Based on your description, the daily rates indeed seem to be too high in relation to the state support you receive. Therefore, it may be advisable to file an objection against the penalty order, possibly limited to the amount of the daily rates (this would have the advantage that the court can decide by resolution and not to your disadvantage). However, remember the objection deadline (2 weeks from notification, according to § 410 of the German Code of Criminal Procedure).
Do not engage in a settlement that you clearly cannot fulfill. Instead, present evidence to the other party that you have very limited financial means and particularly that you have already sold your apartment and spent the money. The offense of fraud is unlikely to be established if the financial hardship was disclosed to the opponent in advance, thus preventing deception and resulting error. The distribution of court costs, attorney fees, etc. is usually stipulated directly in the settlement. It is important, though, that you or your representing attorney obtain a coverage promise from your legal expenses insurance beforehand and coordinate the settlement with the insurance to avoid being left with the costs.
To prove incapacity to negotiate, it is necessary that the claimed inability to negotiate is sufficiently proven for the court to consider it likely. In this regard, a private medical certificate may be sufficient. However, if the court deems that a medical certificate provided by you is insufficient, it may order a specialist examination. I would also like to point out that, according to case law, the absence of the accused due to illness is excused if the illness makes it unreasonable for them to participate in the main hearing; even if there is no incapacity to negotiate, but there is a risk of exacerbating the illness.
It is apparent that you are not represented by a lawyer in the criminal proceedings, which I find extremely concerning given your situation and, above all, your health condition. If you can prove your illness, it is likely that you are unable to defend yourself. In that case, you would be entitled to the appointment of a mandatory defense attorney, as per § 140 II of the German Code of Criminal Procedure. You can submit the application at any time.
I hope that I have been able to provide you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please bear in mind that, within the scope of initial consultation and without full knowledge of all circumstances, I cannot provide a definitive recommendation. If you seek a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the matter with them after reviewing all documents.
Best regards.
