Which income is relevant for day-fines in German law?

Question

For a number of minor crimes several European countries use a system of day-fines where the fine you have to pay is a number of days decided after the crime and a per-day-value which is based on your income. The German law §40 StGB says the day-value should be 1/30 of your monthly net income. At what time is this net income assessed? Is it the net income at the time of the crime or the net income at the time of trial?

My motivation for this question was a recent ruling against German politician Kay-Uwe Ziegler where he was condemned to 60 days at 40 euros each. 40 euros day-fine corresponds to a monthly net income of only 1200 euros, this guy currently is a member of the German Bundestag so his current gross income is (at least) around 15000 euros per month, so these 40 euros seem extremely low.

Answer 1

1. Part of legal training is learning how to develop a reasonable answer on your own. There are already treatises weighing the pros and cons of considering

   • the net income at the time of the crime,
   • time of the sentence, or
   • time of payment.

   You always need to corroborate your claim with what policymakers intended. To summarize:

   • When the daily rate system was installed, policymakers considered and discarded the idea of assessing the income at the time of payment (Laufzeitgeldstrafe). You can read the reports (05/4095) and minutes of debate to learn more.

   • One of the purposes of punishment (Strafzweck) is reintegrating convicts into society (Resozialisierung). Now, if you deem the income at the point of time of the crime as relevant and the criminal has lost her job (i. e. a significant portion of income) in the meantime, she may feel overburdened by the owed amount, especially if it leaves nothing to live on. This may elicit feelings of resentment against society, thus rendering the “reintegration” aspect potentially ineffective.

     On the other hand, if the criminal barely earned anything at the point of time of the crime, but now has a significant source of income, the fine, the punishment may be unnoticeable: She does not have to defer any pleasant expenses, e. g. a vacation abroad, because of obligation to pay a fine.

   • At the time of sentencing is probably the most convenient regarding proving income, too.

2. Lawyers do not know the entire law. In German practice, annotated codes of law (Gesetzeskommentar) are an essential tool. They are authored by legal professionals and as such non‑authoritative. The annotations just for § 40 comprise dozens of pages (including hundreds of citations).

   • aa) Maßgeblicher Zeitpunkt. Das tägliche durchschnittliche Nettoeinkommen des Täters ist grds. auf seine Einkommensverhältnisse zum Zeitpunkt bzw. im Zeitraum der letzten tatrichterlichen Verhandlung zu beziehen (allgM).

     Dr. Henning Radtke (editor). Münchener Kommentar zum Strafgesetzbuch. 4^th ed. 2^nd vol. C. H. Beck, Munich 2020, ISBN 978‑3‑406‑74602‑4, § 40, margin no. 71.

   • c) Das Zeitpunktproblem: Für die Bestimmung der Höhe des Tagessatzes sind grundsätzlich die Einkommensverhältnisse zum Zeitpunkt der letzten tatrichterlichen Verhandlung maßgeblich.

     Dr. Andreas Grube (editor): Strafgesetzbuch – Leipziger Kommentar. 13^th revised ed. 4^th vol. De Gruyter, Berlin 2020, ISBN 978‑3‑11‑030029‑1, § 40, margin no. 51.

   • Es kommt auf die wirtschaftlichen Verhältnisse zum Zeitpunkt der Entscheidung an (vgl. BGH 26, 328; 28 362);

     Dr. Thomas Fischer: Strafgesetzbuch. 71^st ed. C. H. Beck, Munich 2024, ISBN 978‑3‑406‑80811‑1, § 40, margin no. 6a.

   They all say more or less the same: In general, net income is assessed at the point of time of sentencing.

   • A look into the future was warranted if there are definite clues about your future income, for example you are about to retire, or you have been laid off but still work today during the notice period.
   • A look into the past was warranted to determine an average in case of varying incomes.

3. As an MP your economic situation can be likened to self‑employment. Thus the parliamentary allowance of 11k / month is actually the business’s income. However, the fine is supposed to hurt the individual, not the business.