A summons to the main hearing reaches many defendants at an inconvenient time – due to illness, a work commitment, a holiday, or because their lawyer is unavailable on that day. The question of whether a trial date can be postponed therefore concerns almost every client. The short answer: it is possible, but there is generally no entitlement to it. The decision lies within the court's discretion.
Who sets the date?
The presiding judge sets the date for the main hearing (section 213 StPO). He summons the defendant, witnesses and experts and fixes the day and time. He also decides on cancelling or rescheduling a date that has already been set. A postponement is therefore not a right of the parties but a discretionary decision of the court, guided by the interest in swift but fair proceedings.
Can a date be postponed at all?
Yes. The presiding judge may cancel or reschedule a date where there are substantial grounds. What matters is a balancing exercise: the requirement of expedition and the effort of rescheduling – especially where numerous witnesses have already been summoned – are weighed against the defendant's interest in an appropriate defence. The weightier and more comprehensible the reason, the more likely a court will grant the request. Mere unease or the hope of a later date is not enough.
Which reasons justify a postponement?
In practice, the following grounds are mainly relevant: a medically certified inability to stand trial or serious illness of the defendant, the unavailability of the chosen defence lawyer due to a conflicting appointment, failure to observe the summons period, the need for further preparation after late access to the file, or the absence of an important witness. An unsubstantiated certificate or a short-notice, incomprehensible impediment, by contrast, will be scrutinised critically.
Unavailability of the defence lawyer
If the chosen defence lawyer is unavailable on the day of the hearing, this does not automatically create an entitlement to a postponement. The presiding judge will, however, often take this into account if the lawyer points out a scheduling conflict early and offers alternative dates. The position may be different in cases of mandatory defence: there, the hearing may generally not take place without defence counsel, so the lawyer's unavailability carries greater weight. The key is to notify and document the impediment as early as possible.
Summons period: was I summoned in time?
There must be a period of at least one week between service of the summons and the main hearing (section 217 StPO). If this period is not observed, the defendant may demand that the hearing be adjourned. A summons issued at too short notice is therefore a frequent and viable starting point for obtaining more time to prepare.
What happens if I simply fail to appear?
Failing to appear without an excuse is not an option. If the defendant stays away without sufficient excuse, the court may order that he be brought before the court or issue a warrant of arrest to secure the conduct of the main hearing (section 230 StPO). If the person concerned has merely lodged an objection against a penalty order and fails to appear without excuse, the objection is rejected – the penalty order then becomes final (section 412 StPO). The same applies to an appeal lodged by the defendant (section 329 StPO). Anyone who is unavailable should therefore never simply stay away, but have a reasoned request for postponement filed in good time.
Interruption or adjournment?
Once the main hearing has begun, the law distinguishes between interruption and adjournment (section 229 StPO). An interruption is possible for a limited period without the need to start afresh. If this framework is exceeded or the proceedings are adjourned, the hearing must later begin again from the start. Which route is available depends on the stage of the proceedings and the reason for the delay.
How we proceed
A request for postponement should be well reasoned, documented and filed as early as possible. We examine whether there is a viable ground, submit the required evidence and usually offer the court alternative dates – this increases the prospects of the request being granted. We also check whether the summons period was observed and whether the defence can be sufficiently prepared by the date of the hearing.
Frequently asked questions
Am I entitled to a postponement? Generally not. The postponement lies within the presiding judge's discretion. However, where there are weighty, documented grounds – such as an inability to stand trial or too short a summons period – the prospects are good.
Is a sick note enough? A simple certificate of incapacity for work is often not sufficient. As a rule, a certificate is required that comprehensibly attests an inability to stand trial.
What if my lawyer is unavailable on the date? This should be notified to the court immediately. In cases of mandatory defence the unavailability carries greater weight; otherwise the court decides after weighing the circumstances.
Have you received a summons to a main hearing and cannot attend? Get in touch promptly – the earlier we react, the better.
This article provides general information and does not replace advice in an individual case.
Verfasst von Rechtsanwalt Philip Bafteh, Strafverteidiger in Bonn. Philip Bafteh veröffentlicht regelmäßig zu strafrechtlichen und wirtschaftsrechtlichen Themen und verteidigt Beschuldigte in Ermittlungs- und Hauptverfahren.
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