Adhesion process
In the adhesion process (from the Latin adhaesio “to stick ”, cf. adhesion ) in German procedural law civil law claims arising from a criminal act can be asserted directly in the criminal process instead of in a separate civil court process , provided that the subject of the dispute has not yet been brought before the courts has been.
regulation
The adhesion procedure was created in 1943 in order to spare the judiciary in times of war a double recourse to establish the same facts in criminal and civil proceedings. It is regulated in §§ 403 ff. StPO and benefits the victims of criminal offenses that have triggered a civil law claim for damages . The adhesion makes it possible to decide on this claim in criminal proceedings instead of leaving it to a separate civil process.
In practice, a related decision in adhesion proceedings rarely occurred because the court could refrain from making a decision if the application was unsuitable for processing in criminal proceedings, even taking into account the applicant's legitimate concerns, Section 406 (1) sentence 4 StPO old version. In the opinion of many courts, it was often unsuitable because of the associated delay in the proceedings.
In 2001, Federal Justice Minister Herta Däubler-Gmelin announced that she wanted to develop the adhesion process into an instrument “that is good for something”. With the "Law to improve the rights of injured persons in criminal proceedings" (Victims 'Rights Reform Act), which came into force on September 1, 2004, the adhesion process, which was last amended by the Victims' Protection Act on April 1, 1987, was fundamentally reformed. In particular, the possibility of the criminal court to reject an application for adhesion was severely restricted.
requirements
The initiation of an adhesion process requires an application for adhesion. According to § 403 StPO, the injured party is initially entitled to apply . Anyone who claims to have a property claim against him directly from the act of the accused is injured. Adhesion proceedings are not permitted in the case of mere endangerment offenses, as these do not serve to protect the legal interests of individuals.
The heir is also entitled to apply insofar as claims are concerned that can pass to the heir. In principle, the status of heir must be proven by a certificate of inheritance or in another suitable way in order to prevent the criminal proceedings from being delayed by inheritance disputes.
The question of whether the insolvency administrator has the right to file an application if insolvency proceedings have been opened against the assets of the injured party is highly controversial . Even today, case law is extremely inconsistent on the issue.
The applicant must be able to take legal action in terms of civil law in order to be able to submit an effective application for adhesion. Minors must be represented by their legal representative (usually their parents), and persons incapacitated by legal guardians. If there is a lack of process capability, the application for adhesion is not permitted.
Legal recourse to the ordinary courts must be given for the asserted claim. It lacks z. B. in the case of criminal offenses in the context of an employment relationship, because the labor courts are responsible for such claims .
The filing of an application for adhesion is easily possible in both official and private litigation. However, if the court decides in the criminal order procedure , the prevailing opinion is that the application for adhesion is not effective, so that a decision on a corresponding claim cannot be made either. The application for adhesion becomes effective, however, if a main hearing takes place in the matter because either the accused objects to the penalty order or the judge opens the main hearing because of concerns about the admissibility of the criminal application. In offense proceedings , a civil action does not take (instead of § 46 4 OWiG para. 3 sentence)
In juvenile criminal law , the adhesion procedure according to § 81 JGG does not apply if the procedure concerns a young person. In the case of adolescents (18 up to and including 20 years of age) who are still convicted under youth criminal law, it can be used in accordance with Section 109 JGG.
The court in which the criminal proceedings take place is always responsible. A jurisdiction based on the amount in dispute, as in civil court proceedings, does not exist in adhesion proceedings. ( § 403 last half-sentence StPO) The only exceptions are claims for which the regional court is responsible regardless of the amount in dispute; such claims cannot be made in the context of an adhesion process. In practice, this occurs mainly in the case of criminal offenses by public officials (e.g. bodily harm in office ).
Procedure
In the adhesion process there is no legal requirement. However, both sides (applicant and defendant) can be represented by a lawyer in the adhesion proceedings , and both sides can apply for legal aid for the adhesion proceedings . ( Section 404 (5) StPO) The appointment of a lawyer to assist a joint plaintiff does not also apply to the adhesion proceedings, so that the lawyer must be assigned separately in each case for the adhesion proceedings.
The application can be made at any time in the preliminary proceedings, before the main hearing and also during the main hearing up to the beginning of the final presentations. The formal requirements are the same as in civil court proceedings. ( § 404 Abs. 1 StPO) If the application is made before the start of the main hearing, the injured party will be informed of the time and place of the main hearing. He has the right to take part in the main hearing with his spouse, if necessary with his legal representative. ( § 404 Abs. 3 StPO) The application can be withdrawn until the judgment is announced. ( § 404 Abs. 4 StPO)
With receipt of the request in court that occurs pendency of a Adhäsionsantrags with the result that the claim can not be brought before other courts and enters the statute of limitations inhibition. It follows from this, however, that there is no lis pendens during the preliminary investigation; the claim can expire during an ongoing investigation. ( § 404 Abs. 2 StPO)
According to §§ 406d-406l StPO, the injured party has extensive procedural rights, including the right to inspect the investigation files. The law does not expressly provide the injured party with a right to submit a request for bias , but the Federal Constitutional Court has decided that the injured party is entitled to this right even without express statutory regulation.
judgment
Whether a decision is made at all in the adhesion process depends on Section 406 (1) sentences 4ff StPO. The court can therefore refrain from making a decision if the asserted claim is unsuitable for an adhesion process, especially if it significantly delayed the process. However, since 2006 it is no longer permissible not to deal with an asserted claim for compensation for pain and suffering on this basis in the adhesion process. The court must inform the applicant at an early stage of the intended waiver of the decision; it then issues a resolution on the matter. ( Section 406 (5) of the Code of Criminal Procedure) if the application for adhesion was made before the start of the main hearing and a decision in criminal proceedings has not yet been made, the applicant can lodge an immediate appeal against this decision. ( § 406a Abs. 1 StPO)
The application for adhesion is to be granted if it is well founded and the accused is convicted of the crime or a measure of reform and protection is imposed. The court can also issue a basic or partial judgment . A decision in the application for adhesion is therefore also possible if the accused is acquitted on the grounds that he is incapable of guilt and then placement in the penal system is ordered. In this case , it is true that the existence of a criminal capacity must also be checked, but the defendant is fully obliged to provide evidence of the existence of an inability to commit a criminal offense, while in the case of an inability to act it is sufficient that this cannot be ruled out in any case. ( § 406 Paragraph 1 StPO)
If the application for adhesion is unsuccessful because it is inadmissible or unfounded, the court will not make a decision. The application is therefore expressly not rejected or rejected. This in turn means that the claims can be pursued before the civil courts, i.e. the decision in criminal proceedings does not conflict with civil court proceedings. If the application is granted, however, the decision in the adhesion procedure becomes final and does not allow a later civil court procedure. ( § 406 Paragraph 3 StPO)
A comparison can also be concluded in the adhesion process. The settlement binds the applicant and the accused like a settlement concluded before the civil courts; it represents an enforcement order in the same way. If objections are asserted against the legal validity of the settlement, the criminal court is no longer responsible, but the civil court in whose district the court of first instance has its seat. ( § 405 StPO) The defendant may also be an acknowledgment of post and then to condemn after his acknowledgment. ( § 406 Abs. 2 StPO)
According to § 406b StPO, a conviction in the adhesion process is enforceable in the same way as a civil court judgment.
The accused can, if convicted in the adhesion proceedings, expressly limit a permissible legal remedy to the adhesion proceedings. This legal remedy can be decided by resolution without an oral hearing, but an oral hearing is required in the appellate body if the defendant or the applicant so requests. ( Section 406a (2) of the Code of Criminal Procedure). An application to restart the procedure can also be limited to the adhesion procedure. ( § 406c StPO)
If the accused is acquitted in the later proceedings, the conviction in the adhesion proceedings must also be overturned, even if this was not contested. ( § 406a Abs. 3 StPO)
The costs of the procedure are based on § 472a StPO. Court costs are only incurred if the claim is successful and must then be paid by the defendant. The situation is different with the judicial expenses: the court can also impose these on the applicant if he was unsuccessful with his application for adhesion.
literature
- Bernd-Dieter Meier , Nina Dürre: The adhesion process . In: JZ . 61st vol. 1, 2006, pp. 18-25.
- Klaus Schroth: The rights of the victim in criminal proceedings, CF Müller, Karlsruhe 2011, ISBN 978-3-8114-4317-4 .
- Lars F Klein: The adhesion process after the new regulation by the Victims Rights Reform Act: reviving a process believed dead? Publishing house Dr. Kovač, 2007 ISBN 978-3-8300-2861-1 .
- Sascha Böttner, Apply, apply, apply - the adhesion process , NJW-aktuell, issue 4/2016, p. 12.
Web links
- Kai-Uwe Herbst, Georg Plüür: The adhesion process , as of February 1, 2016, PDF document (982.3 kB). Download on the website of the courts in Berlin.
Individual evidence
- ↑ Article 5 of the Third Ordinance to Simplify the Administration of Criminal Justice of May 29, 1943, Reichsgesetzblatt Part I 1943 Number 57 of June 1, 1943, pages 343-344
- ^ Joachim Herrmann : The Development of Victim Protection , Journal for International Criminal Law Doctrine 2010, 236
- ↑ Focus magazine
- ↑ BGBl. 2004 I 1354-1358 (pdf)
- ↑ First law to improve the position of the injured in criminal proceedings (Victim Protection Act) of December 18, 1986 ( Federal Law Gazette I p. 2496 )
- ↑ BGH, November 5, 2009, AZ 3 StR 428/09
- ↑ Schroth, p. 215
- ↑ BGH, December 16, 2008, 4 StR 542/08
- ↑ BGH, May 23, 1952, AZ 2 StR 20/52
- ↑ Schroth, p. 212
- ^ BGH, decision of March 30, 2001, AZ 3 StR 25/01
- ↑ BVerfG, December 27, 2006, AZ 2 BvR 958/06
