As a co-plaintiff in is criminal law in Germany to participate ( connection ) referred the injured party or his successor in title to the indictment the prosecution in criminal proceedings. In addition to private prosecution, it represents an exception to the state's monopoly on criminal prosecution ( official maxim ) in criminal proceedings , which is why it is only permitted in the prosecution of certain criminal offenses. In contrast to private criminal proceedings, which are not public onesIf there is an indictment, the joint prosecutor joins the prosecution's indictment. This gives the injured party the role of a joint plaintiff. The co-plaintiff is granted certain rights, such as constant presence at the main hearing and the right to question witnesses and the accused.
Adhesion proceedings, which are concerned with the assertion of civil law claims for damages arising from the criminal act as part of the criminal proceedings , must be distinguished from the secondary action, but precisely because it involves civil law claims, it must be distinguished from the secondary action, in which the aim is the criminal conviction of the accused is subject to completely different principles.
In the Germanic and Carolingian times , the victim, as the prosecutor, determined the initiation and implementation of the proceedings. With the introduction of the inquisition procedure in the Holy Roman Empire of the German Nation , in particular by the Constitutio Criminalis Carolina of 1532, the right to prosecute was transferred to the state. The role of the injured party was thus limited to that of the witness. The introduction of the reformed criminal procedure with the public prosecutor as the prosecuting body as well as public and oral main hearings in the German particular states around the middle of the 19th century did not change anything. It was not until the Reich Criminal Procedure Code of 1877 that the co-lawsuit was introduced alongside the enforcement proceedings and private lawsuits.
The secondary action serves to improve the rights of the injured party in criminal proceedings. In addition, it gives the injured party the opportunity not to face the offender as a victim, which often serves to psychologically cope with the consequences of the crime.
Victims of certain crimes (or their survivors, if applicable) can acc. Sections 395 - 402 of the Code of Criminal Procedure (StPO) appear as a so-called secondary plaintiff in criminal or security proceedings in court.
Admissibility of an accessory prosecution
Which criminal offenses this is the case and which persons are entitled to do so is finally regulated in § 395 StPO. According to this, the accessory prosecution is permissible in the case of offenses against sexual self-determination (e.g. sexual abuse of children , rape , sexual assault, etc.), attempted murder , attempted manslaughter , exposure , all willful crimes of bodily harm , all crimes of freedom including extortionate kidnapping and Hostage taking possible. Recently, victims of stalking ( stalking in accordance with Section 238 of the Criminal Code) can also appear as joint plaintiffs in the event of violations of orders under the Protection against Violence Act . In the case of other unlawful acts, in particular negligent bodily harm (e.g. in traffic accidents) and offenses against honor ( insult , defamation , etc.), as well as various property crimes such as § 244 paragraph 1 number 3 and §§ 249 to 255, as The predatory attack on drivers according to § 316a of the Criminal Code is also permissible for the injured party to take an accessory action, "... if this appears necessary to protect his interests for special reasons, namely because of the serious consequences of the act." ( § 395 para. 3 StPO). If someone has been killed as a result of the illegal act, the right of secondary action is available to the parents, children, siblings and the spouse or partner in accordance with Section 395 (2) sentence 1 of the Code of Criminal Procedure . Furthermore, persons who have brought about the filing of public charges through an application for a court decision (Section 172) can join as joint plaintiffs.
Since October 1, 2009, for special reasons , a secondary action has been possible in the case of certain property crimes ( § 244 , § 249 , § 252 , § 255 , § 316a ). With the reform of copyright law, legal interests protected by trademark and copyright law are also eligible for secondary action, s. Section 395 (I) No. 6 StPO.
The admissibility of the secondary action is independent of the stage of the crime . Therefore, it is also permissible in the case of attempted crimes.
The declaration of affiliation must be submitted to the court in writing ( Section 396 (1) of the Code of Criminal Procedure). The joint plaintiff can be represented by a lawyer. The court can also inform him in the case of his need ( legal aid ) or in the case of particularly serious crimes in accordance with 397 a StPO, a lawyer can be assigned as counsel. In the event of conviction, the costs of this lawyer will be imposed on the accused ( Section 472 ).
Procedural rights of the joint plaintiff
Similar to the public prosecutor's office , the joint plaintiff has his own procedural rights , which are regulated in § 397 -401 StPO .
In particular, he is entitled to be present at the main hearing , even if he is to be heard as a witness . Furthermore - under the separately regulated conditions - he has important rights such as B. Rejection of judges and experts , right to apply for evidence, right to ask questions (Section 397 (1) StPO). In addition, he can appeal independently of the public prosecutor's office ( Section 401 (1) of the Code of Criminal Procedure), but not with regard to the amount of the sentence.
The declaration of affiliation expires if the secondary plaintiff revokes or dies ( Section 402 StPO). The criminal proceedings as such are then continued by the public prosecutor's office without the participation of the secondary plaintiff.
Special features in proceedings against young people
In proceedings against adolescents , a secondary action is possible as in proceedings against adults, Section 105 . The admissibility of the secondary action in proceedings against juveniles was only introduced by the 2nd Justice Modernization Act of December 22, 2006 with effect from December 31, 2006. According to this, the accessory prosecution according to § 80 Abs. 3 JGG is only valid for crimes against life (murder § 211 StGB, manslaughter § 212 StGB and suspension § 221 StGB), physical integrity (serious bodily harm § 226 StGB, mutilation of female genitals § 226a StGB Bodily harm resulting in death § 227 StGB) or sexual self-determination (serious sexual abuse of children, § 176a StGB, sexual abuse of children resulting in death, § 176b StGB, sexual coercion; rape Article 177 StGB, sexual coercion and rape resulting in death, Article 178 StGB) permitted. In addition, in the case of criminal offenses pursuant to Section 239 (3), Section 239a , Section 239b of the Criminal Code (deprivation of liberty, extortionate kidnapping, hostage-taking), if the victim was additionally severely mentally or physically harmed or exposed to such a danger as a result of the crime .
The victim of a crime is already involved in the proceedings by law. There is no enumerative limitation to certain offenses.
- ^ Eberhard Schmidt: Introduction to the history of the German criminal justice system . Vandenhoeck & Ruprecht Göttingen 1995 ISBN 9783525181157 p. 37 ff
- ^ Joachim Herrmann : The development of victim protection in German criminal law and criminal procedure law . ZIS 2010, issue 3, p. 236
- ↑ Klaus Schroth: The rights of the victim in criminal proceedings . CF Müller 2011, ISBN 9783811443174 , p. 141 ff
- ↑ Extension of victim rights in juvenile criminal proceedings? Rhineland-Palatinate Ministry of Justice, accessed on July 8, 2015 .
- ↑ ( BGBl. 2006, p. 3416 )