Victims Compensation Act

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Basic data
Title: Law on Compensation
for Victims of Violence
Short title: Victims Compensation Act
Abbreviation: OEG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Private law , social law
References : 89-8
Original version from: May 11, 1976
( BGBl. I p. 1181 )
Entry into force on: May 16, 1976
New announcement from: January 7, 1985
( Federal Law Gazette I p. 1 )
Last change by: Art. 2a G of April 15, 2020
( Federal Law Gazette I p. 811, 812 )
Effective date of the
last change: 		predominantly December 20, 2019
(Art. 3 G of April 15, 2020)
Expiry: January 1, 2024
Art. 58 G of December 12, 2019
( Federal Law Gazette I p. 2652, 2723 )
GESTA : I011
Please note the note on the applicable legal version.

The Victims Compensation Act (OEG) is a German federal law in the area of social compensation law . It came into force on January 7, 1985. It replaced the previous OEG from May 15, 1976.

According to Section 68 of Book I of the Social Code , the law is a special component of the Social Security Code and will be included in the Fourteenth Book of the Social Security Code on January 1, 2024 .

purpose

The guiding principle (the ratio legis ) of the law is the responsibility of the state to protect its citizens from acts of violence and damage caused by criminal acts, since it is the bearer of the monopoly of violence and the prevention and fight against crime. The Federal Social Court ruled this on November 7, 1979. If this protection fails, the state is liable to the victim according to the requirements of the OEG as a result of the general claim to sacrifice.

If the victims of violent crimes become unable to work, helpless or in need of care, the state must grant them protection. This protection is a result of the welfare state principle according to Article 20, Paragraph 1 of the Basic Law .

applicability

In principle, all people who are legally resident in Germany and have been victims of an act of violence are entitled to compensation under the OEG. The unborn child, the nasciturus , can also be entitled to benefits (for example in the event of damage caused by the rape of the pregnant mother).

In addition to Germans and EU nationals, other foreigners who have been legally resident in Germany for three years are also entitled to the full range of services offered by the OEG. Other foreigners who have not been in Germany for three years, however, only receive benefits independent of income. Foreign visitors and tourists who are temporarily staying in Germany for a maximum of three months can only receive hardship benefits in the form of a one-off payment in addition to costs for medical and medical treatment.

Claims to the full range of services also exist if the so-called reciprocity exists. Reciprocity here means that a German would have a claim based on a comparable law in the home country of the foreigner concerned. For most countries, however, there is no reciprocity.

The benefits of the OEG are based on the Federal Supply Act as the “Basic Law of Social Compensation”, as the OEG belongs to this area of ​​law. For German and EU nationals, benefits under the OEG are also provided abroad. In the case of all other foreigners, the entitlement expires when they leave Germany and is compensated with a severance payment.

content

Basic claim

The most important regulation is the claim clause in § 1 Abs. 1 OEG. Accordingly, anyone who has suffered damage to their health through an intentional, illegal, physical attack is entitled to care.

An assault here is any action aimed directly at the body of another in a hostile direction of will. An act of aggression must have taken place, although according to the case law, physical contact is not required. Attacks include, for example, “classic” bodily harm , but also sexual offenses and some special cases, such as extreme neglect of a small child. Crimes against personal freedom, such as suspension or deprivation of liberty , are also included, provided that they are enforced through the use of physical violence, even if the actual damage only begins when the victim has escaped from the predicament (e.g. by a Fall out of the window). Mere threats of violence or the creation of a general danger situation, e.g. B. removing a manhole cover. According to current case law, even the threat of a fully loaded and unlocked firearm does not constitute a sufficient entitlement to claim under the OEG. Stalking does not automatically constitute a physical attack; what is required is an act of violence directed directly at the body, but in any case physical violence must be imminent.

A medical intervention does not in principle constitute a physical attack; something else only applies if the medical intervention in no way served the patient's wellbeing and the doctor was guided by irrelevant considerations, such as financial advantages.

A physical attack can also exist in parallel to Section 13 of the Criminal Code if the success of the criminal act is achieved through failure (this does not mean failure to provide assistance) and the perpetrator assumes the position of guarantor towards the victim .

Any physical attack is unlawful, unless there are grounds for justification , such as B. the self-defense or a justifying emergency .

On the part of the perpetrator, intent lies in the “knowing and willing” of the physical attack and the physical damage. Conditional intent is sufficient for this. However, the intent does not have to refer to the consequences of damage that result from the injury (e.g. if a gunshot wound requires the amputation of a leg). Willful intent is also given if the offender has made a mistake in terms of permissions .

A third person who was not directly injured by the act can also have a right to care if he or she has suffered so-called shock damage through perceiving or becoming aware of the act. The prerequisite for this is that the psychological damage suffered is closely related to the original offense, for example if the person was an eyewitness to the crime or if the victim is a close person such as his or her own spouse.

The effects of the damage consequences are measured using the degree of damage consequences (GdS). The GdS is to be assessed in all areas of life according to the general effects of the functional impairments caused by the physical, mental or emotional health disorders recognized as a consequence of damage. The degree of damage is to be measured according to degrees of ten from 10 to 100; a degree of damage that is up to five degrees lower is included in the higher degree of ten (“medical” GdS). However, if there is temporary damage to health as a result of an unlawful physical attack that heals without consequences, the injured party has no claim to victim compensation. A period of up to six months is defined as temporary. For the healed damage consequences, however, there is an entitlement to medical treatment according to § 1 OEG in conjunction with § 10 para. 1 BVG.

Exclusion of the claim

Reasons for refusal according to § 2 OEG may conflict with the claim . According to this, care will be denied in particular if the injured party has (partly) caused the damage himself or if it would be unreasonable to provide care for other reasons. Inequity exists, for example, if the victim belongs to a criminal organization and is attacked in this context. The entitlement also does not apply if the benefits paid would ultimately go to the perpetrator. This is particularly conceivable in the case of violence within the family by the father or mother.

According to Section 1 (11) OEG, there is also no entitlement to compensation in cases in which the attack was carried out with a motor vehicle. This regulation was criticized after the attack on the Berlin Christmas market at the Memorial Church by Roland Weber, victim commissioner of the state of Berlin, because it excludes all victims and their relatives with the exception of the relatives of the Polish truck driver who was shot. Instead, according to Section 12 of the Compulsory Insurance Act, you are entitled to compensation from the Compensation Fund for Damage from Motor Vehicle Accidents (Road Victim Assistance). The Federal Ministry of Labor stated at the time that it had been working on an amendment to the compensation law for some time, with the aim, among other things, of merging the regulations.

Funding and administrative procedures

§ 4 OEG names the cost bearer, 40% of which is borne by the federal government, the remaining 60% by the state in which the damage took place. This takes into account the idea that the damage represents a failure of the police to prevent crime in the state of the crime scene.

As a rule, the costs of medical treatment (and only those are eligible here) are initially borne by the health insurance companies. They then receive a lump sum from the federal and state governments to offset their advance payments.

If services are granted by the OEG, certain statutory claims according to § 5 OEG are transferred to the state. This means that the state can assert claims for damages against the offender if and to the extent that these correspond to the benefits under the OEG in conjunction with the Federal Supply Act.

The claims are transferred to the state by way of legal session at the time of the offense. If the perpetrator and the victim agree on a payment out of court or in criminal proceedings, this only affects claims that have not been transferred, such as compensation for pain and suffering (because the victim is no longer the holder of the claim for damages).

The country then tries to claim the cost of medical treatment from the perpetrator.

In § 6 OEG local jurisdiction, and the applicability is governed by rules of procedure. According to § 6a OEG, the Federal Ministry of Labor and Social Affairs assumes the role of authority under the European Convention of 1983 on Compensation for Victims of Violent Acts.

According to § 7 OEG, the legal process of social justice is basically given; if war victim welfare benefits are paid, administrative legal channels are exceptionally available .

Transitional provisions

According to § 10 OEG there is basically only a claim for damage that was committed after the OEG came into force. The OEG came into force on May 16, 1976. Sections 10a – d OEG also regulate certain cases of hardship in which

  • for foreigners who do not have a basic entitlement according to § 1 OEG,
  • or for acts in the former GDR ,
  • or for acts that were committed between May 23, 1949 and May 15, 1976,

can be performed differently.

Benefits and amount of benefits

The OEG does not contain any independent pension services. Rather, according to Section 1 (1) OEG, the entire service catalog of the Federal Supply Act is to be applied. This includes, in particular, curative treatment of the injury, non-income pension benefits due to the permanent consequences of the damage, as well as income-related benefits with a wage replacement function.

If the injured party dies as a result of the damage, the surviving dependents are entitled to benefits from the survivor's pension. The Federal Constitutional Court ruled that it was incompatible with the Basic Law for the other parent of a joint illegitimate child to be excluded from benefits, even if he had to give up his gainful employment in order to raise the children due to the death of the injured party. Since then, due to a special regulation, benefits can also be granted to the other parent of an illegitimate child as long as the child is under 3 years old.

In 2017, the Dresden Social Court ruled that in the event of compensation for occupational damage through the Victims Compensation Act, private accident insurance pensions are to be offset against the victim compensation pension.

application

Application statistics

Of the 210,000 cases recorded under the heading of violent crime in Germany in 2008, an application was submitted by 10.5% of those entitled. Of the applications submitted, 44% were rejected, with the rejection rate being lowest in Rhineland-Palatinate with 30% and Bavaria with 33% and highest in Saarland with 64% and Berlin with 63%.

Judgments of the Federal Social Court

Evidence

With regard to the burden of proof, the Federal Social Court stated in the guiding principle of the judgment of May 31, 1989: "The simplification of evidence created for war victims according to § 15 KOVVfG also applies to victims of violence." The applicability of the KOVVfG is based on § 6 para. 3 OEG: Das Law on the administrative procedure for pensions for war victims, with the exception of Sections 3 to 5, as well as the provisions of the Social Court Act on preliminary proceedings are to be applied.

On December 12, 1995, it was decided that, if there are no other direct witnesses, the information provided by the injured party alone can suffice if it is credible under the circumstances.

Offense

Two judgments by the BSG deal with the question of whether there was an "intentional, unlawful physical attack". On November 8, 2007, the BSG decided that children who are not under the age of criminal offense can also commit a deliberate attack because it is not a question of culpability within the framework of social compensation law.

Two further judgments deal with reasons for refusal: In a case of March 29, 2007, the BSG denies that a prison inmate contributed to the damage simply by staying in prison in such a way that compensation under the OEG should be rejected.

On July 6, 2006, the BSG decided, for which there is an editorial motto: "A contribution by the victim of violence that remains below the threshold of co-causation excluding care can, together with other circumstances, make the granting of benefits appear unreasonable."

criticism

In a broadcast of the NDR magazine Panorama in 2013, cases were reported in which the pension offices repeatedly rejected unjustified reports, arbitrarily reduced the degree of damage, delayed the payment for years and simply stopped after a few months with the speculative assumption of an improvement.

In the film " Time of the Nameless " it is criticized that the term " human trafficking " does not appear in the law.

Convention of the EU member states

The euro Council has set up the European Convention on the Compensation of Victims of Violent Crimes on 24 November 1983rd There is "reciprocity" for the contracting states to this Convention. Germany acceded to the convention and ratified it on March 1, 1997.

See also

literature

Web links

Individual evidence

  1. ↑ Art. 58 No. 15, Art. 60, Paragraph 7 of the Act regulating the Social Compensation Law of December 12, 2019, Federal Law Gazette I p. 2652
  2. ^ BSG, judgment of November 7, 1979, Az. 9 RVg 2/78; BVBl. 6/1980, p. 1.
  3. ↑ so Bundestag printed paper VII / 2506, p. 9.
  4. ↑ a b Victim Compensation Law. June 1, 2016, Federal Ministry of Labor and Social Affairs ( BMAS ), Wilhelmstrasse 49, 10117 Berlin.
  5. ↑ BSG, September 24, 1992, AZ 9a RVg 5/91
  6. ↑ BSG, November 30, 2006, AZ B 9a VG 4/05 R
  7. ^ BSG, December 10, 2003, AZ B 9 VG 3/02 R
  8. ↑ BSG, judgment of December 16, 2014 , Az. B 9 V 1/13 R, full text.
  9. ↑ BSG, judgment of April 7, 2011 , Az. B 9 VG 2/10 R, full text.
  10. ^ BSG, April 29, 2010, AZ B 9 VG 1/09 R
  11. ↑ BSG, February 4, 1998, AZ B 9 VG 5/96 R
  12. ^ BSG, September 10, 1997, AZ 9 RVg 9/95
  13. ↑ BSG, June 12, 2003, AZ B 9 VG 1/02 R
  14. ↑ Iris Borrée, Johannes Friedrich, Barbara Wüsten: The little-known victim compensation law. The benefits and their granting - practical problems and need for amendment. Social Security 2/2014, Weißer Ring - non-profit association for the support of crime victims and for the prevention of criminal offenses e. V.
  15. ↑ Spiegel Online: According to the law, victims of attacks do not receive any compensation, December 23, 2016 , accessed on May 9, 2017.
  16. ↑ BVerfGE 112, 50 , November 9, 2004, AZ 1 BvR 684/98
  17. ^ SG Dresden, judgment v. 9.03.2017, S 39 VE 25/14. Quoted after crediting private accident insurance pensions against victim compensation pensions. Haufe.de, April 28, 2017, accessed on May 13, 2017 .
  18. ↑ Statistics on state compensation for victims. (No longer available online.) Weisser Ring , archived from the original on January 13, 2012 ; Retrieved December 23, 2011 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.weisser-ring.de
  19. ↑ State compensation for victims in Germany in 2008. (PDF; 23 kB) (No longer available online.) Weisser Ring , archived from the original on October 19, 2013 ; Retrieved December 23, 2011 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.weisser-ring.de
  20. ↑ Statistics on state compensation for victims . Weißer Ring - non-profit association for the support of crime victims and for the prevention of criminal offenses e. V.
  21. ↑ BSG, judgment of May 31, 1989 , Az. 9 RVg 3/89, guiding principle.
  22. ↑ BSG, Az. 9 RVg 6/95 - without source
  23. ↑ BSG, judgment of November 8, 2007 , Az. B 9 / 9a VG 3/06 R, full text
  24. ↑ BSG, judgment of March 29, 2007 , Az. B 9a VG 2/05 R, full text.
  25. ^ BSG, judgment of July 6, 2006 , Az. B 9a VG 1/05 R, full text, guiding principle of the editorial team.
  26. ↑ Without Mercy: How Victims of Violence Are Harassed by Authorities. NDR , accessed on September 7, 2016 .
  27. ↑ Film: Time of the Nameless by Marion Leonie Pfeifer 1:00:30