Private prosecution
As a private prosecution offenses in are Austria and Liechtenstein criminal offenses referred to, not by the prosecutor's office are pursued but by the victim himself in court. In this respect, private charges represent an exception to the normally applicable official principle (also known as the “principle of official access”; Section 2 of the Code of Criminal Procedure ). German criminal procedural law also knows a similar construction with private charges .
Basics
The provisions on private prosecution can be found in Section 3 of Chapter 4 of the 1975 Code of Criminal Procedure, entitled Private Prosecutor and Subsidiary Prosecutor . In principle, criminal acts of which the criminal police or the public prosecutor become aware (e.g. through a criminal complaint ) must be investigated by the public prosecutor and, if necessary, brought to justice . In deviation from this, however, the legislature provides for certain offenses that do not affect the public interest that it is not the task of the public prosecutor to prosecute them. In these cases, the person who has been injured in his rights (i.e. the victim of a crime) must initiate the persecution. These acts of persecution include, in particular, bringing a private charge (which in its form has to correspond to an indictment ) at the competent court.
In the case of a private accusation, the usually linked right to prosecute and the ius puniendi (right to impose penalties) fall apart. While the acts of persecution in this case are carried out by a private person, the ius puniendi remains in the hands of the state courts. In principle, the private prosecutor has the same rights as the public prosecutor's office. Thus, the complainants can request the necessary to safeguard evidence or pecuniary arrangements coercive about in court (for example, seizures , or seizures ). What the private prosecutor cannot, however, in contrast to the public prosecutor's office, is to apply for arrest and the imposition or extension of pre-trial detention against the accused.
Special provisions for private charges
The victim is not entitled to private prosecution, in particular if he or she has expressly waived or has already forgiven the perpetrator of the commission of the criminal act. The private prosecutor must be present at the main hearing . Private charges are inadmissible against adolescents and young adults who fall under the Youth Courts Act 1988 , i.e. generally all offenders who have committed a criminal act before their 21st birthday. In these cases, private prosecutions automatically become authoritative crimes , which the public prosecutor has to prosecute with the authorization of the victim.
In Liechtenstein, the 6-week deadline for bringing charges, which was previously also applicable in Austria, still applies to private charges. Pursuant to Section 31 of the Liechtenstein Code of Criminal Procedure , the person who has been injured in their rights must submit an application for prosecution to the competent Princely Court of Justice within six weeks after the offense and the perpetrator are known, otherwise they will lose their right to prosecute.
Examples of personal charges
Classic examples of private prosecution are the offenses against honor , which are dealt with in Section Four of the Special Part of the Criminal Code . With a few exceptions, these offenses, which include defamation , accusation of a judicially punishable offense and insult , are private indictments. Public insult to a constitutional representative body, the armed forces or an authority is expressly not a private indictment offense, although it is one of the criminal acts against honor .
Another major exception is the so-called inspection in the family circle ( Section 166 StGB). Within the framework of this provision, the legislature privileges numerous property crimes, provided that these are committed to the detriment of a close relative and also turns them into private indictment offenses.
Private charges can usually be recognized in the text of the law by the phrase "[...] to be prosecuted only at the request of the injured party", either in the paragraph itself or in an associated section applicable to the offense. An overview of the private charges listed in the Criminal Code can be found below:
- Unauthorized treatment ( § 110 StGB)
- Defamation ( § 111 StGB)
- Accusation of a judicially punishable act that has already been dismissed ( § 113 StGB)
- Insult ( § 115 StGB)
- Violation of the confidentiality of letters and suppression of letters ( § 118 StGB)
- Violation of professional secrets ( § 121 StGB)
- Violation of a business or company secret ( Section 122 StGB)
- Exploration of a business or trade secret ( Section 123 StGB)
- Credit damage ( § 152 StGB)
- Numerous property offenses such as damage to property, theft, embezzlement, embezzlement, etc., provided that they are committed in the family circle ( Section 166 StGB)
- Marriage deception ( § 193 StGB)
- Partnership deception ( § 193a StGB)
In Nebenstrafrecht private offenses listed mainly include injuries of intellectual property rights :
- Violation of business or company secrets, misuse of entrusted templates ( § 11 and § 12 UWG )
- Infringement of utility models ( Section 42 GMG )
- Infringement of semiconductor protection rights ( § 22 HlSchG )
- Infringement of trademark rights ( § 60 MSchG )
- Violation of design rights ( § 35 MuSchG )
- Infringement of patent rights ( § 159 PatG )
- Violation of plant variety rights ( § 25 SortSchG )
literature
- Christian Bertel, Andreas Venier: Criminal Procedure Law . 8th edition. Manz'sche publishing and university bookstore . Vienna, 2004. ISBN 3-214-14839-7
- Stefan Seiler: Criminal Procedure Law . Facultas Verlags- und Buchhandels AG. Vienna, 2010. ISBN 978-3-7089-0663-8
