Private lawsuit
In German criminal procedure law, private prosecution offers the injured party the opportunity to bring charges of a criminal offense before the criminal court without the involvement of the public prosecutor. This gives him the opportunity to bring charges himself in the case of criminal offenses in which the public prosecutor's office only brings charges if there is a public interest in prosecuting ( Section 376 of the Code of Criminal Procedure; private prosecution , see overview below).
The private action is regulated in the first section of the fifth book in §§ 374–394 of the Code of Criminal Procedure. In addition, the provisions of the Code of Criminal Procedure apply accordingly, unless otherwise regulated in Sections 374–394 of the Code of Criminal Procedure. With the private lawsuit, there is no longer any binding to the principle of legality . It is up to the private claimant whether to bring an action. In No. 87 of the RiStBV , details on the reference to private action by the public prosecutor are regulated.
admissibility
General
The private suit can be pursued without the involvement of the public prosecutor. It is in contrast to the public lawsuit. The private suit is only admissible for a limited number ( enumeration principle ) of criminal offenses. These offenses must not be linked to an official offense . The relevant criminal offenses are listed in § 374 StPO (see overview below).
Only the injured party or the person to whom the right of application has been transferred according to Section 77 (2) StGB is entitled to take legal action . However, the plaintiff must be able to take legal action . If this characteristic is missing, then only the legal representative (parents or guardians) can bring a private claim. In the area of commercial legal protection, commercial interest groups are also entitled to take legal action. In the case of certain complaints, only the superiors are entitled to bring an action.
Private charges against persons who were juveniles at the time of the offense are inadmissible; the public prosecutor may bring charges in these cases ( Section 80 (1 ) JGG ). In addition, a private lawsuit is not possible against extraterritorial parties ( §§ 18–20 GVG), as well as against members of the Landtag or Bundestag, if the parliament has not given permission. Legal representation by lawyers is permitted. The accused in private prosecution can call in defense counsel.
Atonement
For the offenses according to Sections 123, 185–189, 202, 223, 229, 241 and 303 StGB (see overview below), an attempt at atonement before a settlement agency is mandatory before the action is brought . Only when the attempted atonement has failed can a private suit be brought ( Section 380 StPO). The comparison bodies are usually the arbitration boards . For this reason alone, private lawsuits are very rare in Germany. It has been discussed several times whether to abolish the private lawsuit for lack of significant relevance.
The private lawsuit must be submitted to the court in writing or for the record of the office. The lawsuit must identify the facts and the perpetrator.
Criminal complaint
Often private lawsuits are also criminal offenses . While prosecution without an application is excluded in the case of an absolute application offense, a possible special public interest compensates for the lack of a missing application in the case of a relative application offense.
The following table clarifies the consequence of special and simple public interest or the lack of it for the filing of public charges (ÖK) in criminal complaints and private charges.
| offense | example | special public interest |
simple public interest |
no public interest |
|---|---|---|---|---|
| absolute claim offense | Home and family theft | ÖK depending on the criminal complaint | ÖK depending on the criminal complaint | |
| relative claim offense | Theft and embezzlement of low value items | + öK possible | ÖK depending on the criminal complaint | |
| Private lawsuit | Coercion, threat | + öK possible | + öK possible | - no ÖK |
| absolute application and private lawsuit offense | Trespassing, insult | ÖK depending on the criminal complaint | ÖK depending on the criminal complaint | - no ÖK |
| relative petition and private lawsuit offense | Bodily harm, property damage | + öK possible | ÖK depending on the criminal complaint | - no ÖK |
Even in the case of a private lawsuit that is also an application offense and in which there is no public interest, a timely and effective criminal complaint is required, whereby the filing of the private complaint within the application period of § 77b StGB also includes an application.
Overview of private law offenses
| Private action offense ( § 374 StPO ) |
Atonement attempt ( § 380 StPO) |
Application offense ( § 77 StGB ) |
|---|---|---|
| Trespassing ( § 123 StGB) | Yes | absolute (para. 2) |
| Offenses against libel ( Sections 185–189 StGB; cf. No. 229 RiStBV) | Yes | absolute ( § 194 StGB; exceptions) |
| Violation of the highly personal area of life through taking pictures ( Section 201a, Paragraphs 1 and 2 of the Criminal Code) | No | relative ( Section 205 Paragraph 1 Sentence 2 StGB) |
| Violation of the confidentiality of letters ( § 202 StGB) | Yes | absolute ( Section 205 Subsection 1 Sentence 1 StGB) |
| simple willful or negligent bodily harm ( §§ 223 , 229 StGB); not in the case of child abuse ( No. 235 para. 2 RiStBV) | Yes | relative ( § 230 StGB) |
| Coercion ( Section 240 Paragraphs 1 to 3 StGB) | No | No |
| Threat ( § 241 StGB) | Yes | No |
| Bribery or bribery in business dealings ( Section 299 StGB) | No | relative ( § 301 StGB) |
| Damage to property ( Section 303 StGB) | Yes | relative ( § 303c StGB) |
| Full intoxication ( § 323a StGB) if the offense committed while intoxicated is an offense mentioned above | s. above | s. above (para. 3) |
| Offense according to § 16 UWG (see No. 260 RiStBV) | No | No |
| Offense according to § 23 GeschGehG | No | relative (para. 8) |
| Criminal offenses according to § 142 Abs. 1 PatG , § 25 Abs. 1 GebrMG , § 10 Abs. 1 HalblSchG , § 39 Abs. 1 SortSchG | No | relative (each section 4) |
| Offense according to § 143 Abs. 1, § 143a Abs. 1 MarkenG | No | relative (§ 143 Abs. 4 MarkenG) |
| Offense according to § 144 Abs. 1 and 2 MarkenG | No | No |
| Offense under Section 51 Paragraph 1 and Section 65 Paragraph 1 DesignG | No | relative (§ 51 Abs. 4 DesignG) |
| Offense according to §§ 106 to 108 as well as § 108b Abs. 1 and 2 UrhG | No | relative ( § 109 UrhG) |
| Offense according to § 33 KunstUrhG | No | absolute (para. 2) |
Procedure
The private prosecution process begins with the submission of an indictment by the injured party to the court ( Section 381 of the Code of Criminal Procedure), which, in addition to the charge, must also contain the evidence and the main result of the investigation that are intended to justify a conviction. In addition, the costs likely to arise for the accused , e.g. for his legal representation and the court costs, must be advanced ( § 379 , § 379a StPO). Legal representation of the injured party is not necessary. As an exception to the state monopoly of indictment by the law enforcement authorities such as the public prosecutor in particular, the procedure is designed as an adversarial party process .
If several are entitled to private action, they can bring them independently of one another ( Section 375 of the Code of Criminal Procedure). After the private claim has been brought by one of the beneficiaries, the other beneficiaries can join the claim. The public prosecutor is not obliged to participate in the private prosecution proceedings. However, it can (also by producing the records of the court), the process at any time up to the date of legal force of the judgment to take ( § 377 Code of Criminal Procedure).
After hearing the accused, the court decides whether to open the main proceedings , reject the private suit or discontinue the proceedings due to minor guilt of the perpetrator ( Section 383 StPO). The main proceedings are essentially the same as after the public prosecutor has brought a public complaint ( Section 384 of the Code of Criminal Procedure).
If the hearing reveals that it is an official offense to be prosecuted ex officio , the court terminates the proceedings by means of a factual judgment. In the event of a conviction, reform and security measures may not be ordered ( Section 384 (1) sentence 2 StPO).
costs
The usual costs arise. Legal aid can be applied for in private litigation . An advance on court costs is due, except when legal aid is granted.
particularities
The counterclaim ( Section 388 StPO) is permissible in private litigation . Then a mutual private lawsuit must have been committed. The provisions of the private claim also apply to the counterclaim.
Pursuant to Section 383 (2) of the Code of Criminal Procedure, the court can discontinue the case if the guilt is minor , which in practice is the regular outcome of private litigation. In this case, the private prosecutor may also have to bear the defendant's defense costs.
If the court finds that it is an official offense, the matter is also closed. The files are presented to the public prosecutor beforehand.
The death of the private plaintiff also leads to the termination of the proceedings by resolution. However, in the case of certain offenses such as insulting or willful bodily harm, the procedure can be continued within 2 months by close relatives ( Section 393 (2), Section 374 (2) StPO, Section 77 (2) StGB).
Legal consequences
The legal consequences extend to all legal consequences of the offenses concerned. Although all sanctions can be imposed, measures for improvement and security may not be imposed according to § 384 StPO.
Appeal
The private prosecutor is entitled to legal remedies against the judgments and decisions that are usually available to the public prosecutor. In contrast to the prosecutor, however, the private prosecutor cannot appeal in favor of the accused. He can also request the reopening of the proceedings against the defendant. An appeal / request for revision can be made by both parties to the proceedings ( Sections 296 and 391 (2) StPO).
Finally, the withdrawal of the action and the reinstatement in the previous status are still possible. After the withdrawal of the action, however, it may not be brought again.
statistics
In 2018, the public prosecutor's offices resolved 199,946 proceedings by referring them to private prosecution. By contrast, the local courts settled only 320 private claims in the same period (238 without a main hearing, 46 with a main hearing but without a judgment, 36 with a judgment); there were 8 appeals (with 2 main hearings) and no revision.
history
The scope of the private action originally only concerned insults and bodily harm ( Section 414 of the Code of Criminal Procedure 1877) and was considerably expanded by the law on the discharge of the courts of March 11, 1921. The obligatory attempt at atonement originally only concerned the insult ( § 420 StPO 1877) and was expanded by the ordinance on the constitution and administration of criminal justice of January 4, 1924. The emergency decree of October 6, 1931 included the option of hiring in the event of minor guilt . Until 1998 dangerous bodily harm was also a private criminal offense.
Austria, Liechtenstein
For the legal situation in Austria and Liechtenstein see private prosecution offense . Private indictment offense and authorization offense (German: application offense) are mutually exclusive.
Switzerland, GDR
In Switzerland and in the GDR there was no purely private prosecution.
Web links
- Bernd Heinrich , Tobias Reinbacher: The private lawsuit University of Tübingen, 2018
- Tillmann Bartsch: Report on a Moribund: The private lawsuit. Legal, legal fact, reform and future perspectives - Part 1 ZFS 2017, pp. 40–51; Part 2 ZJS 2017, pp. 167–175
Individual evidence
- ^ Albin Eser : Adversatory and inquisitorial procedural models. A critical comparison with structural alternatives. In: Friedrich-Christian Schroeder , Manuchehr Kudtratov (Ed.): The main negotiation between the adversary and the inquisitorial model . Frankfurt am Main 2014, pp. 11–29
- ↑ Federal Statistical Office , Series 10 (Administration of Justice), Series 2.6 (Public Prosecutor's Offices), 2018
- ↑ Federal Statistical Office, Fachserie 10 (administration of justice), series 2.3 (criminal courts), 2018
- ↑ RGBl. P. 253; Materials: The entire material on the Reich Justice Laws , Vol. 3, Section 1, p. 268
- ↑ RGBl. P. 229 , Art. III No. 6; Materials: Negotiations of the Reichstag , Vol. 365, No. 1353
- ↑ RGBl. I p. 15 , § 36 (p. 20 )
- ↑ RGBl. I p. 537 , Part Six, Chapter 1, § 7 (p. 563 )
- ↑ lexetius.com/StPO/374
