Nebenklage is a term of criminal law and enables the injured party of a criminal offense or a legal successor to participate in criminal proceedings in Germany against the accused. It is called Nebenklage for the reason that the actual charges against the accused are brought by the public prosecutor's office. Thus, the Nebenklage is an exception to the actual prosecution monopoly of the state within the framework of the Offizialmaxime.
On the state's monopoly on the use of force, see also "Criminal Law". Because the incidental action is an exception to the regular proceedings, it is only available in certain cases of the commission of a crime. Adhesion proceedings are often confused with accessory action. In the adhesion procedure, it is possible for the injured party to assert civil claims for damages against the defendant within the framework of the criminal proceedings. However, the actual aim of the accessory action is to convict the defendant.
The purpose of the Nebenklage is to improve the position of the injured party in criminal proceedings. The injured party is therefore given the opportunity to face the defendant not as a victim, but as a plaintiff. This has a psychological effect, among other things.
Section 395 of the Code of Criminal Procedure regulates in which cases and under which criminal offenses the Nebenklage is admissible.
Authority to join as a joint plaintiff
Any person who has been injured by an unlawful act pursuant to
1. the §§ 174 to 182, 184i to 184k of the Criminal Code,
2. the §§ 211 and 212 of the Criminal Code, which was attempted,
3. the §§ 221, 223 to 226a and 340 of the Criminal Code,
4. the §§ 242 to 238, 239 III, 239a, 239b and 240 IV of the Criminal Code,
5. § 4 of the Protection Against Violence Act [...]
The above-mentioned norms include the criminal offenses of sexual self-determination, attempted murder and manslaughter, abandonment, all bodily injury offenses that are committed intentionally, freedom offenses with extortionate kidnapping and hostage taking. The list is not exhaustive at this point. If a victim has been killed or murdered by the defendant, the parents, children, siblings and the spouse or partner have the right to file an accessory action pursuant to Section 395 II of the Code of Criminal Procedure. The accessory action is admissible irrespective of the stage of the offense, i.e. an attempt or completion.
The application for ancillary relief must be submitted to the court in writing. This follows from Section 396 I of the Code of Criminal Procedure. The injured party is free to be represented in court by a lawyer. If the injured party is indigent, he or she could be granted legal aid or, if the offense is of a certain severity, a lawyer could be appointed to assist him or her. If the defendant is convicted, then the costs for the counsel are imposed on the convicted person. The reason for the special requirements for legal action in the context of the criminal act committed is the special need for protection of the injured party.
As already mentioned, Sections 395 et seq. of the German Code of Criminal Procedure (StPO) allow the person injured in a criminal act to participate in the proceedings against the defendant as a joint plaintiff in certain cases. For this to happen at all, a public complaint must have been filed in advance. Precisely because public action must have been brought beforehand, the injured party cannot, unlike in the case of private action, pursue or enforce a criminal claim in court on his own initiative. This is the responsibility of the state within the framework of the monopoly on the use of force. The Nebenklage is thus an accessory right and not an independent procedure in its own right. Should the aggrieved party declare his or her Nebenklage, he or she is to be regarded as a full participant in the proceedings and receives comprehensive participation rights in addition. He is independent of the public prosecutor's office and pursues his own action.
Precisely because the plaintiff has his own rights, he is authorized, among other things, to make statements, ask questions, issue motions, and affect legal remedies. He is not obliged to be purely objective. Simply because of the victim's position, this would not be possible at all in most cases. The opportunity for the victim to participate as a joint plaintiff in the proceedings also has several reasons from the state's point of view. Among other things, the interests of participation in the proceedings and conviction and rehabilitation are safeguarded. Likewise, this also logically results in an increased or more positive image of the legal system. Alone the satisfaction of the victim in court and to attend the proceedings with all its trial dates, gives the whole its own justification for the Nebenklage.
However, this also makes sense when considering that there are always two sides to a criminal offense involving a victim. That of the perpetrator and that of the victim. In the normal case, without the joint plaintiff, situations may arise in which the evidence is insufficient or there may be doubts about what happened during the crime. In these moments, it makes sense to have a joint plaintiff who can help explain the facts of the case and contribute to the clarification. This also makes it easier to expose any false statements made by the perpetrator. This function within the proceedings is also called the control function. Although this is only a side effect of the proceedings, it is nevertheless of enormous importance for steering the process.
Likewise, the Nebenklage gives the injured party the opportunity to make known and clarify the particularly high burden that can be a consequence of the crime. This should result in a special state recognition of the victim's suffering.
Even though the Nebenklage gives the victim in particular some rights, there is also criticism of it. Every German has the right to a defense in the event of a criminal offense. It does not matter whether one is a perpetrator or only an accused. Insofar as a person is now endowed with his or her own rights in the proceedings within the framework of the Nebenklage, which cannot and does not have to be objective, this could have a bad side taste for the perpetrator. The defendant's defense interest must not be affected in the context of the Nebenklage. In the case of an unjustified conviction, precisely due to possible involvement of the accessory plaintiff, this has an even worse character than an acquittal in the case of a crime that was actually committed.
The perpetrator or accused must not lose his position as a subject throughout the proceedings. This goes hand in hand with the fundamental presumption of innocence until conviction. The court does not assume a real injured party just because he has filed a motion for collateral estoppel. Also in favor of criticism and against the accused are, in case of doubt, a higher cost burden in the event of losing and a possible delay of the entire trial if another person is involved in it. For the above reasons, there is thus a certain risk of abuse of legal institutions.
It is then already an abuse, if an application for accessory action is made, but a violation was not committed at all, only to possibly free himself from a suspicion of a crime, if the alleged victim himself is not at all as innocent as he would like to show through the accessory action.
In addition to the normal indictment by the public prosecutor's office and a subsequent collateral action, this is also possible in safeguard proceedings. Security proceedings are a special type of proceedings within criminal law. The safeguarding procedure itself serves the purpose of moderation for the betterment and safeguarding of the offender. It is used and carried out instead of the normal indictment. A prerequisite for the safeguarding procedure is, among other things, the inability of the accused to stand trial. Instead of a conviction, the accused is then placed in a psychiatric hospital or a reformatory. The reason for this is the inability to plead guilty in accordance with Section 20 of the Criminal Code.
Incapacity due to mental disorders
A person is without guilt if, at the time of the commission of the act, he or she is incapable of recognizing the wrongfulness of the act or of acting in accordance with this recognition due to a pathological disorder, a profound disturbance of consciousness, a reduction in intelligence or another serious mental disorder.
If a main hearing has already been opened in the case, no further safeguarding proceedings can be ordered subsequently if incapacity is established in the course of the proceedings. There is no relevant legal basis for this. If this were the case, the offender could not be sentenced, even if the requirements for preventive detention were then met. Even in the case of preventive detention proceedings, it is permissible for the injured party to participate in the proceedings in the context of an accessory action and thus to join in.
Until 2006, the Juvenile Courts Act did not provide for the possibility of an accessory prosecution. Since the 2nd Judicial Modernization Act, however, this has nevertheless been possible in certain constellations. The legal basis for this is Section 80 of the Juvenile Courts Act (JGG).
[...] Only those who have been injured may join the public action brought as joint plaintiffs.
As described in more detail above, the proceedings of the Nebenklage are only possible under certain conditions. In the criminal offenses set forth in Section 80 of the JGG, the legislature considered the victim's interest more worthy than the educational effect without a joint plaintiff. An attempt to the mentioned criminal offenses is here sufficient to make an application. Again, a distinction must be made as to whether the defendant is an adolescent or still a juvenile. Juvenile is one from 14 to 17 years and adolescent from 18 to 21 years. While juvenile criminal law always applies to juveniles, adolescents are subject to juvenile criminal law or, at their discretion, adult criminal law.
In the case of adolescents, the Nebenklage is no longer bound by Section 80 of the JGG. In the case of those, the Nebenklage is to be subsumed only according to § 395 et seq. of the Code of Criminal Procedure.
The general procedural requirements must also be met for the joint action. To this end, the plaintiff or his representative must have the capacity to bring legal proceedings. If this is not the case, the consent of the legal representative is required. Even if the joint plaintiff could conceivably be involved in the proceedings in a different way, this does not preclude a joint action. For example, the joint plaintiff could also be summoned as a witness. He can therefore also be heard as a witness. A co-defendant in the trial can also be a joint plaintiff. His role as an injured party, however, must relate to another act for which he has been charged.
The goal of the Nebenklage is always to convict the defendant. Therefore, should it be the case, and this is quite conceivable, that a person wishes to stand as a joint plaintiff in order to help the defendant achieve acquittal, then this would be considered inadmissible. As mentioned above, paragraph 1 of Section 395 of the Code of Criminal Procedure conclusively regulates the criminal offenses for which a Nebenklage is conceivable. For the Nebenklage to be admissible, there must at least be the legal possibility that the offender can be convicted under this standard.
It is not necessary to prove directly that the defendant also committed the crime - this is referred to as probable cause. It is also irrelevant whether the public prosecutor bases his indictment on a standard that entitles the accessory prosecution. It is also irrelevant whether the defendant culpably committed the offense, only attempted it or even completed it. Nor does it matter whether the defendant was the principal perpetrator or merely a participant.
If the defendant is accused of several acts and only one of them entitles the defendant to file an application for ancillary relief, this is sufficient. Thus, it is also irrelevant whether the offenses were committed in unity or in competition with each other. It should be noted, however, that if the offense in question is an absolute offense for which an application has been filed, the plaintiff must also have filed the criminal application beforehand.
All criminal offenses referred to in Section 395 of the Code of Criminal Procedure are those that relate to the most personal legal interests of an injured person.
No. 1: regulates the legal right of sexual self-determination
→ The infringer here is merely the holder of the right to sexual self-determination.
No. 2: regulates life
→ Injured person is the one who has experienced an attempted murder or manslaughter.
No. 3: regulates physical integrity
→ Injured persons are those who had to experience suspension and those who had to suffer crimes against physical integrity (intentional).
No. 4: regulates the personal freedom of the victim
→ The basic offense of deprivation of liberty, as well as coercion in a not particularly serious case and threat are not accessory offenses.
No. 5: refers to § 4 of the GewSchG, which also presupposes an encroachment on highly personal legal interests (Violence Protection Act).
No. 6: regulates the protection of intellectual property in the aforementioned criminal provisions.
→ The infringer is the holder of the impaired right, not the insolvency administrator. Various standards must be taken into account here. Standards of the Trademark Act, the Design Act and the Copyright Act remain exemplary.
Normally, it is only incumbent on the injured person to file an accessory action. However, this can no longer be done if the injured person has been killed. Under certain conditions, it is therefore possible for the relatives to participate in the context of a Nebenklage. Logically, the deceased can no longer participate and defend himself. Accordingly, the special need for protection of the relatives applies to this. These include the children, parents, siblings (including half-siblings), spouses or the life partner of the victim. It should be noted here that this list is exhaustive and that no other relatives may bring an accessory action. Grandparents or grandchildren of the victim are not entitled to file an action. Likewise, uncles, aunts or even fiancées are not entitled to file a lawsuit.
The power to bring an ancillary action is not in competition with each other. Thus, there is no preferential treatment of one joint plaintiff over another. Several accessory plaintiffs may therefore also declare their action in a concurrent manner. Likewise, it is also irrelevant here whether the proceedings are a public prosecution or whether the proceedings are conducted as protective proceedings.
Paragraph 3 of Section 395 of the Code of Criminal Procedure is a so-called catch-all provision. It extends the right to bring an accessory action to other criminal offenses. However, this is only possible under certain conditions. In the third paragraph, further criminal offenses are again mentioned, but here the facts of the case are intentionally left open in their entirety. This is because the victim is in need of protection. An offense may be particularly serious in an individual case and then, as a result, the court may respond to the victim and also allow an accessory action, even if the offense may not have been recorded beforehand. In individual cases, it remains the case that there are no criteria that limit the right to bring an accessory action.
In this regard, it was feared that this would result in an increased workload for the courts if there were no longer any restrictions on ancillary relief. However, this fear can be quickly dispelled if one takes a closer look at the figures on the frequency of the Nebenklage (see above).
Even though paragraph 3 of Section 395 of the Code of Criminal Procedure extends the possibility to any criminal offense, it nevertheless lists some criminal offenses for which the joint plaintiff is entitled to file a lawsuit. Among other things, it mentions theft and robbery offenses and the predatory attack on motorists.
In conclusion, the Nebenklage is an exciting field in its full consideration and offers the victim as a Nebenkläger a wealth of possibilities as to how he or she can have an impact on it. We, the Baumfalk Law Firm, are happy to be your direct and competent contact when it comes to your Nebenklage and will fully examine whether this option is open to you and how to proceed.
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Mr. Patrick Baumfalk, attorney at law
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Mr. Patrick Baumfalk, attorney at law
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