Adhesion procedure under German law
The adhesion procedure is a civil law procedure within the context of a criminal trial, which allows a person injured by a criminal offense to assert civil law claims such as compensation for damages or pain and suffering directly within the criminal proceedings against the defendant. This procedure is particularly characterized by its combination of criminal and civil law, as well as its procedural and economic advantages.
Definition and legal classification
The adhesion procedure is governed by Sections 403 to 406c of the German Code of Criminal Procedure (StPO). In this context, ‘to adhere’ means that the civil law procedure is “attached” to the criminal proceedings, so that both procedures—at least in part—can be conducted and decided in parallel. With this instrument, victims of a crime or their legal successors can directly link their civil claims to the criminal proceedings, ideally allowing them to enforce their claims without having to initiate a separate civil lawsuit.
Historical development
The introduction of the adhesion procedure was intended to create procedural and economic benefits and to provide injured persons with easier access to legal remedies. While civil claims previously had to be asserted separately from criminal proceedings, the adhesion procedure was established in German law to avoid multiple burdens from different proceedings and to strengthen the rights of the injured party.
Requirements and fields of application
Eligible claimants and entitlement to file an application
An adhesion procedure can be requested by any natural or legal person who has had their rights directly violated by a criminal offense or their legal successors (§ 403 StPO). This includes both material (e.g., compensation for damages) and immaterial (e.g., compensation for pain and suffering) claims.
Admissibility of the adhesion procedure
The adhesion procedure is admissible if the criminal court has subject-matter and local jurisdiction and if criminal proceedings are being conducted against the accused. Typically, civil law claims for damages, pain and suffering, as well as claims for restitution are handled. However, ongoing maintenance payments, family law disputes, and public law claims are not covered.
Exclusion grounds
Section 403, sentence 2 StPO contains specific grounds for exclusion, such as if the legal dispute is already pending or pending elsewhere, or if a decision from a civil court already exists. Furthermore, the criminal court may reject the adhesion procedure if it considers the procedure to be unsuitable (§ 406 StPO), which may regularly be the case in complex civil law matters.
Course of the adhesion procedure
Application filing
The application can be filed with the initiation of public charges, but no later than the start of closing arguments in the criminal proceedings (§ 404 para. 1 StPO). The application must contain a specified request, i.e., it must state the type and amount of the claim pursued and describe the facts of the case in a way that allows for their examination.
Participation of the parties
The applicant is referred to in the proceedings as the ‘adhesion plaintiff’, the defendant as the ‘adhesion defendant’. Both parties have the opportunity to respond and, if necessary, submit motions for evidence. The injured party may also be represented.
Decision by the criminal court
The criminal court may decide on the civil claim in its judgment (§ 406 StPO). The adhesion application is either granted, rejected, or referred to the civil courts. If the criminal court considers the adhesion application to be not ready for a decision or if a significant additional effort would be required, it may abstain from making a decision and refer the application to the civil court.
Appeals and enforceability
According to § 406a StPO, generally no further legal remedies are available against the decision in the adhesion procedure, insofar as it concerns the civil law claim. An appeal may be lodged against a dismissal. The judgment is enforceable with respect to the adhesion decision, provided it is final.
Advantages and limitations of the adhesion procedure
Advantages
- Procedural economic efficiency: Avoidance of parallel civil proceedings and the associated multiple burdens on the parties.
- Adequate protection for victims: Injured persons receive an enforceable title quickly.
- Concise fact-finding: Binding effect on the findings of fact made by the criminal court.
Limitations
- Complexity of the subject matter: In complex cases and extensive evidence proceedings, the adhesion procedure is often separated.
- Restrictions on legal remedies: Limited legal protection is available for the civil portion of the judgment.
- Strict application principle: An independent civil law examination only takes place upon application and within the framework of the Code of Criminal Procedure.
Practical relevance and areas of application
Typical practical cases
The adhesion procedure is particularly applied in cases of bodily injury, traffic offenses with damaging consequences, and property offenses. Claims for damages, pain and suffering, and restitution are regularly secured within criminal proceedings in this manner.
Procedural design in practice
In practice, the adhesion procedure is primarily applied in clearly established cases with undisputed civil claims. The courts exercise wide discretion with regard to the implementation and decision of the procedure.
Legal foundations
Essential provisions on the adhesion procedure
- Section 403 StPO: Admissibility of the application
- Section 404 StPO: Filing of application and procedure
- Section 405 StPO: Notice to join and participation of additional parties
- Section 406 StPO: Decision and referral to the civil court
- Section 406a StPO: Remedies
- Section 406b StPO: Regulations on costs
- Section 406c StPO: Implementation regulations
Conclusion
The adhesion procedure is an important instrument of German criminal procedural law for the optimized enforcement of civil law claims within the framework of a criminal trial. It offers injured parties a fast and effective way to assert their civil claims and thus avoid duplicate recourse to the courts. However, there are procedural limitations, particularly in complex cases and with regard to the exercise of legal remedies. Precise knowledge of the legal requirements and practice is essential to successfully pursue an adhesion procedure.Further information is provided by commentaries on the relevant provisions of the Code of Criminal Procedure as well as the relevant case law of the higher courts.
Frequently asked questions
How does the adhesion procedure work in criminal proceedings in practice?
The adhesion procedure is a civil law procedure that is integrated into criminal proceedings to enable the injured party to assert civil law claims (especially for damages and compensation for pain and suffering) against the offender directly within the criminal proceedings (§§ 403 ff. StPO). The injured party may file a corresponding application with the indictment, or at the latest by the start of the closing arguments. The court then examines all facts relevant for the civil claim and decides in the criminal judgment not only on the criminal liability but also on the asserted civil claim. The court may grant the application in full, admit it in part, reject it, or refer it to the civil court if deciding on the claim would substantially delay the criminal proceedings. The taking of evidence then also extends to the facts relevant to the civil claim, and special civil procedure evidentiary rules apply.
What claims can be asserted in the adhesion procedure?
In the adhesion procedure only pecuniary claims resulting from the criminal offense in question may be pursued. This includes, in particular, claims for compensation (e.g., repair costs, loss of earnings, medical costs) as well as non-material claims such as damages for pain and suffering pursuant to Section 253 of the German Civil Code (BGB). Other civil claims that are not directly related to the crime (e.g., purely contractual claims without reference to the offense) cannot be asserted. Applications for security and declaratory judgments are permitted if the requirements of § 404 (2) StPO are met. Claims are not admissible if a decision in the criminal proceedings would unreasonably delay the criminal trial (§ 406 (1) sentence 3 StPO). The amount of the claim must be determinable; accordingly, the court regularly requires the claim to be specified in terms of amount.
What is the role of party publicity and compulsory legal representation in the adhesion procedure?
There is generally no mandatory legal representation in the adhesion procedure, but legal representation is recommended due to the procedural complexity and differences from ordinary civil proceedings. The party publicity of the criminal proceedings also applies to the adhesion procedure, so the injured party, as adhesion plaintiff, has all procedural rights and obligations, analogous to a civil case. They are therefore entitled to file motions, offer evidence, file appeals, or waive appeals. Since the 2004 amendment of the StPO, children and adolescents may file applications as joint plaintiffs directly; however, legal representation is advisable in complex cases, especially if the defendant is also represented or the case is heard before a criminal chamber.
What significance does a conviction in the criminal trial have for the adhesion procedure?
A criminal conviction of the defendant has far-reaching significance for the adhesion procedure because the facts established for the conviction (for example, participation in the crime, culpable causation, or amount of damages) are also regularly used in deciding the adhesion application. However, this binding effect does not extend to all civil aspects, as the criteria for criminal liability and for damages can differ. This means: if the defendant is acquitted in the criminal trial, in almost all cases the basis for a successful adhesion application also lapses. If the criminal court reaches a conviction, it is still at the court’s discretion whether to grant the adhesion application or to refuse a decision if the claim is not ready for adjudication.
What legal remedies are available in connection with the adhesion procedure?
The ordinary remedies of criminal procedure are available against a decision on an adhesion application. This includes, in particular, the immediate appeal (§ 406a StPO) and appeal or revision against the judgment if the decision on the adhesion claim is part of the operative part of the judgment. An immediate appeal is admissible if the court has refused to decide on the application or has referred it to civil proceedings. An appeal or revision can be directed both against the main criminal decision and the ancillary civil decision. If the claim is dismissed fully or in part in the criminal trial, it cannot be asserted again in civil proceedings to the extent that the subject matter is identical. The same remedies are available to the defendant.
Can evidence be collected independently from the criminal charge in the adhesion procedure?
In the scope of the adhesion procedure, the court is entitled to take its own evidence with regard to the asserted civil claim, even if this goes beyond the facts necessary for the criminal charge. However, the court is not obliged to carry out a comprehensive examination of the claim in detail if further or particularly complex investigations would be necessary for the decision on the adhesion application, leading to an unreasonable delay of the criminal trial. In such cases, the court may refuse the adhesion application and refer it to ordinary civil proceedings. The burden of proof lies fundamentally with the applicant, i.e., the victim of the crime.
What are the cost risks in an adhesion procedure?
The cost risk in the adhesion procedure is governed by the general rules of §§ 464 ff. StPO in conjunction with §§ 91 ff. ZPO. If the adhesion plaintiff’s application is granted, the offender must bear the costs of the proceedings, including necessary expenses (e.g., the injured party’s legal costs). If the application is rejected or referred to civil proceedings, the applicant generally bears the costs for the dismissed portion. In case of partial success, the costs are divided according to the ratio of success and failure. The advantage for the victim is that there is no additional cost risk for a separate civil lawsuit, provided the application is successful or decided in favor of the victim. However, full cost risk remains in the case of rejection or referral to civil proceedings.
