Conciliation authority in private prosecution matters
The conciliation authority in private prosecution matters is a body provided for under German criminal procedural law, the primary task of which is to attempt to reach an amicable settlement between the parties involved in certain criminal proceedings. This institution plays a central role particularly in cases of so-called private prosecution offenses and contributes to alleviating the workload of the regular criminal courts. The following article explains in detail the legal foundations, tasks, composition, and procedure of the conciliation authority in private prosecution matters and examines its practical significance in the German legal system.
Legal foundations
Statutory basis
The legal basis for conciliation authorities can be found in particular in sections 380 et seq. of the German Code of Criminal Procedure (StPO). These provisions regulate the procedure for private prosecution and require an attempt at conciliation before the ordinary courts can be called upon. The term ‘conciliation authority’ serves as an umbrella term for various local or municipal agencies that are appointed to conduct a conciliation procedure.
Private prosecutions and mandatory conciliation attempt
Private prosecution offenses are criminal acts that are not prosecuted ex officio, but the prosecution is generally left to the injured party (§ 374 StPO). Typical examples include insult, unlawful entry, minor bodily harm, or property damage. Before submitting a private prosecution, section 380(1) StPO generally requires an attempt at conciliation before the conciliation authority.
Tasks and powers of the conciliation authority
Conducting the conciliation procedure
The conciliation authority has the duty to mediate between the complainant (applicant) and the accused (respondent) in a conciliation hearing. The goal is to reach a settlement and thus avoid a formal criminal dispute in court. The course of the conciliation process is governed by state law, with the process generally being informal and unbureaucratic.
Documentation of the conciliation attempt
The outcome of the conciliation attempt—whether an agreement was reached or not—is recorded in writing by the conciliation authority. This certificate is a prerequisite for the admissibility of any subsequent private prosecution and must be attached to the statement of claim (§ 380(1) sentence 3 StPO).
Settlement proposals and mediation
Within its remit, the conciliation authority may propose settlements and influence the parties. If a settlement is reached, it is legally binding under civil law and can also be enforced if necessary. If no agreement is achieved, the applicant receives a so-called certificate of failure.
Composition and organization
Organization at state and municipal level
The design of conciliation authorities is governed by state law. The federal states determine which bodies shall act as conciliation authorities. These may include arbitration offices, municipal administrations, local courts, or specialized conciliation boards. Employees of these authorities are obliged to remain neutral and maintain confidentiality in their role.
Qualifications and independence
Persons acting as members of the conciliation authority must have the necessary expertise and personal suitability. These requirements are usually established by state law as well as the statutes of the respective arbitration office. Impartiality and neutrality in handling cases must be ensured.
Course of proceedings before the conciliation authority
Initiation of the conciliation procedure
The procedure is initiated by an application from the person wishing to bring a private prosecution to the conciliation authority. Both parties are summoned to an oral hearing, at which they must appear in person. Legal representation may be permitted in exceptional cases, if provided for by state law.
Obligation to attempt and discuss a settlement
The conciliation authority is required to make a serious effort to reach an agreement. This is done in a structured discussion in which both sides present their views, misunderstandings are clarified, and the possibilities for an amicable settlement are explored.
Outcome and consequences
If the parties reach an agreement, a written settlement is recorded and signed by all participants. This settlement is legally binding under civil law. If the conciliation attempt fails, the applicant receives a certificate confirming the unsuccessful outcome; without this, any subsequent private prosecution would be inadmissible.
Significance and practical relevance
Relief of the criminal courts
The conciliation authority considerably relieves the courts by settling numerous minor matters out of court. In practice, especially in disputes between neighbors, minor insults, or minor property damage, the conciliation process achieves a high rate of settlement.
Access to private prosecution
Without conducting the conciliation procedure before the conciliation authority, access to private prosecution is generally closed. This requirement thus serves as a procedural prerequisite and ensures that judicial resources are only utilized after an unsuccessful attempt at out-of-court settlement.
Cost-effective conflict resolution
The procedure before the conciliation authority is generally inexpensive and straightforward. It allows affected persons a rapid and unbureaucratic solution without having to initiate court proceedings immediately.
Special regulations and exceptions
Cases without mandatory conciliation
In certain cases, the conciliation procedure before the conciliation authority may not be required. This includes, for example, situations in which an amicable settlement is obviously hopeless, such as when the respondent is abroad or in cases of particularly serious offenses (§ 380(2) StPO).
State law particularities
The concrete organization of the conciliation authority as well as the details of the procedure may vary from one federal state to another. Relevant ordinances on jurisdiction and state laws regulate the details.
Summary
The conciliation authority in private prosecution matters is an important tool for out-of-court conflict resolution in German criminal procedure law. It serves as a conciliation body for private prosecution offenses and ensures that an attempt at settlement is made before any court proceedings take place. This procedure conserves judicial resources, enables the parties to reach an inexpensive and prompt settlement, and has proven itself as an effective means of dispute resolution in minor offenses. The organization, jurisdiction, and operation of the conciliation authority are specified by state law provisions and ensure that a functioning out-of-court preliminary instance exists in the private prosecution process.
Frequently Asked Questions
What are the tasks of the conciliation authority in private prosecution matters?
In private prosecution matters, the conciliation authority’s central task is to achieve an amicable settlement between the private prosecutor and the accused before any court proceedings occur. It formally reviews the attempt to resolve the conflict out of court and documents its efforts, for example through records of mediation proceedings conducted. Only if the attempt at settlement before the conciliation authority has failed or is unreasonable can the private prosecution proceedings be continued in court. In this process, the conciliation authority acts neutrally and in accordance with the law, upholds the interests of both sides, and ensures that legal standards, such as voluntary willingness to settle and the right to be heard, are observed.
In which cases is recourse to the conciliation authority mandatory?
In the so-called private prosecution offenses—which in particular include insult, unlawful entry, petty theft, and property damage of minor value—a conciliation or settlement attempt before the conciliation authority is generally required by section 380 StPO before formal criminal proceedings can commence. This serves to relieve the courts and ideally resolves trivial disputes before reaching the courtroom. However, exceptions exist, such as when the whereabouts of the accused are unknown, the authority is excluded due to the specific nature of the offense, or a settlement appears hopeless. In such cases, the public prosecutor or the court may exceptionally intervene in the private prosecution process.
How does the procedure before the conciliation authority proceed?
The procedure begins with a written or oral application by the injured party—the prospective private prosecutor—requesting a conciliation attempt. The conciliation authority then invites both parties to a hearing. The proceedings are informal and usually conducted orally; obligations to attend and time limits are determined by state law. During the hearing, the authority endeavors to reach a settlement through mediation or proposals. If a settlement is reached, it is recorded and becomes legally binding. Otherwise, the authority certifies that the conciliation attempt has failed, which then becomes a prerequisite for the admissibility of private prosecution in court.
Who is responsible as a conciliation authority according to the law?
The jurisdiction of conciliation authorities is governed at the state level. Usually, these are arbitration offices, municipal administrations, or arbitrators as stipulated by the individual implementing laws of the federal states. In larger cities, special arbitration districts exist. Local jurisdiction is typically determined by the residence of the accused or the location of the act. Members of these authorities often serve on an honorary basis and must meet special selection criteria, especially regarding their personal suitability and reliability.
What are the legal effects of a successful or unsuccessful conciliation attempt before the conciliation authority?
If an agreement is reached and duly recorded, the agreement is binding, similar to a court settlement. The private prosecutor is then generally not entitled to pursue the same matter via private prosecution again. Conversely, an unsuccessful conciliation attempt must be evidenced, typically by a certificate from the conciliation authority, in order to initiate a private prosecution in court. If this proof is missing, private prosecution is inadmissible and will be dismissed by the court.
Can costs and fees arise in connection with the conciliation authority?
Yes, minor fees regularly arise for proceedings before the conciliation authority, determined by the arbitration office fee schedules or state regulations. These fees are generally borne by the applicant, unless a different arrangement is made on site or a cost agreement is reached. In the case of a successful settlement, cost arrangements may also be made; fees may be split or imposed on the losing party. For those in financial need, fee waivers can be applied for, provided state law allows for this.
What special provisions apply to the conciliation authority in juvenile criminal law or in special offenses?
In juvenile criminal law, the conciliation authority only applies to a limited extent; in many cases, a restorative justice procedure or mediation as part of educational measures is provided for in place of the formal arbitration process. For certain categories of offenses, for example serious crimes or those involving public interest, the requirement to have recourse to the conciliation authority is entirely waived, since in such cases the public prosecutor must act ex officio. Similarly, in so-called application offenses that affect the public interest, it is not necessary to involve the conciliation authority.
