Concept and Nature of Private Prosecution
Private prosecution is a term from German criminal procedure law and refers to proceedings in which the victim of a specific criminal offence pursues prosecution themselves as the claimant, without public charges being brought by the public prosecutor’s office. Private prosecution thus represents an exception to the otherwise applicable principle of legality, as the prosecution of crimes is essentially the task of the public prosecutor. Private prosecution enables private individuals to bring certain offences before the court when the prosecuting authorities have determined that there is no public interest in prosecution.
Legal Basis
Statutory Provisions
Private prosecution is regulated in Sections 374 to 394 of the Code of Criminal Procedure (StPO). These provisions determine under what conditions and to what extent private prosecution is permissible. The key provisions relate in particular to the admissibility, procedure, and effects of private prosecution.
Scope of Application
Private prosecution is limited to a narrowly defined group of offences. Private prosecution offences primarily include crimes that are considered less serious and typically affect individual interests. The most important types of private prosecution offences include, among others:
- Insult (§ 185 StGB)
- Defamation (§ 187 StGB)
- Malicious Gossip (§ 186 StGB)
- Violation of the Privacy of Correspondence (§ 202 StGB)
- Trespassing (§ 123 StGB)
- Property Damage (§ 303 StGB)
Not all offences are eligible for private prosecution; serious crimes and felonies must always be prosecuted ex officio.
Requirements for Private Prosecution
Conduct of the Public Prosecutor’s Office
A private prosecution procedure is generally only permissible if the public prosecutor has decided not to initiate public charges due to a lack of public interest (§ 376 StPO). The injured party may then act as the claimant within the framework of private prosecution. However, the public prosecutor may take over the proceedings at any time, should it subsequently recognize a public interest in prosecution.
Standing to Sue
The right to bring an action is generally held by the directly injured party, i.e., the person named as the protected legal interest in the statutory text. Under certain conditions, heirs or legal representatives may also file a private prosecution.
Time Limit and Formal Requirements
Private prosecution must generally be brought within six months from learning of the offence and the identity of the offender. The action may only be filed in writing with the locally competent district court or recorded at the court office. It must contain the precise identification of the accused, a presentation of the facts, and the designation of the applicable criminal law provision.
Course of the Private Prosecution Procedure
Conciliation Attempt (Pre-trial Procedure)
Before filing a private prosecution, a conciliation attempt must usually be carried out before a conciliation body, an arbitration board, or a justice of the peace. The conciliation attempt serves the extrajudicial resolution of the conflict and is mandatory in most federal states. Only if this attempt fails may a private prosecution be instituted.
Main Proceedings
The filed private prosecution is treated like a public prosecution. After reviewing its admissibility, the district court opens the main proceedings. The private prosecutor assumes the role of the prosecutor and bears the burden of pleading and proof. The accused is given the opportunity to respond and defend themselves. The court conducts a main hearing and decides by judgment on guilt and penalty.
Rights and Duties of the Private Prosecutor
The private prosecutor has similar procedural rights to the public prosecutor, including the right to file motions, take evidence, and appeal against judgments. In contrast to public prosecution, however, the private prosecutor bears the risk of legal costs if the proceedings do not result in the conviction of the accused.
Withdrawal and Takeover
The private prosecutor may withdraw the private prosecution at any time. The public prosecutor may assume the proceedings at any point if the existence of a public interest in prosecution is established.
Costs and Consequences
Responsibility for Costs
A key feature of private prosecution is the cost burden on the claimant. If the accused is convicted, the accused will generally bear the costs of the proceedings. In the case of acquittal or termination without a conviction, the private prosecutor must cover the costs. Costs include court fees, expenses, and, if applicable, the necessary expenses of the accused.
Collateral Consequences and Finality
Judgments in private prosecution have the same legal force as judgments following public prosecution. The convicted party is subject to the same sanctions as if proceedings had been conducted by the public prosecutor. Regular remedies in criminal proceedings, such as appeal and revision, are available against first-instance judgments.
Distinction from Public and Civil Actions
Private prosecution proceedings must be strictly distinguished from public prosecution (by the public prosecutor) and civil actions (assertion of claims for damages). Private prosecution relates exclusively to the judicial criminal procedure for certain offences initiated by the injured party. Civil law claims (e.g., damages) cannot be asserted through private prosecution, but require a separate civil action.
International Contexts
The private prosecution system is not unique to Germany but exists in different forms in various legal systems. In Austria and Switzerland, for example, there are similar instruments for certain offences. The specific structure can vary, particularly regarding the offences covered and procedural rules.
Significance and Practical Relevance
In practice, private prosecution is particularly important where criminal prosecution by the authorities is deemed unnecessary in individual cases, but the injured party nonetheless seeks criminal sanction. It helps safeguard individual interests in legal protection, even in cases of minor offences, and relieves the courts. However, the relatively low number of actual private prosecution proceedings also highlights the challenges associated with assuming the role of prosecutor and the associated costs.
Literature
- Thomas Fischer: Strafprozessordnung mit GVG und Nebengesetzen, Munich 2023.
- Meyer-Goßner/Schmitt: Strafprozessordnung, Commentary, Munich 2023.
- Löwe/Rosenberg: StPO Commentary, Berlin 2023.
- Karlsruher Kommentar zur StPO, Munich 2022.
Note: This article provides a comprehensive explanation of the term private prosecution under German law and offers a detailed overview for legally interested readers and researchers.
Frequently Asked Questions
Which offences can be prosecuted by private prosecution?
In principle, private prosecution can only be used to pursue certain offences explicitly listed in the Criminal Code and ancillary laws. These mainly include so-called private prosecution offences, i.e., minor offences that typically do not constitute serious attacks on major legal interests. Examples include trespassing (§ 123 StGB), insult (§ 185 StGB), minor bodily harm (§ 223 StGB), property damage (§ 303 StGB), and violation of the privacy of correspondence (§ 202 StGB). By contrast, private prosecution is not possible for more serious offences such as robbery, theft, or aggravated bodily harm. The prosecution of such offences remains the responsibility of the public prosecutor. The exact list of private prosecution offences is set out in § 374 of the Code of Criminal Procedure (StPO).
What requirements must be met to bring a private prosecution?
Bringing a private prosecution requires that the public prosecutor, after examining the case, decides that there is no public interest in prosecution (§ 376 StPO). This means that prosecution is left to the affected party themselves because the offence is considered to be of lesser importance. In most cases, before lodging a private prosecution, a so-called conciliation attempt — i.e., an out-of-court settlement between the parties before a conciliation or arbitration board — is required. The lawsuit must be submitted in writing to the competent district court, and the private prosecutor must demonstrate a specific legal interest and personal concern. In addition, it must be substantiated that the public prosecutor has denied any public interest in prosecuting the offence, or that an express criminal complaint was rejected for lack of public interest.
How does the private prosecution procedure proceed in court?
After the private prosecution is filed, the court first examines the admissibility of the action and, in particular, whether conciliation has taken place. The defendant is then able to respond to the claim. Unlike public criminal proceedings, the private prosecutor—not the public prosecutor—must carry out all essential procedural actions, provide evidence, and summon witnesses and experts. The court decides based on the oral hearing. The public prosecutor may join the proceedings, but usually does not take over, unless public interest in prosecution emerges in the course of the case. The private prosecution procedure is subject to the general rules of criminal procedure, although the court retains discretion as to whether to proceed to oral hearing or to discontinue the case without a main hearing.
What costs and risks are associated with private prosecution?
The private prosecutor basically bears the risk of legal costs, as they are the initiator of the criminal proceedings. This includes not only court and legal fees, but also, as the case may be, the opposing party’s expenses if the claim is unsuccessful or withdrawn. If the accused is ultimately convicted, they generally bear the costs. It is advisable to carefully weigh the costs and benefits before bringing an action, as an unsuccessful private prosecution can result in substantial financial burdens. Legal expenses insurance usually does not cover the costs of private prosecution proceedings.
What legal remedies are available in private prosecution proceedings?
As in general criminal proceedings, appeals can be made against judgments in private prosecution proceedings. The district court’s verdict may be appealed within one week of pronouncement either by way of appeal, or, in cases where only a fine is imposed, by immediate complaint. The appeal leads to a completely new hearing before the regional court. Again, the private prosecutor must take the initiative, file appropriate motions, and identify evidence. Furthermore, under the conditions set out in the Code of Criminal Procedure, revision (appeal on points of law) against the appellate judgment is permitted.
Can private prosecution proceedings be converted into a public prosecution?
Yes, private prosecution proceedings can be converted into public prosecution at any time if the public prosecutor takes over the case. This is especially possible if, in the course of the proceedings, new facts, witnesses, or evidence arise that substantiate public interest in prosecution. The public prosecutor may then join or take over the proceedings and pursue them at their discretion (§ 377 StPO). In this case, the proceedings are continued like ordinary public criminal proceedings, and the private prosecutor becomes a joint plaintiff.
Is legal representation required in private prosecution proceedings?
Legal representation is not strictly required in private prosecution proceedings, but it is strongly recommended. The private prosecutor must act on their own throughout the proceedings, file evidence motions, and present the facts in a substantiated manner. Without sufficient legal knowledge, there are substantial risks, particularly regarding admissibility, enforcement of claims, and bearing of costs. Especially in more complex cases, assistance from a specialist criminal law attorney is advisable. The court may also order that the private prosecutor be legally represented if the facts or legal issues are particularly complex.
