Private Prosecution

Last Update: 25. Aug 2025

Definition and Significance of the Private Accessory Prosecution

Die Private Accessory Prosecution is a legal institution governed by the Code of Criminal Procedure (StPO) of the Federal Republic of Germany, which enables certain victims of criminal offenses to join public criminal proceedings as independent parties. The aim of the private accessory prosecution is to better safeguard the interests and rights of victims in criminal proceedings and to enable them to actively participate in the process.

The private accessory prosecution is particularly relevant in cases involving offenses against bodily integrity or sexual self-determination, as well as against life or personal liberty. It serves as an important instrument for victim protection in German criminal proceedings.

Requirements for the Private Accessory Prosecution

Admissibility and Scope of Application

According to §§ 395 et seq. StPO, the private accessory prosecution is generally only permissible in certain cases. Participation as a private accessory prosecutor is particularly possible for the following offenses:

Offenses against life (§§ 211, 212 StGB)
Offenses against bodily integrity (§§ 223-227 StGB)
Offenses against sexual self-determination (§§ 174-184j StGB)
Offenses against personal liberty (§§ 232-239a StGB)
Additional offenses explicitly listed in § 395 StPO

A private accessory prosecution is also permissible in cases of intentional bodily injury under § 230 (1) StPO outside of public interest, if an indictment is brought by the public prosecutor’s office.

Persons Entitled to Private Accessory Prosecution

Those primarily entitled to join as private accessory prosecutors are the persons directly injured by the offense. In cases of death or severe injury, close relatives such as spouses, life partners, children, or parents may also be entitled to join (§ 395 (2) StPO).

Form and Deadline

The declaration to participate in the proceedings as a private accessory prosecutor may be made informally and can generally be submitted up to the start of the main trial. The intention to join may be declared in writing or recorded at the court office. In certain cases, it can also be made at a later stage, for example, if new facts come to light.

Rights and Powers of the Private Accessory Prosecutor

Participation in Proceedings and Procedural Status

Upon admission, the private accessory prosecutor assumes an independent role in the criminal proceedings. They are entitled to participate in all stages of the process, including the main trial, and are, in many respects, treated equally to the public prosecutor and the defense. Private accessory prosecutors are permitted, among other things, to:

File motions, especially for evidence, suggest evidence, or challenge experts and judges;
Ask questions of witnesses and experts (right to question);
Lodge legal remedies (appeal, revision, complaint) against judgments, orders, and individual procedural actions, insofar as these decisions affect them;
Apply for access to files as far as this is necessary to safeguard their rights (§ 406e StPO);
Inspect indictments, evidence, and expert opinions.

Victim Rights and Protective Measures

Private accessory prosecutors are also entitled to special protective rights, such as:

Motion to exclude the public (§ 171b GVG)
Request for witness protection measures, such as avoiding direct confrontation with the defendant
Assertion of claims under the Victims Compensation Act

Accessory Prosecution Proceedings and Costs

Admission of the Private Accessory Prosecution

The decision regarding the admission of the private accessory prosecution is made by the competent court. Generally, a simple declaration is sufficient; only in obvious cases of inadmissible or unfounded petitions may the court refuse admission. Once the declaration is effective and statutory requirements are met, the private accessory prosecution becomes part of the proceedings.

Court Costs and Reimbursement of Expenses

The costs of participation as a private accessory prosecutor, including any attorney fees, may be imposed on the defendant upon conviction (§ 472 StPO). If the private accessory prosecutor is financially unable to bear the costs, legal aid may be granted. In such cases, the state treasury covers the necessary expenses incurred by the private accessory prosecutor, including the costs of legal representation.

Special Forms and Distinctions

Distinction from the Adhesion Procedure

The private accessory prosecution is to be distinguished from the adhesion procedure. While the private accessory prosecution involves the participation of the victim in the criminal process, the adhesion procedure serves to enforce civil claims (damages, compensation for pain and suffering) within the criminal proceedings (§§ 403 et seq. StPO). Both instruments may, however, be used in combination.

Termination of Private Accessory Prosecution

The private accessory prosecution may be withdrawn at any time without stating reasons (§ 396(3) StPO). The withdrawal results in the loss of rights for the accessory prosecutor in the further proceedings. A renewed declaration of participation may not be possible under certain circumstances.

Literature

Meyer-Goßner/Schmitt, StPO, Commentary (annually)
Roxin/Schünemann, Criminal Procedure Law
StPO – Code of Criminal Procedure: Text Edition with Explanations

Frequently Asked Questions

Who may participate as a private accessory prosecutor in criminal proceedings?

In German criminal proceedings, participation as a private accessory prosecutor is not open to every victim of a criminal offense. According to § 395 StPO, the right to join is reserved especially for persons who were directly affected by specific, particularly serious offenses. These include, for example, victims of sexual offenses, offenses involving bodily injury, attempted homicide, deprivation of liberty, human trafficking, stalking, or certain acts against life, bodily integrity, or sexual self-determination. Surviving dependents of a person killed by such an offense may also become private accessory prosecutors. To participate, affected parties must file a separate application to the court. The private accessory prosecution is thus not a general form of participation; it depends on the type and severity of the offense and the immediacy of the person’s own involvement.

What rights does a private accessory prosecutor have in criminal proceedings?

By joining, the private accessory prosecutor acquires an independent status in the proceedings, alongside the public prosecutor, the court, and the defendant. They are entitled to file motions (e.g., for the taking of evidence), to question witnesses and experts, as well as to file legal remedies, especially appeals and revisions. This sets their role apart from that of a mere witness or injured party, who does not possess procedural rights. The private accessory prosecution allows affected individuals to help shape the proceedings, for example, by challenging judges or through representation by a lawyer. The private accessory prosecutor is also entitled to inspect files if the rights of the accused do not outweigh them or if there are no special interests in confidentiality.

How is the private accessory prosecutor represented in the proceedings?

A private accessory prosecutor can in principle represent themselves; however, legal representation by an attorney is common practice and is strongly recommended in most cases. In particularly serious cases, there is even a statutory right to have what is known as a victim’s counsel (private accessory counsel) appointed at the state’s expense (§ 397a StPO). The lawyer takes over representation of the private accessory prosecutor’s interests throughout the proceedings, files motions, inspects files, delivers closing speeches, files appeals, and offers advice. The costs for legal representation can be borne by the state for the private accessory prosecutor under certain conditions and if legal requirements are met.

When must the application for private accessory prosecution be filed?

The application to join as a private accessory prosecutor may be filed at any point in the proceedings—that is, during the investigation phase as well as during the main trial. However, it is advisable to declare the intention to join as early as possible, to ensure full access to all private accessory prosecution rights from the start. The court decides on admission. Late admission is possible at any time but means that procedural steps that have already been carried out need not be repeated. This may be disadvantageous, for example concerning late evidence motions or participation in hearings that have already taken place.

What costs are incurred through the private accessory prosecution?

By joining as a private accessory prosecutor, costs for legal representation may generally arise. However, in cases of particularly serious crimes (§ 397a StPO), the law provides that these costs may be borne by the state treasury. Legal aid may also be applied for, if personal and financial requirements are met. In certain cases, for example when the defendant is acquitted, (residual) costs may remain with the private accessory prosecutor, especially for non-refundable expenses. In principle, however, the structure of the private accessory prosecution is intended to ensure that victims can exercise their rights regardless of their financial situation.

What is the role of the private accessory prosecutor in appeals proceedings?

In the event of a judgment, the private accessory prosecutor is often entitled to appeal or seek revision, provided their rights are affected by the judgment. This allows the private accessory prosecutor to request a review of the verdict regarding both findings of guilt and sentencing. Filing an appeal is subject to certain time limits and formal requirements, in particular, these must often be observed with the help of a lawyer. The participation of the private accessory prosecutor in appellate proceedings is an important aspect, as it allows influence over the judicial assessment of the crime.

May the private accessory prosecutor file their own motions for evidence?

Yes, the private accessory prosecutor is entitled to file their own motions for evidence during the main hearing. This is one of the private accessory prosecution’s most central independent rights. The ability to request the presentation of evidence enables the private accessory prosecutor to contribute to a full clarification of the facts from their perspective. Motions for evidence may relate to witness examinations, the procurement of expert opinions, or the submission of documents or other items. The court is required to treat such motions as carefully as those of the prosecution or the defendant; however, the court may reject a motion if it considers it unnecessary for further clarification.

Further term explanations

Yugoslavia Tribunal