Settlement, conciliation authority in private prosecution matters
The term settlement as well as the conciliation authority in private prosecution matters occupy a special position in the German legal system. They refer to both out-of-court and judicial means of dispute resolution, primarily within the scope of private prosecutions. Private prosecution proceedings and the instrument of settlement serve both to relieve the courts and to enable an amicable resolution of legal relationships between the parties. This article comprehensively examines settlements and the role of the conciliation authority in private prosecution matters from doctrinal, procedural, and functional perspectives.
Definition and significance of the settlement
General overview of the settlement
Ein settlement is a contractual agreement between parties to resolve a dispute or legal uncertainty by mutual concession. In German law, the settlement is governed by § 779 BGB (German Civil Code). A settlement occurs when the parties, by mutual concession, resolve a dispute by contract or clarify an uncertain legal situation.
Typically, each party moves away from its original legal position in order to achieve a secure and final condition in return. The settlement can be concluded both out of court and within the framework of court proceedings.
Legal effects of the settlement
The conclusion of a settlement means that the dispute in question is resolved. Upon entering into the settlement, the interest in litigation ceases, and any related action is generally declared resolved or dismissed. The settlement is legally binding and usually precludes further litigation on the same subject matter (so-called binding effect of the agreement). A settlement is also enforceable, provided it was concluded before a body authorized to enforce or if the title has been designed accordingly.
Private prosecution and duties of the conciliation authority
Concept of private prosecution and distinction
Die Private prosecution is a special method of criminal prosecution in which it is not the investigative authorities but the injured private individual who may prosecute certain offenses (§§ 374 ff. StPO). Typical private prosecution offenses include insult (§ 185 StGB), unlawful entry (§ 123 StGB), and bodily injury (§ 223 StGB), provided there is no public interest in prosecution by the public prosecutor’s office.
Necessity of initiating proceedings
Before a private prosecution may be raised, a conciliation attempt is required in accordance with § 380 (1) StPO. This is meant to enable the parties to seek an amicable solution and to relieve the courts of minor cases. The primary role in this procedure is assumed by the conciliation authority zu.
The conciliation authority in private prosecution matters
Legal basis and function
The conciliation authority is provided for by law in §§ 380 ff. StPO. Its main function is to undertake an attempt at conciliation in certain criminal disputes (particularly in private prosecution offenses). Key legal provisions:
- § 380 StPO: Before filing a private prosecution, a conciliation attempt must generally be made before a conciliation authority.
- § 382 StPO: Regulates the jurisdiction of the conciliation authority.
Decentralization of private legal disputes and relieving the courts of minor offenses is the decisive principle.
Jurisdiction and composition
Conciliation authorities are usually specially established panels within municipalities. In some federal states, the duties and powers have also been assigned to justices of the peace or arbitrators. The precise composition and local jurisdiction are determined by state law.
The conciliation authority typically consists of a neutral chairperson (e.g., justice of the peace, arbitrator), whose task is to encourage the parties to reach an agreement. The proceedings follow the rules set out in the relevant state alternative dispute resolution laws.
Proceedings before the conciliation authority
The typical process is as follows:
- Application: The injured party applies for a conciliation attempt at the competent conciliation authority.
- Summoning the parties: The parties are summoned to an oral hearing.
- Conciliation discussion: Moderated negotiation in which possibilities for agreement are explored.
- Conclusion of a settlement: If an agreement is reached, a settlement is concluded and recorded by the authority.
- Result: If no agreement is reached, the claimant receives a certificate (“conciliation certificate”), which is required for the admissibility of a subsequent private prosecution.
Legal effect and significance of settlements concluded before the conciliation authority
A settlement concluded before the conciliation authority is binding and is to be treated in civil law like an out-of-court settlement. Such a settlement is often made enforceable, provided the legal basis allows such authority (e.g., §§ 794 (1) no. 1 ZPO).
If no agreement is reached, the hearing still serves procedural efficiency by clarifying issues on a case-by-case basis and focusing the subsequent criminal proceedings on the essentials.
Distinction from other conciliation procedures
Conciliation authorities in contrast to other bodies
Conciliation authorities must be distinguished in law from other conciliation entities. They are specifically designed to resolve private prosecution matters outside the courts and refer to a clearly defined list of offenses. Other mechanisms such as mediation, conciliation bodies or arbitral tribunals in civil law generally cover broader or different areas of law.
Practical significance
Procedural economic function
The conduct of a conciliation attempt before the conciliation authority is mandatory for bringing most private prosecution matters under German criminal procedure law. Only in exceptional cases (such as unsuccessful attempts, non-appearance of the respondent, or after a conviction in criminal proceedings) can this be omitted. Statistically, this process leads to settlement of pre-litigation disputes in a large number of cases, thereby relieving the criminal courts.
Legal consequences of omitting a conciliation attempt
If, despite a legal obligation, no attempt is made before the conciliation authority, the private prosecution is inadmissible. This is examined ex officio by the court at every stage of the proceedings.
Literature and further regulations
- German Civil Code (BGB), especially § 779 BGB
- Code of Criminal Procedure (StPO), §§ 374-394b StPO
- Code of Civil Procedure (ZPO), § 794 (1) no. 1 ZPO
- State laws on arbitration offices and conciliation bodies
Summary
The settlement is a central instrument for the amicable resolution of disputes and significantly contributes to procedural efficiency. In the field of private prosecution matters, the conciliation authority represents an independent, legally binding conciliation body that is intended to encourage the parties to reach an agreement before initiating court proceedings. Its activities are subject to clear legal regulations and represent an essential element for avoiding criminal proceedings in cases of minor and honor-related offenses. Its practical importance in the German legal system is evident especially in shifting disputes from the courts to out-of-court conciliation bodies.
Frequently asked questions
What are the duties of the conciliation authority in private prosecution matters?
The conciliation authority assumes a central role in private prosecution matters, as it serves as the primary contact before the initiation of formal criminal proceedings. Its main task is to achieve an out-of-court settlement between the private prosecutor and the accused. According to § 380 StPO, private prosecution offenses—i.e., crimes in which prosecution is generally left to the immediate victim—must mandatorily be brought before the conciliation authority before a formal complaint is filed. This is intended to attempt reconciliation in order to reach agreement without court involvement, if possible. The conciliation authority organizes an appointment, summons the parties, and ensures orderly conduct of the settlement attempt. If a settlement is reached, the private prosecution proceedings can often end here. The authority documents the outcome (settlement or failure of the attempt) and, in the latter case, provides the necessary certificate required for further court proceedings.
Which conciliation authority has jurisdiction?
Jurisdiction for the conciliation authority is legally regulated. As a rule, it is the local court (Amtsgericht) in whose district the accused resides or has their usual place of residence (§ 380 para. 1 sentence 2 StPO). In some federal states, municipal arbitrators, arbitration offices, or special conciliation bodies may also be responsible, depending on state law. It is important to observe the particularities of state legislation, as arbitration and conciliation are not uniformly regulated across Germany. The local and subject-matter jurisdiction also depends on the opponent’s residence/ordinary place of residence at the time the application is made.
Which offenses must be preceded by conciliation proceedings?
Not every criminal offense is suitable for private prosecution. The relevant offenses are mainly less serious crimes, such as insult (§ 185 StGB), unlawful entry (§ 123 StGB), bodily injury (§ 223 StGB), damage to property (§ 303 StGB), or violation of the secrecy of letters (§ 202 StGB). In these cases, the injured party is entitled to conduct the prosecution as a private prosecutor, provided the public prosecutor’s office refrains from filing public charges. Before filing a private prosecution, it is mandatory to furnish proof of an unsuccessful attempt at reconciliation before the conciliation authority (§ 380 StPO). In particularly serious cases, if there is special public interest, or if the offense carries a higher penalty, prosecution generally remains the responsibility of the public prosecutor’s office.
What are the legal consequences of a successful settlement before the conciliation authority?
If the parties reach an agreement before the conciliation authority, the legal dispute is generally settled. The settlement may include material (e.g., compensation payment, declaration to cease and desist) as well as immaterial provisions. Often, withdrawal of the criminal complaint or action is also agreed upon in the settlement. A settlement concluded before the conciliation authority is fundamentally binding for both parties. If the agreed settlement is not abided by, the injured party can, if necessary, pursue judicial enforcement of claims (e.g., payment) in civil proceedings. The competent authority records the settlement in the file and issues a certificate thereof. If a case proceeds, the public prosecutor’s office and court are informed of the settlement. By way of an effective settlement, private prosecution proceedings before the court are typically rendered unnecessary.
What happens if the attempt to reach agreement before the conciliation authority fails?
If the attempt at agreement before the conciliation authority fails, the private prosecutor receives a certificate documenting the failure of the conciliation attempt (§ 380 para. 1 sentence 3 StPO). This certificate is a mandatory prerequisite for bringing a private prosecution before the local court. Without this proof, the private prosecution would be dismissed as inadmissible. The certificate documents that the required out-of-court resolution was actually attempted, but no agreement was possible. Once this certificate is received, the private prosecutor may formally bring the private prosecution before the court, which then initiates ordinary proceedings.
Is legal representation required in proceedings before the conciliation authority?
Legal representation by an attorney is generally not required in proceedings before the conciliation authority. The parties may act on their own and are not obliged to be represented by a lawyer. However, it may be in the parties’ interest to seek legal advice in advance, particularly if the matter is legally or factually complex. In the case of minors, persons under guardianship, or those lacking legal capacity, a legal representative may be required. The presence of a lawyer is voluntary and not prescribed; nonetheless, it may improve the prospects of success and help ensure a legally sound agreement.
What costs are incurred in conciliation proceedings before the conciliation authority?
Conciliation proceedings before the conciliation authority are generally less expensive than subsequent court proceedings. The costs are determined by the respective state regulations and may vary. For example, a flat fee often applies in arbitration proceedings, typically in the lower double-digit range. If a settlement is reached, additional fees for issuing and certifying the agreement may be charged. In the event of an unsuccessful attempt at settlement, the applicant generally only bears the costs of the conciliation proceedings themselves. Additional expenses (e.g., for service of documents) and, if a lawyer is retained, attorney’s fees according to the Lawyers’ Compensation Act (RVG) may be incurred. In private prosecution matters, the public purse generally does not cover costs.
