Claiming damages from the offender - Germany
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How can I claim damages or other means of redress/satisfaction against an offender in a trial (criminal proceedings), and who should I address this claim to?
Only a so-called application for adhesion, specifying the subject matter and grounds of the application, is a prerequisite for the claim (see details in question 3). The claim can be addressed to the police, the public prosecutor’s office or the competent court (see question 2).
At which point in the criminal proceedings should I raise my claim?
The claim can be presented in writing when the crime is reported to the police. It can also be submitted later in writing to the public prosecutor’s office or the court, or recorded by the clerk of the court (at the Rechtsantragsstelle (a department in German courts to which claims and other declarations can be submitted)). An oral application may also be made at the main hearing.
As a general rule, it is advisable to submit the application as early as possible, not least in order to avoid any abandonment of a decision due to significant delays in the procedure.
What can I ask for in the claim and how should I present it (indicate a total amount and/or specify the individual losses, lost profits and interest)?
The application should clearly set out what you demand from the accused and why. As a rule, if you require an amount of money to compensate for financial loss (e.g. loss of earnings, damaged property), you should quantify this precisely. The amount of compensation for pain and suffering (Schmerzengeld), on the other hand, can be left to the discretion of the court. Even then, however, at least an approximate order of magnitude should be given and the basis for calculating or estimating the pain benefit should be set out. You must present the facts to justify your claim in as much detail as possible (e.g. description of the offence, information on the injuries and damage to property incurred).
Is there a specific form for such claims?
Yes. No special form is foreseen.
An example of an application in adhesion proceedings can be found in the victim’s label issued by the Federal Ministry of Justice and Consumer Protection on p. 59 (example 5). The victims’ fibel on the rights of injured and injured parties in criminal proceedings can be found at https://www.hilfe-info.de/ under the section “Publications” here:
What evidence do I need to present to support my claim?
You should indicate or attach to your application any available evidence relevant to proving and claiming your claim (e.g. invoices, certificates). You can also refer explicitly to the reports and witness statements you gave to the police or to the indictment itself.
Are there court fees or other costs linked to my claim?
If you as the claimant are granted the requested compensation, you will not be charged any court fees; any expenses you have had to incur, e.g. loss of earnings due to participation in court proceedings, are borne by the defendant. if your claim is not or only partially granted, or if the court refrains from making a decision, it shall decide, after due consideration, who shall bear the court’s expenses and the participants’ costs (e.g. legal costs).
If your application is not granted or is only partially granted, you withhold your application or if the court decides not to give a ruling, it will decide, in accordance with its duty, who will pay the costs incurred by the court and the parties (e.g. lawyers’ fees).
Can I get legal aid before and/or during the proceedings?
Can I get legal aid before and/or during the proceedings? Can I get it if I am not living in the country where the proceedings take place?
It is not absolutely necessary to hire a lawyer, but it may be recommended in certain cases. For example, if it is a complex case involving several offenders, if there are difficult civil liability issues, or if the court decides that awarded claims (e.g. a sum of money) have to be enforced by means of an execution procedure. If the legal conditions are met (particularly neediness), legal aid can be provided to cover the costs of a lawyer.
When would the criminal court dismiss or refuse to adjudicate on my claim against the offender?
The court will not decide on the compensation claim if the defendant is acquitted or the proceedings are stopped, if the claim is inadmissible or unfounded in the court’s view, or if, as a matter of exception, it is not appropriate to settle the claim as part of criminal proceedings.
Can I appeal against such a decision or seek other means of redress/satisfaction?
A complaint may be filed against the court’s decision to refrain from making a decision on the claim because it deems that the conditions for a decision on the claim have not been met.
If I am awarded damages by the court, how do I ensure the judgment is enforced against the offender and what help can I get to ensure it?
Adhesion judgments and settlements concluded in adhesion proceedings may be enforced in accordance with the general rules on enforcement. Enforcement is carried out on the basis of an enforceable copy of the ruling or of the settlement reached, which are issued by the clerk of the criminal court.
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Last update: 23/11/2020