Victim of a Crime in Germany? These are your options:
In case you have been hurt in an accident in Germany which was caused by someone else or if you have been outright assaulted and injured while in Germany, you should immediately think about how to best collect the necessary evidence for a potential legal case later on. In other words: document all the relevant facts, for example by getting the names, addresses and phone numbers of (German) witnesses, by making photographs, by calling the German police in order to have them write an official police report and – if necessary – by having your injuries examined and recorded by a German medical practitioner. All this is not much fun after just having been attacked but it is essential if you wish to win a court case later.
Press criminal Charges and/or file a Civil Lawsuit? Or both?
If your injury was caused by something which also constitutes a criminal offense under German law, you can either merely file a German civil case for financial compensation, or you can simultaneously press criminal charges. In cases of physical violence against you, the choice is quite obvious, you will in most cases want the German police to investigate this in order for the offender to be punished. There are, however, cases where it may even be counter productive to immediately press criminal charges against the defendant in Germany. For example in cases of (potential) medical malpractice by a German doctor. If you think your German physician has negligently hurt you, making this a criminal case may cost you 2-5 years because then the German civil proceedings are usually stayed until the criminal investigation and an eventual criminal trial against the German physician (and the German hospital) have been concluded. Also, German medical malpractice insurers usually refuse any discussions about a settlement as long as criminal investigations are ongoing. Thus, in some cases it may well be the smarter approach not to press criminal charges and “only” sue for tort in a German civil proceeding (more here: Checklist German Tort Claims).
Do you even have a choice?
In severe cases, comparable to felonies in the USA, the German police and disctrict attorney (Staatsanwalt) will of course become active whether you want them to or not. In these so called “Offizialdelikte” as defined in the German Criminal Code (Starfgesetzbuch) the German prosecutors must commence a criminal investigation, regardless of whether the victim officially presses charges or not. Even if the victim expressly does not want a criminal investigation, such Offizialdelikte will still be prosecuted.
Many cases, however, are minor offences, so called “Antragsdelikte”. These criminal offences will only be prosecuted under German law if the victim files a “Strafantrag” (“application” or “criminal complaint” or “request to prosecute”) within a certain deadline. For a list of these German crimes which require an official criminal complaint see here.
How to press criminal charges in practice?
The requirements for making such a request to prosecute is laid out in sections 77 et seqq. German Criminal Code (Strafgesetzbuch). Sometimes, German police hands out explanatory notes to victims of an alleged crime. The content of such explanatory notes in most cases contains this information:
- Certain criminal offences under German law, such as – for instance – defamation (Beleidigung, üble Nachrede), trespassing (Hausfriedensbruch), burglary (Einbruch), certain cases of bodily injury (Körperverletzung), assault and battery, property damage c and others can and will only be prosecuted under German criminal law if the injured person (or their legal counsel) actively press criminal charges within a time limit of three months from the date on which the person entitled to submit a request obtained sufficient knowledge of both the offence and the identity of the offender.
- If you are certain that you definitely don’t want to press criminal proceedings in Germany, for example because the offender is a close relative or because you have already settled with the offender, then you may waive the right to submit a Strafantrag (request for prosecution). This waiver is irrevocable.
- In case you have not yet made up your mind about pressing charges, you may defer this decision but must keep in mind the three-month deadline of s. 77b German Criminal Code.
- Once you have pressed charges, the request to prosecute an offence may be withdrawn at any time until a final criminal sentence has been issued by a German criminal court. So you can make the taking back of the request part of a civil claim settlement with the offender. But be careful with what you threaten the offender because this may backfire in certain situations, see our post: “I will press criminal charges if you don’t pay!“
- Once you have withdrawn the request to prosecute, it can’t be resubmitted. Also note that if you withdraw your application after a criminal court case has already been commenced, you may become responsible to pay the costs of the criminal proceedings up to that point (see s. 480 German Code of Criminal Procedure, Strafprozessordnung, in short StPO). Thus, if you settle with the offender make sure you German legal counsel includes a clause stipulating that the offender shall pay any legal costs, including German criminal court fees and expenses.
- If the victim is a minor, the signature of the parents (or legal guardians) are required to file the request.
- The request for prosecution can be filed with the German court or the German public prosecutor’s office (Staatsanwaltschaft).
The request for prosecution does not directly affect any civil claims you may have under German civil law. However, as mentioned above, civil court cases are sometimes stayed in case a criminal proceeding is pending in parallel. Also, if the offender is cleared of criminal charges due to the in dubio reo principle, this outcome is not binding for the civil court (same as in the USA, see the O.J. Simpson case), but it does not exactly help the claimaint with the civil lawsuit when the defendant can refer to the criminal case and demonstrate that he has been found not guilty there.
Legal Advice by German Injury Lawyers
If you consider pressing criminal charges and/or filing a civil lawsuit in Germany, our English speaking lawyers will be happy to assess the case and explain your options. For legal fees and the required formalities to hire a German legal counsel see: How to engage Graf & Partners
- Bitten by a Dog in Germany?
- Testimony and Evidence in German Litigation
- German Laws relating to Civil Litigation
- Know Your Way around German Civil Courts
- How to retain a German Lawyer
For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.