If the lawyer takes on the interests of the victim of a crime as part of a new mandate, the important institution of joint legal action should be utilized. As is well known, for the admission of a secondary suit in criminal proceedings, it is sufficient that the offender be legally liable to be convicted of a secondary offense, see Section 395 of the German Code of Criminal Procedure. Classic offenses for which a private prosecution is possible are bodily harm, abandonment, kidnapping, serious deprivation of liberty, sexual offenses, murder and manslaughter. Only in the case that the offender is a juvenile is a private prosecution ruled out as inadmissible (Section 80 (3) JGG). If the offense is subject to public prosecution and to private prosecution, the private prosecution is also possible if the indictment does not include the private prosecution. As part of the accessory private prosecution, the injured party can, if necessary, fight for existing claims for damages under civil law, as he is entitled to his own legal remedy, see §§ 400, 401 StPO. If the injured party decides for these reasons to appear as a witness and co-plaintiff in the criminal proceedings against the offender, the question of how the costs for hiring a victim lawyer will be covered immediately arises. If the injured party has legal expenses insurance, the insurer will usually refuse to cover the costs of a victim's lawyer on the grounds that a so-called "active secondary action" is involved, for which no cover is provided under the insurance conditions.
The legislature has determined in § 397 a I StPO that in the case of incidental actions involving crimes against sexual self-determination or attempted murder or manslaughter, assistance must always be provided, even if the incidental plaintiff is not in need of legal aid, and without regard to whether the factual and legal situation is difficult or whether it is possible or reasonable for him to perceive it himself. Pursuant to § 397 a II in conjunction with. Section 406 g III StPO, the injured party in other ancillary offenses has a right to legal aid under the same provisions as in civil disputes if the factual and legal situation is difficult, the injured party cannot sufficiently protect his or her interests himself or herself, or it cannot reasonably be expected of him or her. The granting of legal aid for moderately serious offenses is therefore subject to additional conditions. This article will deal with this in more detail, assuming that the formal financial requirements for granting legal aid under this provision are met, i.e. that the victim cannot afford a Lawyer of their own.
Similar to the mandatory defense in the context of 140 para. 2 StPO, the granting of legal aid for the victim of moderately serious offenses in § 397 a II StPO requires that there must be a difficulty in the factual and legal situation or that the injured party is incapable of independently safeguarding his interests or this is unreasonable for him.
The question of whether the injured party is granted legal aid and the appointment of a victim lawyer is of crucial importance: The injured party often has to bear the legal costs even if the court has ruled that the perpetrator, if convicted, must also bear the costs of the incidental action in accordance with § 465 StPO: e.g. if the perpetrator is without means. Therefore, the only possibility for the injured party with the appropriate financial means is the institution of legal aid for the accessory prosecution.
Thus, only those who are unable to represent themselves, for whom it is unreasonable to expect them to do so, or for whom the factual and legal situation is difficult have a serious chance of having their application for legal aid granted. The commentaries on the Code of Criminal Procedure refer to the provisions of the duty of defense in order to define the indeterminate legal terms at this point. The assignment of a lawyer in accordance with § 397 a (1) StPO is modeled on the provisions for the duty of defense. The situation is, for example, difficult in the case of extensive taking of evidence that is likely to take a long time, or if the taking of evidence is likely to be short, in the case of special problems, such as assessing the credibility of a child. The legal situation is considered difficult if the application of substantive or procedural law depends on the resolution of legal issues that have not been resolved or if the subsumption is likely to cause difficulties for other reasons. A classic case of inability to defend oneself is the representation of foreigners who do not speak German. It is unreasonable to expect the joint plaintiff to join the criminal proceedings as a joint plaintiff without the involvement of a lawyer in the case of sex crimes.
Opinions differ on the question of whether the factual and legal situation is difficult, whether the joint plaintiff is incapable of independently representing his interests, or whether it is reasonable to expect him to appear without a lawyer. In the case of bodily injury offenses, courts regularly decide against granting legal aid, even in view of the tight budgetary situation, arguing that the injured party is able to represent his or her interests independently. The criminal court has little interest in granting legal aid because it is a typical civil law institution and therefore largely unknown to criminal court judges with many years of experience. The regularly found reference to the ability to independently safeguard the interests of the joint plaintiff is not convincing. For example, the layman is usually unaware that if the offender is sentenced to a suspended sentence,probation, the possibility exists, in the context of the plea of the joint plaintiff, to file a motion to pay damages to the victim as a condition of probation, or to request that the necessary expenses of the joint plaintiff be imposed on the convict. It also seems out of the question for a layperson to be able to decide whether to quantify claims for damages as a joint plaintiff in an ad hoc proceeding. The private claimant's own right to ask questions or his right of appeal under § 401 StPO is also likely to be unknown. In the opinion of the undersigned, it is therefore difficult to imagine cases in which a private claimant has the ability to protect his own interests.
For the reasons stated above, the private claimant can only be considered sufficiently capable of representing himself if he is a legally trained lawyer.
Legal aid should only be refused if the injured party is partly to blame, for example if the joint plaintiff provoked the offense by massively insulting the perpetrator.
Strangely enough, legal aid is regularly granted in precisely these cases of self-inflicted victimization. The decision of the court of first instance on the substantive conditions for legal aid for the joint plaintiff is of paramount importance for the simple reason that this decision is unappealable in accordance with § 397 a para. 3 sentence 2 StPO. The injured party or their lawyer therefore has no right of appeal in this regard and must accept the criminal court's decision.
The court dealing with the matter justifies the non-appealability of the decision to grant legal aid on the grounds of procedural economy and the need for a quick clarification of the legal situation with regard to legal aid.
The unjustified refusal of legal aid is at the direct expense of the injured party. This cannot be in the interest of the Witness Protection Act of 30 April 1998. As a result, the injured party will either have to appear at the criminal proceedings without legal assistance or face the risk of being left with the legal fees even if the offender is convicted. This means that the victim has to bear a risk that clearly runs counter to the purpose of the regulation. Although the victim's attorney can reapply for legal aid for his client under his assignment, it is also recommended that the legal counsel again explain in detail the substantive requirements for the granting of legal aid. However, the court dealing with the matter will not, as a rule, withdraw the decision it has already taken. Furthermore, this would undermine the non-appealability of the decision to grant legal aid under § 397 a (3) sentence 2 StPO.
In order to avoid restrictions for the victim that are not intended by law, the courts should interpret the substantive requirements of Section 397a (2) of the Code of Civil Procedure extensively and only deny legal aid if the legal action appears to be frivolous (see the end of Section 114 of the Code of Civil Procedure).
If the grant of legal aid is refused to the joint plaintiff in the court of first instance, it should be reapplied for in an appeal proceeding. Even someone who has been granted legal aid in the court of first instance must take care to reapply for it in a second instance criminal proceeding.
Legal aid is to be granted separately for each instance (Section 406 g (2) sentence 1 in conjunction with Section 119 ZPO).
As part of a legislative amendment, it should be added to the provision of Section 397a of the Code of Criminal Procedure that anyone who is the victim of a moderately serious crime is also entitled to legal aid. After all, in comparable cases there is also a right to the assignment of a public defender, and section 397a (2) of the Code of Criminal Procedure is modeled on this provision. The consequence of this would be that if a prison sentence of approximately one year is expected, there is a right to the assignment of a victim's counsel with the granting of legal aid. In addition, to ensure effective legal protection within the meaning of Article 19 (4) of the Basic Law, section 397a ( 3 sentence 2 StPO be deleted and the injured party in criminal proceedings be given the opportunity to have an obviously false rejection of legal aid by the court of first instance reviewed if necessary.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.