I. Introduction
The discontinuation of proceedings under the discretionary principle pursuant to Section 153 a of the German Code of Criminal Procedure (StPO) has always been of outstanding importance in practice in the field of traffic criminal law. 1] Particularly in traffic criminal law, offences are usually committed on a massive scale. In this way, over 300,000 proceedings a year are shortened with the consent of all parties involved. According to § 153 a of the German Code of Criminal Procedure (StPO), the public prosecutor, with the consent of the court and the accused, can refrain from bringing public charges in the case of a misdemeanor if certain conditions or instructions are suitable to eliminate the public interest in prosecution and if the severity of the guilt does not preclude it. If the extent of the offender's guilt does not stand out from that of average cases and the offender is not a chronic traffic offender, there is a realistic prospect of the offender's traffic offense being dropped. From a legal point of view, considerable success can be achieved for the defendant, in particular in the form of written statements on the accusation and establishing contact with the public prosecutor's office, especially in the preliminary proceedings. A dismissal is also possible during the main hearing in accordance with paragraph 2 of the provision. The provision of § 153 a StPO is indeed "tailored" to the conflicting interests between the public prosecutor and the accused[2]. The public prosecutor's office can conclude the proceedings relatively quickly and efficiently and with a penalty that is proportionate to the crime, without having to waive a sanction. The defense can avoid a charge/penal order and thus demonstrate success. The courts are relieved by avoiding the need for a potentially costly and time-consuming taking of evidence and the need to issue a judgment. If the criminal charge cannot be completely dismissed, the only chance of avoiding a penalty order or indictment is to have the charge dismissed. Textbooks on sentencing law have already implemented this development and divide the chapter on certain traffic offenses into "sentencing" and "termination under section 153 a of the Code of Criminal Procedure," typically in reverse order.
However, the pursuit of a dismissal of proceedings can have pitfalls: Since the accusation of the realization of a certain offense is also associated with follow-up questions under civil law, civil proceedings with a uniform subject matter often run in parallel or with a time delay alongside the criminal proceedings. In the case of negligent bodily injury, the insurance company often regards a discontinuation under § 153 a StPO as at least an indication of fault. However, in practice, the main application and also problem case of this tense relationship appears to be the unauthorized removal from the scene of an accident. Here, a discontinuation of the criminal proceedings is regularly obtained up to certain amounts of damage.
If, for example, the accusation of unauthorized removal from the scene of an accident according to § 142 StGB is made, the civil court would have to clarify whether the motor vehicle insurance company would be released from its liability to pay benefits in accordance with § § 7 I para. 2 sentence 3, V para. 4 AKB, 6 para. 3 VVG. Even if the criminal proceedings are discontinued, these proceedings can provide extensive file material for the civil proceedings, which is consulted there in case of doubt.
This article is intended to address the advantages and risks that a dismissal of criminal proceedings can have for subsequent proceedings in other branches of the court, in particular the civil courts. In particular, a rude awakening can threaten the civil judge if he concludes that there is a confession or fault on the basis of the consent to the dismissal of the criminal proceedings in accordance with Section 153 a StPO, and concludes that there was a confession or fault and sentences the defendant or his motor vehicle liability insurance to high compensation claims or takes recourse due to the accident. In retrospect, the question may therefore arise as to whether the criminal defense lawyer can be accused of having hastily and rashly won a "Pyrrhic victory" in the criminal proceedings, which may have an adverse effect on the subsequent civil litigation. In this context, the liability risks of a lawyer are also presented. However, the advantages of § 153a of the German Code of Criminal Procedure (StPO) will be discussed first.
II. Effects of a criminal law settlement on civil proceedings
1. The advantages of a dismissal according to § 153 a StPO
In the case of road traffic offenses, the discontinuation of proceedings is doubly advantageous for the defendant: the defendant remains unblemished in criminal terms, not only is there no entry in the Federal Central Criminal Register, but no points are entered in the Central Traffic Register in Flensburg (cf. Since the matter can no longer be prosecuted as a misdemeanor, the matter cannot be referred to the administrative authority for examination of the existence of an administrative offense either.[4] Of course, it cannot be prevented that some public prosecutors' offices record dismissals in accordance with Section 153 a StPO in their internal lists, which may result in them refusing a declaration of consent to the discontinuation in the event of a repeat offense.
A dismissal can often be interesting in view of the high legal fees and costs that may be incurred if convicted. According to § 467 I StPO, the costs of the proceedings are borne by the state. According to paragraph 5, the necessary expenses are not reimbursed, but are usually covered by legal expenses insurance for clients with such insurance. In the case of a conviction for a willful offense, such as unauthorized removal from the scene of an accident, the legal expenses insurance would not have reimbursed the costs. If the court finds that the policyholder knowingly and willingly committed the traffic offense, the insurance coverage is retroactively voided.[6] If the legal fees have been paid in the meantime, the convicted party would be obliged to repay the fees in accordance with § 20 para. 4 p. 1 ARB 75. [7] If there is no legal expenses insurance, the advantage of a settlement is that that the costs of paying an expert, which would otherwise have been incurred if the criminal proceedings to determine whether the elements of the offense had been fulfilled had been continued and would have to be borne by the convicted party in the event of a conviction, are also avoided.
2. Interactions between § 153 a StPO and the settlement of traffic accidents under civil law
In civil cases, there is massive uncertainty in dealing with a decision to discontinue proceedings under § 153 a of the German Code of Criminal Procedure (StPO). Civil courts are constantly dealing with the coincidence of a discontinuation of proceedings under § 153 a StPO and subsequent civil proceedings. Interestingly, an analysis of civil court rulings reveals differing opinions on this matter, which can be roughly divided into the following three groups:
a.) In parts of the case law, a reference to a discontinuation order according to § 153 a StPO is sufficient as evidence for the above-mentioned main problem of hit and run driving. For example, the Munich District Court[8] no longer considered it necessary to take evidence in the civil proceedings and relied solely on the public prosecutor's order to dismiss the case. This could be used as evidence without the consent of a party being required. For the district court, it was self-evident that "... a dismissal under § 153 a StPO for unauthorized removal from the scene of the accident (presupposes) that the elements of the offense have been fully met. ...". Therefore, the plaintiff can no longer claim that his causation of the damage is in doubt and that he did not even notice the accident. The court no longer considered an expert opinion on the noticeability of the collision to be necessary. The "plea" that he did not notice an accident was not plausible. The Higher Regional Court of Cologne, for example, ruled similarly: 9] Here, too, the issue was whether the defendant motor vehicle insurance company was released from its obligation to provide insurance in accordance with § 7 I para. 2 sentence 3, V para. 4 AKB, 6 para. 3 VVG due to the plaintiff's intentional violation of the duty of disclosure based on the unlawful removal from the scene of the accident in accordance with § 142 StGB. Section 7 I (2) sentence 3, V (4) AKB, 6 (3) VVG. In the opinion of the Higher Regional Court of Cologne, the payment of the fine for the discontinuance of the criminal proceedings pursuant to § 153 a StPO "indicates that the plaintiff himself did not assume that he had behaved correctly."[10]
b.) The Higher Regional Court of Hamm also found fault here, but only a slight one, in a discontinuance under § 153 a StPO. Ultimately, it came to an almost opposite conclusion, in that it ultimately ruled in favor of the former defendant in the provisional termination of the criminal proceedings on the basis of § 142 StGB. [11] The Higher Regional Court had to decide on the question of the merits of a recourse claim by a motor vehicle liability insurance company. Although a violation of § 142 StGB is a violation of the duty to investigate in accordance with § 7 I para. 2 p. 3, V para. 4 AKB, 6 para. 3 VVG, this is not sufficient to release the insurer from its liability to pay. According to the "relevance jurisprudence", the judiciary must examine whether the removal from the scene of the accident is not just a slight fault. [12] The latteris to be assumed here, says the OLG Hamm: "After all, the juvenile court judge, after forming a personal impression of the defendant, took this into account and, despite the considerable third-party damage, provisionally discontinued the proceedings in accordance with Section 153 a of the German Code of Criminal Procedure against payment of a fine."[13]
c.) According to the third view in case law, the question of whether a breach of obligation has been committed against the vehicle insurance must be examined on the basis of evidence, since this question "ultimately remained undecided by the order of discontinuance under § 153 a StPO in the initiated criminal proceedings"[14]. The District Court of Diez[15], for example, only recently conducted its own extensive taking of evidence in a civil dispute despite the discontinuation of criminal proceedings for unauthorized removal from the scene of an accident in accordance with Section 153a of the German Code of Criminal Procedure. Ultimately, the insurer was only released from its liability because of a violation of § 7 I AKB, since the taking of evidence – independently of the criminal decision – was able to prove the cause of the accident.
d.) Due to the widely varying case law, the question arises as to whether the lawyer should advise his client against discontinuing the traffic offense on grounds of opportunity and to take the risky path of criminal proceedings with the defendant, just to preserve the chances of a better outcome in the civil proceedings or, in particular, to avoid recourse. If that were the case, the defense attorney would have to exercise the utmost caution in the future with regard to working towards a dismissal pursuant to Section 153 a of the German Code of Criminal Procedure.
However, in the opinion of the authors, this cannot be the case. The dismissal of criminal proceedings is of great value to the accused, not least because the presumption of innocence under Article 6(2) ECHR[16] continues to apply. Under no circumstances may a court assume that the facts have been proven without further examination by referring to the dismissal of proceedings pursuant to §153 a StPO. The first view presented above must therefore be rejected, as must the second. The civil court must form its own conviction of the facts of the case. The Federal Constitutional Court has ruled with regard to a criminal court decision that a further clarification of the facts of the case cannot be dismissed on the grounds that the convicted party has admitted his guilt by agreeing to the discontinuation of the criminal proceedings pursuant to § 153 a StPO. In doing so, the Regional Court failed to recognize the essence of the discontinuation of criminal proceedings pursuant to Section 153 a of the German Code of Criminal Procedure (StPO).[17]
As is well known, even a civil judge's obligation to comply with criminal court judgments is not compatible with the free consideration of evidence that dominates civil procedure law. The civil judge must in principle form his or her own conviction and is generally not bound by individual factual findings of a criminal judgment.[19] Legislative proposals that sought to achieve a binding effect of criminal law findings for civil proceedings in order to accelerate the process have not yet been implemented. The draft of a § 415a ZPO-JuMoG should give final criminal judgments full probative value with regard to the facts proven there for the civil proceedings.
The lack of binding effect must apply a fortiori to dismissals of proceedings based on discretionary principles. If even the legally binding determination of the defendant's guilt in criminal proceedings is not sufficient to require the civil judge to assume the fact that is disadvantageous for the convicted party, then this must also apply to discontinuations based on discretionary principles. The discontinuation of criminal proceedings under section 153a of the Code of Criminal Procedure is not a criminal conviction.
3. Applicability and requirements of the provision of § 153a StPO
The differing ways in which civil judges deal with the discontinuation of proceedings under § 153 a StPO can only be explained by the fact that the requirements of § 153 a StPO are highly controversial in legal literature and case law. Therefore, to understand the matter, it is first necessary to examine the scope of application of this provision from a doctrinal perspective:
a.) This initially requires that certain conditions or instructions are suitable for eliminating the public interest in criminal prosecution. The fact that this requirement is often handled extremely laxly in practice has been heavily criticized in connection with the dismissal of criminal proceedings against Dr. Helmut Kohl has been heavily criticized;[22] in some cases, the abolition of § 153 a StPO was even demanded in this context. [23] After the at least dubious termination of the Ackermann trial - which received a great deal of public attention - the right of the norm to exist has been called into question again.[24] In the press, there was some talk of "the judiciary surrendering to big money" and "buying freedom".[25] Here, too, there was fierce criticism of the fact that requirements and instructions were undoubtedly unable to eliminate the public interest in criminal prosecution.[26] At least the examples illustrate – according to what is certainly the broad opinion of the population – the failed application of the provision that a considerable margin of discretion is opened up, because the public interest is difficult to measure.
b.) Furthermore, the requirements for suspicion are controversial.
The argument that the decision to press charges cannot be withheld if there is absolutely no criminal relevance is generally used to demand that the principle of legality can only be overridden if the accused is at least suspected of the offense according to the results of the investigation.[28] In any case, sufficient suspicion is a prerequisite for the application of the norm.[29] With reference to the materials, it is argued that section 153 a of the StPO cannot be applied without a corresponding result of the investigation.[30] This can be explained by the fact that otherwise the amount of the condition, which is based on the degree of guilt, cannot be quantified.
In some cases, a certain degree of guilt is required for the proceedings to be settled. This is justified by the wording of the provision, which requires that the severity of the guilt must not stand in the way of the procedure under Section 153a of the Code of Criminal Procedure. In any case, the dismissal is not based on certainty of guilt.[32] The stigma of a culpable violation of the law is to be avoided here.[33] Therefore, the criminal proceedings are not terminated with a corresponding proof of the guilt of the accused, but only a procedural obstacle has been created.
According to a somewhat broader view, even incomplete findings regarding the underlying facts are sufficient. However, it should be required that the effort of further fact-finding be disproportionate to any punishment.[35] This view has emerged as the prevailing one in practice. Critics [36] of this view point out that it could lead to an "economization of the criminal proceedings". In fact, the term "unfinished investigation" is flexible. For example, can an unlawful removal from the scene of an accident be stopped without an expert opinion being obtained that comments on the acoustic, visual and tactile perceptibility of the accident by the accused if the latter denies having perceived the accident? Is it sufficient in some circumstances that the investigating officers are convinced – despite possible prior damage to the vehicle upon inspection of the vehicles from the corresponding origin of the damage?
One view that demands an admission of guilt from the defendant for a settlement according to § 153 a StPO goes too far.[37] The defendant cannot be expected to incriminate himself. This opinion is based on a misinterpretation of the necessary consent of the accused to the dismissal according to § 153 a StPO. Furthermore, an obligation to confess in order to benefit from a dismissal would be questionable with regard to the "nemo tenetur principle". In this respect, the Regional Court of Bonn is to be agreed, which had stated that a discontinuance does not mean an "admission of guilt ".
4. The defense attorney's legal liability
From a legal point of view, there may be a liability risk for the defense attorney if proceedings are discontinued under § 153 a StPO.[39] However, based on the above, this cannot be seen as the civil court evaluating the consent of the defendant within the scope of § 153 a StPO as a finding or admission of guilt and deciding in favor of the civil claim at the expense of the client. This is not a mistake on the part of the lawyer. Nevertheless, the defense attorney should protect himself by providing his client with comprehensive advice and information. This should also include a reference to the continuing presumption of innocence and the frequent violation of this presumption in practice (see 3.). In this context, there should also be a note that the client may be threatened with a civil lawsuit under certain circumstances.
Is the defense counsel now allowed to initiate proceedings even if the evidence is uncertain, or to accept this offer from the public prosecutor's office for purely procedural reasons? This depends primarily on the client's instructions. If the client is only concerned with avoiding the inconvenience of a public trial through the early termination, then the defense counsel must accept this even if there is a chance of acquittal. The Federal Constitutional Court described this termination of proceedings against one's own conviction as "an act of self-subjugation"[40]. Incidentally, there can be no risk of liability for the lawyer here, since the lawyer's breach of duty regularly ceases to apply if the client's instructions are present.
Even in the event of an uncertain but entirely realistic subsequent acquittal, the defense attorney may suggest discontinuing the proceedings in accordance with § 153 a StPO in view of the existing residual (cost) risks (witness testimony, expert opinions). In some circumstances, he is obliged to do so: according to the rulings of the highest courts, a lawyer is obliged to take the safest route to achieving his client's procedural objective in every procedural situation. [42] The Federal Court of Justice [43] has stated the following on this point: "He (Lawyer) must act in such a way that he avoids harming his client, even if the possibility of such harm can only be foreseen by a legal expert. If several measures are possible, he must take the one that is the safest and least dangerous, and if several paths are possible to achieve the desired success, he must choose the one by which it can be achieved most safely." This means that in the event of a conviction of the defendant, which cannot be completely ruled out, the defense lawyer must also seek a painful fine as the lesser of two evils. Lawyers also have a great deal of leeway when it comes to strategic decisions regarding the defense. 44] The risk of conviction must be assessed ex ante and, as such, as a discretionary decision, is not fully subject to judicial review. A dismissal of a dismissal must only take place in the case of an uncomplicated acquittal of the defendant. There are no known court decisions in which the defendant has been awarded damages due to a strategic error by the defense attorney.
Interestingly, however, case law has already dealt with errors made by a defense attorney in connection with legal initiatives to discontinue criminal proceedings in exchange for a monetary payment: In one case, the defense attorney had failed to request access to the files before the proceedings were discontinued in accordance with § 153 a of the German Code of Criminal Procedure (StPO). After an objection to a penalty order, an agreement had been reached between the parties to the proceedings before the main hearing that the proceedings would be discontinued in return for payment of a fine. During the subsequent inspection of the files, it emerged that the statute of limitations had already been reached with regard to the accusation. 45 This had apparently been overlooked by the public prosecutor and the court.
It is questionable whether use of the suspension may be made if it is doubtful, on purely legal grounds, whether a criminal offense has been committed at all. One argument against this is that a lawyer can be required to thoroughly examine the criminal liability of the accused's conduct. If there is no criminal liability, the proceedings are to be discontinued due to insufficient suspicion. If a dismissal is nevertheless agreed, this may indicate a legal malpractice claim. On the other hand, it should be noted that there is usually no room for doctrinal disputes before local courts and that a miscarriage of justice can often only be corrected in the court of appeal. Furthermore, the provision is now also applied in practice in cases where the legal situation is unclear. This was stated by the Regional Court of Bonn in connection with the dismissal of the criminal proceedings against Dr. Helmut Kohl, as was the Federal Constitutional Court.
III. Summary
1. In conclusion, it can be stated that the dismissal of proceedings in accordance with § 153 a StPO must certainly be regarded as a legal service if, after weighing up all the risks, there is a serious threat of the defendant being convicted.
2. The discontinuation according to § 153 a StPO must not be interpreted negatively for the client under civil law. In a civil recourse action against the alleged hit-and-run driver, the corresponding requirements of § 142 StGB or the violation of the duty to investigate would have to be proven and proved in the event of a discontinuation under § 153 a StPO.
3. Due to the lack of a binding effect of this procedural settlement for one's own civil law claims and recourse claims of one's own motor vehicle liability insurance, the defense counsel does not expose himself to an increased risk of liability if he arranges for the settlement under § 153 a StPO. Lawyers should, however, advise and instruct their clients in detail, pointing out the possible risks under civil law, in particular the often wrongly assumed indicative effect.
4. Apart from the sensational cases of dubious application of the provision to celebrities, in practice, too, an excessive application of the principles of opportunity can be observed in cases that are in no way "investigated through" and in which, for reasons of "procedural economy", it remainsremain open as to whether the behavior of the accused falls under a criminal law and whether this has actually been realized. The inflationary application of § 153 a StPO can be explained above all by the fact that only in this way could or can a collapse of the prosecuting authorities and courts be prevented.
5. In view of the extensive application of the standard, which often goes beyond the wording, a discontinuation of the criminal proceedings must not have any evidential effect on subsequent civil proceedings. Attempts by civil courts to interpret the consent of the defendant to the discontinuation as an acknowledgment of guilt or confession must therefore be stopped, in particular on the basis of the continuing presumption of innocence under Art. 6 II ECHR.
[1] Kaiser, "Tuschelverfahren" and "Millionärsschutzparagraph?", NStZ 1984, 343.
[2] Kaiser, NStZ 1984, 343, 347.
[3] Schä fer, Praxis der Strafzumessung, 3rd edition, 2001, para. 949.
[4] Bur hoff, Handbuch für das strafrechtliche Ermittlungsverfahren, 4th ed., para. 704.
Andrejtschitsch/Walitschewski, Buechting, RAnwHdb., 8th ed., para. 114.
[6] Local Court Mainz, ZfS 1989, 90; Local Court Koblenz, ZfS 1990, 270.
[7] Bauer, in Harbauer, Rechtsschutzversicherung, ARB-Kommentar, 7th ed., § 20 ARB 75 Rn 31.
[8] Ref. 132 C 26290/05 (not legally binding).
[9] r+s 1988, 289.
[10] r+s 1988, 289, 290.
[11] Higher Regional Court of Hamm, NJW-RR 2000, 172, 173.
[12] Federal Court of Justice, NVersZ 1999, 137.
[13] OLG Hamm, NJW-RR 2000, 172, 173.
[14] Itzehoe District Court, NJW-RR 1988, 800.
[15] Judgment of August 9, 2006 – 8 C 93/05, SVR 2006, 430.
[16] " Every person charged with a criminal offense is presumed innocent until proved guilty according to law."
[17] BVerfG, NStZ-RR 1996, 168, 169.
[18] Stein/ Jonas/Schlosser, ZPO 22nd ed., § 14 EGZPO para. 3.
[19] BGH NJW-RR 2005, 1024 f.; OLG Koblenz, NJW-RR 1995, 727, 728.
[20] On this point, see: Huber, ZRP 2003, 268, 271; Lange/Müller, ZRP 2003, 410, 411: According to the Justice Acceleration Act, the draft of § 286 III ZPO should also establish a binding effect of criminal court findings for the civil proceedings. However, this provision was also not introduced.
[21] BVerfG, NJW 1996, 3353, 3354.
[22] Hamm, NJW 2001, 1694 et seq.
[23] Naucke, FAZ v. 10.03.2001, 11.
[24] Jungholt, in: Die Welt, November 30, 2006.
[25] Die Welt, November 29, 2006.
Jungholt, in Die Welt of November 30, 2006.
[27] Schoreit, in: Karlsruher Kommentar zur StPO, § 153 a Rn 12.
[28] Hamm, NJW 2001, 1694.
[29] BVerfG NStZ-RR, 1996, 168.
[30] Schoreit, in: Karlsruher Kommentar zur StPO, § 153 a Rn 10.
[31] Schoreit, loc. cit. para. 10.
[32] B VerfG, NStZ-RR, 1996, 168, 169.
[33] BVerfG, NJW 1996, 3353, 3354.
[34] Hamm, NJW 2001, 1694.
[35] Hamm, NJW 2001, 1694.
[36] Schö[36] Schö[36]ch, in AK, § 153 a StPO, Rn 12.
[37] On this point, see Kaiser, NStZ 1984, 343, 349.
[38] NJW 2001, 1736.
[39] On this point, see Vollkommer/Heinemann, Anwaltshaftungsrecht, 2nd ed. 2003, para. 601.
[40] NJW 1996, 3353, 3354.
[41] Krause, The civil liability of the criminal defense lawyer, NStZ 2000, 225, 229.
[42] RGZ 151, 259, 264.
[43] NJW 1988, 486, 487.
[44] Burhoff, Handbuch für das strafrechtliche Ermittlungsverfahren, 4th ed., para. 956.
[45] AnwBl 1986, 31, 32.
[46] Regional Court Bonn, NJW 2001, 1736.
[47] LG Bonn, NJW 2001, 1736; BVerfG, NJW 1996, 3353, 3354
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.