THE VICTIM IN CRIMINAL PROCEEDINGS:A SYSTEMATIC PORTRAYAL OF VICTIM PROTECTION UNDER GERMANCRIMINAL PROCEDURE LAW
Markus Löffelmann*

I. INTRODUCTION
It is widely believed that the victim of a crime does not have an independent function in a Germancriminal proceeding. In fact, in the literature on victimology there is talk of the “elimination” of the victim ofserious crime from the criminal prosecution process and the replacement of the victim’s interests and needs
with the criminal prosecution apparatus.1 Instead of the emotionally-laden term “victim,” criminal law
dogmatism uses “injured party” or “aggrieved party.”2 The victim takes on significance in a criminal
proceeding primarily as the initiator of the criminal proceeding or as evidentiary material.3 The reason for
the “neglect” of victims “as such” established in numerous victimological studies is generally seen in thelinking of criminal procedure law to material criminal law that is geared toward the offender and the offence,
which places the offender and the establishment of his individual guilt at the centre of the law enforcement
authorities’ investigatory process. This concept corresponds to the state’s monopoly over criminal
prosecutions. In this respect, § 152 subsection (1) of the German Criminal Procedure Code(Strafprozessordnung; hereinafter cited as “StPO”) provides that the public prosecution office is exclusively
appointed to file public criminal charges. In principle, the victim does not have any claim for the punishmentof the offender. The significance of the state’s monopoly over criminal prosecutions, on the one hand, lies in
the need to avoid self-administered justice, and, on the other hand, in guaranteeing a proceeding that takes
account of both the public’s interest in criminal prosecution and the individual interests worthy of protectionof the persons affected by the criminal prosecution measures, in a reasonable way.
These “less creditable”4 findings from the point of view of victim protection exist in contrast to the factthat in a criminal proceeding the injured person as an important figure to be considered is not a new
discovery.5 In §§ 374 through 406h, the Criminal Procedure Code grants victims their own chapter:“Participation of the Aggrieved Person in the Proceedings”. From a historical point of view, participation of
the victim in the criminal proceedings is rather the rule than the exception. Thus, under Germanic law,criminal prosecution was basically in private hands. The Germanic feuding right allowed any free man “torevenge injury to his person, honour, or property with the help of his family when he did not want to take thecompensation ordered under the law”.6 There is first evidence of state intervention in conflicts between
private persons in the early middle ages. Thus, it is written in Article 74 of the Edictus Rothari from 6437,
which is a part of Langobardic law – famous for its progressiveness – that an aggrieved party who took
advantage of compensation (Wehrgeld ), or whose family did so, in return must refrain from the right offeuding. The right of feuding was to be expressly repressed by this and during the subsequent period* Public Prosecutor and Referent (legal officer) for criminal procedure law at the Federal Ministry of Justice, Berlin, Germany.
1 Sessar, Wiedergutmachen oder strafen. Einstellungen in der Bevölkerung und der Justiz (1992), p. 233.
2 Rieß, Der Strafprozeß und der Verletzte – eine Zwischenbilanz, Jura 1987, p. 281; with a view toward the terminology in theEuropean Union, see also Kuhn, Opferrechte und Europäisierung des Strafprozessrechts, ZRP 2005, 125, 126.
3 As to the legal position of the victim under German criminal law: Kilchling, Opferinteressen und Strafverfolgung (1995), pp. 3
et seq.; Berckhauer/Steinhilper, Opferschutz durch Strafrecht und Strafverfahren? – Überblick über die Stellung des Opfers in
der deutschen Strafrechtspflege in: Janssen/Kerner (Hrsg.), Das Opfer im Spannungsfeld der Handlungs- undInteressenkonflikte (1985), pp. 81 et seq.
4 Hartmann, Staatsanwaltschaft und Täter-Opfer-Ausgleich (1998), p. 15.
5 Accord Rieß (fn. 2), 282.
6 Grimm, Deutsche Rechtsaltertümer, Volume 1, 4th Ed. 1899, p. 401.
7 German edition by Beyerle, Die Gesetze der Langobarden (1962).

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became increasingly more limited.8 The Peinliche Gerichtsordnung (penal code) of Emperor Charles V from1532 made the prosecution of serious crimes a matter for the state and brought the offender’s guilt into thefocus of the criminal proceeding.9 In inquisition proceedings in the High Middle Ages, the injured party now
only had the role of informer. The role of the victim became more and more limited in accordance withincreasingly developed state power.10 It seems remarkable that it was particularly the criminal procedure
code of 1877, which developed under markedly authoritarian state conditions, that again gave crime victims
more attention by making available institutions such as private prosecutions, private accessory prosecutions,proceedings to compel prosecution, and applications for prosecution.11 To the extent victimology of the
1980s and 1990s complained of the “neglect” of victims in criminal proceedings, it can be explained by thefact that as to later statutory amendments victims’ interests barely garnered any more attention and victim
protection in criminal proceedings, thus, for a long time was an uncoordinated and inconsistent entity.12
The role of the victim of the criminal offence has recently returned to the attention of the legislature.13
Thus, the Victims’ Compensation Act (Opferentschadigungsgesetz) of 11 May 197614 ensured benefits tovictims of criminal offences or their surviving dependents. The Victims’ Protection Act (Opferschutzgesetz)of 18 December 198615 served to increase the protection of the victim’s rights of personality and granted
victims rights of participation in criminal proceedings. Through the Act on Combating Serious Crime(Verbrechensbekämpfungsgesetz) of 28 October 1994,16 offender-victim mediation was introduced into thegeneral criminal law as a basis for penalty reduction. Through the Witness Protection Act(Zeugenschutzgesetz) of 30 April 1998,17 provisions were incorporated into the Criminal Procedure Codethat serve the prevention of endangerment to witnesses. Through the Act to Embody Offender-Victim
Mediation in Criminal Procedure Law (Gesetz zur strafverfahrensrechtlichen Verankerung des Täter-OpferAusgleichs) of 20 December 1999,18 rules were created that are to enable simpler and more frequent use ofOffender-Victim Mediation. The Victims’ Protection Harmonization Act ( ZeugenschutzHarmonisierungsgesetz) of 11 December 200119 governs particular witness protection measures such as,e.g., the creation of a new identity. Finally, through the Victims’ Rights Reform Act (Opferrechtsreformgesetz)of 24 June 2004, 20 the procedural and information rights of victims in criminal proceedings werecomprehensively increased, burdens from the criminal proceedings for the victim were reduced, and thepossibility for claiming and collecting damage compensation from the defendant in the criminal proceedings
was improved. Through the draft of a law to increase recovery assistance (§§ 111b et seq. StPO), which iscurrently in the legislative consultation process, the possibilities for victims to claim compensation forproperty damage should be improved.21
With a view primarily toward offender-victim mediation one can generally speak of a renaissance of the“re-privatization of the conflict” under state supervision, which has recently been developed in German
8 More detail: Schönfeld, Das Rechtsbewußtsein der Langobarden (1934), pp. 82 et seq.; von Amira, Germanisches Recht,
Volume II, 4th Ed. 1967, pp. 172 et seq.
9 Ebel / Thielmann, Rechtsgeschichte, 3rd Ed., pp. 291 et seq.
10 More detail: Weigend, Deliktsopfer und Strafverfahren (1989), p. 93 with additional citations.
11 Weigend (fn. 10), pp. 96 et seq.
12 Rieß (fn. 2), 283.
13 On the criminal-political development: Jung , Zur Renaissance des Opfers – ein Lehrstück kriminalpolitischer
Zeitgeschichte, ZRP 2000, 159.
14 Federal Law Gazette (Bundesgesetzblatt; hereinafter cited as “BGBl”) I 1976, 1181; additional detail on the legislative
process: Ebert , Hilfe für Verbrechensopfer – Die Bewältigung einer staatlichen Aufgabe mit dem Gesetz über die
Entschädigung für Opfer von Gewalttaten (1981).
15 BGBl I 1986, 2496; additional detail on the legislative process: Kaiser, Die Stellung des Verletzten im Strafverfahren.
Implementation und Evaluation des “Opferschutzgesetzes” (1992).
16 BGBl I 1994, 3186.
17 BGBl I 1998, 820.
18 BGBl I 1999, 2491.
19 BGBl I 2001, 3510.
20 BGBl I 2004, 1354; additional detail on the legislative process: Hilger, Über das Opferrechtsreformgesetz, GA 2004, 478;
Ferber, Das Opferrechtsreformgesetz, NJW 2004, 2562.
21 On the problems of the legal situation up until now: Peglau, §§ 111b et seq. StPO – Lücken im Opferschutz? wistra 2002,
376.

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criminal law. In the following, the position of the victim in German criminal proceedings (Part 1) and thepossibilities available to victims for claiming material and immaterial compensation (Part 2) are addressed indetail together with consideration of the abovementioned statutory amendments.

PART ONE: RIGHTS OF PARTICIPATION AND VICTIM PROTECTION
A. The Functional Role of the Victim in Criminal Proceedings
In regard to the functional role of the victim in criminal proceedings, distinctions can be made among therole of the victim as a person filing a report of a criminal offence, as a witness, as a prosecuting party, and asa co-defendant.
1. The Victim as a Person Filing a Report of a Criminal Offence
Pursuant to § 158 subsection (1) sentence 1 StPO, any person can file a report of a criminal offence withthe public prosecution office, authorities and officials in the police force, or the local courts orally or inwriting. In most cases, criminal prosecution is initiated by the filing of a report by the victim.22 The publicprosecution office, which is the lead investigating office under German criminal procedure law, is thenobliged to initiate an investigation proceeding and inquire into the facts to the extent there are sufficientactual indications that a prosecutable offence was committed. This principle, which is set forth in § 152
subsection (2) and § 160 subsection (1) StPO and which obligates the public prosecution office to take action, is known as the principle of legality. If after the conclusion of its investigations the public prosecution
office concludes that no punishable act took place, that it cannot be proven that the accused committed suchan act, that the accused is not guilty, or if it believes that the filing of criminal charges at the court is notnecessary – e.g., because the matter only involves a minor criminal offence – it must inform the applicant
thereof, indicating the reasons therefor, and inform the applicant, if the person is also the victim of the crime,of the possibility of contesting this decision (§ 171 StPO). The victim then has the option of filing a complaint
against the decision of the public prosecution office with the chief public prosecutor (§ 172 subsection (1)StPO). If the complaint is not allowed by the chief public prosecutor, the victim has one month within which
to apply for the decision of the Higher Regional Court as to a resumption of the investigation proceedings (§172 subsections (2) through (4) StPO). Exceptions are provided regarding this option, for example, when thevictim has the possibility of proceeding through a private lawsuit or if the public prosecution officeterminated the proceeding based upon the minor nature of the offender’s guilt.

Example: The aggrieved party files a report of a criminal offence and applies for prosecution of theaccused because he intentionally damaged the aggrieved party’s automobile. The public prosecution
office terminates the criminal proceeding based upon property damage upon the payment of a monetarycondition in the amount of € 300 into the state treasury. The aggrieved party does not have thepossibility here to compel the filing of a lawsuit and the carrying out of a main proceeding at court.
In the example described above the aggrieved party is advised to assert his claim for damages throughcivil law means. However, there was also the possibility of ordering the payment of the monetary condition
to the aggrieved party. The decision regarding this is within the discretion of the public prosecution office (§153a subsection (1) sentence 1 StPO). An application for prosecution pursuant to § 158 subsection (1)sentence 1 StPO, which gives the injured party the right to be informed pursuant to § 171 StPO and theright to compel prosecution pursuant to § 172 StPO, must be distinguished from the filing of a criminal
complaint described in more detail in §§ 77 through 77d German Criminal Code (Strafgesetzbuch; hereinafter cited as “StGB”) pursuant to § 158 subsection (2) StPO, the provisions of which are a compulsory
prerequisite for criminal prosecution as to complainant offences (e.g., §§ 123, 185 and 194 StGB).
2. The Victim as Witness
The aggrieved party of a criminal offence usually has an important role as a witness because he canprovide testimony regarding the nature and extent of the damage that occurred and also usually details about
the cause of the damage. In Germany, there is a general citizens’ duty to make a statement as a witness in a

22 Bock, Kriminologie, 2nd Ed. 2000, p. 134 talks of over 90% of cases. However, it must be taken into account that crime
reporting behaviour differs considerably among the individual offences, cf. Berckhauer / Steinhilper (fn. 3), p. 106.

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criminal proceeding.23 This duty must be seen from the background that it is not only the victim who isdamaged by a criminal offence, but also the community as such, which provides protection for its members
against attacks by others. Pursuant to § 161a subsection (1) sentence 1 StPO, witnesses are obliged toappear at the invitation of the public prosecution office and to provide a statement about the matter. In theevent of unjustified absence or refusal, a coercive fine or coercive detention may be imposed on the witness.
In addition, he/she will be billed for the costs arising from his/her absence or refusal (§ 161a subsections (2)and (3) StPO). The same applies to the appearance and testimony of a witness before the court (§§ 51, 70
StPO). On the other hand, there is no duty to appear before or provide a statement to the police. In practice,
however, most witness examinations are conducted by officials of the police force, which is better equippedwith personnel. Finally, it must be noted that there could be circumstances that justify the refusal of awitness to give a statement. Such “rights of refusal to testify” are governed by §§ 52 through 53a StPO. § 52
StPO grants a right of refusal to testify to close relatives of the accused, § 53 StPO grants one to persons
who exercise a profession that is characterized by dealing with confidential information (e.g., attorneys or
members of parliament). § 53a StPO grants one to their assistants. The scope of individual rights of refusal
to testify are very disputed.24 Of interest in the context of victims’ rights, in particular, is the right of close
relatives to refuse to testify pursuant to § 52 StPO. This pursues the goal of protecting witnesses from theconflict of testifying against a close relative and, thus, concurrently serves to protect the family.25 On theother hand, there is often a danger that the social milieu of witnesses will exercise influence over them sothat they will exercise their right of refusal to testify.

Example: A young woman is brought to a hospital by relatives; she has serious burns on her arms andupper body and internal bleeding. The relatives tell the doctors that there was an accident at home.
Because this information is not reconcilable with the medical findings, the police are informed. During
police questioning the young woman admits that she has been agonized and hit by her husband’s family
for years. At the later court proceeding, the young woman exercises her right to refuse to testify
pursuant to § 52 StPO. Because of this the earlier statement by the witness is also no longer usable.26
The acts cannot be proven, because there is no other evidence.
Because, especially in cases of domestic violence – e.g., physical injuries between spouses, rape within
marriage, or sexual abuse of children – experience has shown that the crime victim initially provides astatement to law enforcement authorities regarding the crime but then later relies upon the right of refusal
to testify so that the statement can no longer be used, in practice the public prosecution office usuallyapplies for examination of the witness by a judge (§ 162 subsection (1) StPO) in such cases. During the later
main proceeding the examination of the judge who had examined the witness regarding the statements madeto him is admissible.27 In the Rules for Criminal Proceedings and Proceedings on Regulatory Fines(Richtlinien fur das Straf- und Busgeldverfahren; hereinafter cited as “RiStBV”) – which is an administrative
ordinance for the public prosecution offices – this manner of proceeding is expressly recommended, e.g., as
to statements from prostitutes against their pimps (RiStBV No. 248).
3. The Victim as Prosecuting Party
Participation by the victim in the criminal proceedings in which the victim also has an accusatory role isonly possible by means of private prosecution or as a private accessory prosecutor in a public prosecution. A
private prosecution, which is governed by §§ 374 through 394 StPO, is admissible as to certain crimes thatare exclusively listed in § 374 subsection (1) StPO, in which there is no public interest in prosecution
because of their minor nature.
23 Collected Decisions of the Federal Constitutional Court ( Entscheidungssammlung des Bundesverfassungsgerichts ;hereinafter cited as “BVerfGE”) 38, 105, 112.
24 Cf. in detail: Rengier, die Zeugnisverweigerungsrechte im geltenden und künftigen Strafverfahrensrecht. Grundlagen,
Reformfragen und Stellung im System der Beweisverbote und im Revisionsrecht (1979); Wolter/Schenke (Ed.),
Zeugnisverweigerungsrechte bei (verdeckten) Ermittlungsmaßnahmen (2002).
25 Cf. Gärditz/ Stuckenberg in: Wolter/Schenke (fn. 24), pp. 99, 116 et seq.; Zöller in: Wolter/ Schenke (fn. 24), pp. 325, 332 etseq. each with additional citations.
26 This arises from the teleological interpretation of § 252 StPO; cf. Collected Decisions of the Federal Court of Justice in
Criminal Matters (Entscheidungssammlung des Bundesgerichtshofs in Strafsachen; hereinafter cited as “BGHSt”) 2, 99; 7,
194, 195; 11, 338, 39; 13, 394, 395; 20, 384.
27 BGHSt 32, 25, 29; 36, 384, 385; 45, 342, 345; 46, 189, 195.

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Example: A person files a report of a crime against his neighbour because the neighbour repeatedly
insulted and threatened him and trespassed on his property. The public prosecution office referred thecase to private prosecution because experience shows that public prosecution is not suitable for resolving
lasting disputes between neighbours.
However, the public prosecution office can also file public charges itself as to such crimes (§ 376 StPO) or
it can assume the criminal prosecution (§ 377 subsection (2) sentence 1 StPO) when it is in the public
interest to do so.

Example: A person filing a report of a crime asserts that his neighbour hit him in the face and broke hisnose during a dispute. The brutality of the act and the significant injury to the aggrieved person provide apublic interest in prosecution in this case (cf. RiStBV No. 133).
If there is no public interest in prosecution, regarding certain crimes – including trespass, defamation,bodily injury, and property damage – the filing of a private prosecution is admissible only after anunsuccessful attempt at conciliation has been made by a conciliation board (§ 380 StPO). Such conciliation
boards are set up by the Land justice administrations – e.g., in Berlin it is the arbitration board.28 In practice,with only a 6% judgment rate, private prosecutions only play a negligible role. To some extent it is ascribed a“solely judicial relief and decriminalization function” through which “more effective legal protection is only
feigned”.29
Of far more importance in regard to victim protection is the possibility for participation in the publicprosecution as a private accessory prosecutor. The private accessory prosecution, which was originally tied
to private prosecutions, was fundamentally reformed by the Victims’ Protection Act of 1987, by which thevictim was granted extensive powers for action in criminal proceedings, particularly in the sense of “equalityof arms”.30 Private accessory prosecutions, which are governed by §§ 395 through 402 StPO are admissible
as to certain crimes that seriously affect the victim in his personal sphere. The crimes are exclusively listedin § 395 subsections (1) and (2) StPO. These include, e.g., serious sexual crimes, crimes involving bodily
injury, pimping, trafficking in human beings, as well as crimes involving libel or slander, which of course
must exhibit a certain severity to justify the filing of public charges. It is noteworthy in this context thatcrimes under § 4 of the Act on Civil Law Protection against Violence and Stalking (Gewaltschutzgesetz;
hereinafter cited as “GewSchG”) are also entitled to private accessory prosecution since the Victims’ Rights
Reform Act of 2004. Of particular importance in regard to these offences is that they are linked to a violationof a civil law protective order.

Example: A woman is harassed by her ex-husband by nightly telephone calls, threatened, and followed on
the street. The woman obtains a civil law protective order pursuant to § 2 GewSchG, which forbids her
ex-husband from calling or approaching his ex-wife. The ex-husband violates this protective order and,thus, is criminally punishable pursuant to § 4 GewSchG. The woman can join the criminal proceeding as a
private accessory prosecutor.
There are currently detailed discussions in Germany taking place about the problem described above
under the heading of “stalking” in the public and legal policy arenas.31 To improve victim protection,
legislative measures, particularly the creation of the crime of “stalking”, have been demanded.
Only those who are directly injured by the crime are entitled to join as private accessory prosecutors. In
the case of capital crimes, the close relatives of the deceased victim can also join as private accessory
prosecutors. The private accessory prosecutor has a series of rights that were decisively strengthened by
the Victims’ Rights Reform Act of 2004. Thus, for example, upon application an attorney will be ordered as
28 Overview of Land statutes in Meyer-Goßner, StPO, 48th Ed., § 380 margin note 3.
29 Rieß (fn. 2), 289.
30 Details on the origins and objectives of private accessory prosecution: Hinz , Opferschutz, Genugtuung, Wiedergutmachung, DRiZ 2001, 321.
31 Cf. e.g., Sieverding, Stalking – Möglichkeiten und Grenzen polizeilichen Managements, Kriminalistik 2004, 763; Hoffmann,
Stalking. Polizeiliche Prävention und Krisenmanagement, Kriminalistik 2003, 726; Ker-bein/ Pröbsting, Stalking, ZRP 2002,
76.

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legal advisor to the private accessory prosecutor in the case of capital crimes or the crime of trafficking inhuman beings; in other cases financial assistance for the proceedings will be ordered for calling in an
attorney (§ 397a StPO). The private accessory prosecutor also has extensive possibilities for influencing themain proceedings, such as by challenging judges or experts, by exercising the right to ask questions or theright to apply for evidence to be taken, or by the right to make statements (§ 397 subsection (1) StPO).
4. The Victim as Co-defendant
New criminological and victimological studies show that there is no “typical victim” of a crime, butrather, that frequently there is role overlapping between offenders and victims, which indicate both
victimogenic and criminogenic lifestyles.32 Thus, it is also important to perceive victims in their role as codefendant. In this context the general legal principle applies, that no one shall be forced to cooperate in theirown conviction (nemo tenetur se ipsum accusare or nemo tenetur se ipsum prodere).33 This idea isaccounted for in § 55 StPO, which allows any witness to refuse to provide information in response toquestions where the answer could place the witness or a close relative of the witness at the risk of criminal
prosecution. The witness himself must recognize whether there is self-incrimination relevance in regard to
the questions. His protection in this respect is far behind that of the accused, who has to be examined prior
to the conclusion of the investigations (§ 163a subsection (1) StPO), but who has unlimited freedom to makea statement about the matter or not (§ 136 subsection (1) sentence 2, § 163a subsection (4) sentence 2
StPO). Because of the right of the witness to refuse to provide information, it may happen that it cannot be
proven that the accused committed the offence, if the victim was involved in the crime and, thus, uses his
right of refusal to provide information.

Example: An accused person is suspected of trafficking in human beings and pimping. The prosecution
witness is suspected of committing the crime of prostitution in the context of which the accused is undersuspicion.
In such cases it is advisable to first conclude the proceedings against the prosecution witness. If a final
conviction has been made or the proceedings terminated, she is no longer an accused and must comply withher duty as a witness. A special rule for victims of coercion or extortion is contained in § 154c StPO. If
coercion or extortion is committed by the threat of disclosing a criminal offence, the provision allows the
public prosecution office to refrain from prosecuting the crime that is threatened to be disclosed if
conciliation is not necessary because of the seriousness of the crime. The same applies if the victim’s crime
is made known by his report of the coercion or extortion.

B. The Position of the Victim in Criminal Proceedings from a Victimological Perspective
At the outset it was stated that the legislature has recently paid increasing attention to victims as suchand has created rules that serve to protect victims in criminal proceedings.
1. Victimization in the Criminal Proceedings
Victimological studies from the 1980s and 1990s show that for the victim of a crime, the criminal
proceedings can be a considerable burden. Particularly for victims of violent crimes, serious psychologicaldamage often arises, which in the long term can also contribute to an escalation of problems. It is especially
important for crime victims to be taken seriously by the police and before the court. Crime victims often feelthemselves patronized by criminal prosecution authorities or treated as a routine case, which leads tofeelings of helplessness and weakness.34 Victimology distinguishes in this sense among three levels of
victimization: primary victimization comes from being a victim of the crime itself (e.g., through the physicalsuffering and psychological damage), secondary victimization stems from the reaction of the victim’s social
milieu (e.g., suffering from stigmatization, social isolation, or degrading questioning), and tertiary
victimization is the assumption and internalization of the role of victim through repeated primary and

32 Bock (fn. 22), p. 135; Kilchling, Empirische Erkenntnisse aus Kriminologie und Viktimologie zur Lage von Opfern, DVJJJournal 2002, 14, 15 et seq.
33 Detail: Verrel , Die Selbstbelastungsfreiheit im Strafverfahren. Ein Beitrag zur Konturierung eines überdehnten
Verfahrensgrundsatzes (2001), pp. 269 et seq.
34 Baurmann / Schädler, Das Opfer nach der Straftat – seine Erwartungen und Perspektiven, 2nd Ed. 1999, p. 302.

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secondary victimization.35 The repeated confrontation of the victim with the offence and the offenders in thecontext of police, public prosecution office, and court examinations, as well as questioning in the context ofthe main proceeding in some cases through numerous court instances, can further secondary and tertiary
victimization. There are demands on the part of researchers that – just as offenders are aided in their resocialization so that future victimizations should be avoided – so must victims receive professional support
in their reintegration.36 Both of these aspects – victim protection on the one hand and victim assistance on
the other – recently have been increasingly accounted for in German criminal procedure law.
2. Victim Protection in Criminal Proceedingsi) General duties of protection
The courts and the public prosecution offices are generally called upon to show consideration for theneeds of the victim in carrying out their official duties. On the one hand, this is the product of theidea that the state must protect and respect the human dignity of the victim (Art. 1 subsection (1)sentence 2 Basic Law (Grundgesetz) and that the victim, thus, cannot be made into an “object of thecriminal proceeding”.37 In § 81d StPO for example, these ideas are implemented in that way, that in
the case of physical examinations it must be paid regard to the modesty of the affected party. In
addition, the constitutional law principle of proportionality obligates the state to keep the strains
associated with intrusions for affected parties to a minimum. This is expressly set forth for the
public prosecution office in RiStBV No. 4c. In accordance therewith, the public prosecution officemust take into account that the strains arising for the injured party from the criminal proceedings areto be kept to a minimum and that the victim’s needs must be considered in the criminal proceedings.
In the main proceeding this is guaranteed by the presiding judge, who is obliged to maintain orderduring the hearing (§ 176 Courts Constitution Act (Gerichtsverfassungsgesetz ; hereinafter cited as“GVG”). If participants in the proceedings violate the orders issued by the presiding judge, they canbe ejected from the hearing room and a coercive fine or coercive detention may be ordered and
immediately enforced (§§ 177, 178 GVG). In addition, the protection of victims in criminal
proceedings is also guaranteed by a number of other detailed regulations.

ii)

Control over the right to ask questions
Victimological studies show that it is especially important for crime victims to be taken seriously as aperson in the criminal proceedings. Experience shows that placing the veracity of the victim in doubt
and asking disgracing or degrading questions leads to the victim becoming insecure or feelingprovoked and may also contribute to an internalization of the role of victim. Control over the right to
ask questions by the presiding judge in the main proceeding, thus, has an important role in regard tovictim protection. Pursuant to § 68a subsection (1) StPO, questions that could bring dishonour to thewitness or his close relatives or that affect the witness’s private life may only be asked when
essential to clarification of the matter.

Example: The defendant accused of committing rape admits having been friends with the victim for sometime and that they had sexual intercourse by mutual consent several times. In this case, questioning thevictim regarding this is essential to clarify whether the sex had taken place by mutual consent.
Pursuant to § 240 StPO, the presiding judge must also allow the public prosecution office, the defendant,
defence counsel, and the lay judges to question the victim. However, he can reject unsuitable questions or
those that are not relevant to the matter pursuant to § 241 subsection (2) StPO. RiStBV No. 19a contains a
special provision for examinations by the public prosecution office during investigations proceedings. In
accordance therewith, the victim must be treated with particular empathy and consideration during theexamination when it is recognizable that for the victim examination as a witness is associated withsignificant psychological strain. Moreover, the presence of a trusted person should be allowed when the
purpose of the examination is not thereby endangered. During a judicial examination the public prosecutor
must pay particular attention that the victim is not subjected to more strain by the questions andexplanations of the accused and his defence counsel than must be accepted in the interest of uncovering the
35 Bock (fn. 22), p. 135; detail: Kiefl / Lamneck, Soziologie des Opfers. Theorie, Methoden und Empirie der Viktimologie(1986), pp. 170 et seq.
36 Baurmann / Schädler (fn. 34), p. 305.
37 BVerfGE 9, 89, 95; 30, 1, 25; 57, 250, 275; 109, 279, 312.

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truth (RiStBV No. 19a subsection (2) sentence 2). Because repeated examination of the victim prior to themain proceeding can lead to significant strain for the victim, this should be avoided whenever possible(RiStBV No. 19a subsection (3)).

iii) Video examination
Through the Witness Protection Act of 1998, the possibility was created in the StPO for examining
witnesses at risk on audio-video tape and then introducing these tapes as evidence in the mainproceeding. Pursuant to § 58a subsection (1) StPO such recordings should generally take place in thecase of persons under 16 years of age who are injured by a crime or when there is concern that thewitness will not be able to be examined during the main proceeding and the recording is necessary to
the discovery of the truth. Such recordings can be introduced as evidence in the main proceedingunder certain – strict – prerequisites, which also apply to the reading out of an examinationtranscript (§ 255a subsection (1) in conjunction with §§ 251, 252, 253, and 255 StPO). In addition, §255a subsection (2) StPO allows the examination of a witness under 16 years of age to be replaced by
the introduction of the recording of an earlier judicial examination if the defendant and his defence
counsel had the opportunity to participate therein. However, this is admissible only as to certain
serious crimes, particularly those against sexual self-determination and against life. Above all, videotaping has significant importance in regard to children or juveniles who are victims of sexual crimes.
Example : A woman is accused of having caused the 13 year old son of her friend to have sexualintercourse with her against his will numerous times by threatening him with telling his parents about
the incidents. Since it is expected that the victim will not make a statement at the main proceeding in thepresence of the defendant and his parents, the judicial examination of the victim is videotaped and theserecordings are played back during the main proceeding.
This type of presentation of the evidence is an exception under German criminal procedure law, because
under the principle of immediacy evidence that is more factually direct must be used before evidence that ismore removed (cf. § 250 StPO).38iv) Exclusion of the defendant and the public
In practice, criminal prosecutions are not infrequently confronted with the problem that witnesses
only testify at the main proceeding in an unclear manner or make statements that deviate from theirstatements to the police and, thus, the discovery of the truth at the main proceeding is madeconsiderably more difficult. The cause of this behaviour regarding statements often can be traced not
only to gaps in memory but also to the fear on the part of the witness of being exposed to reprisals
from the defendant and those around him/her as to incriminating statements. This problem is taken
into account in § 247 sentence 1 StPO, which allows the defendant to be removed from the hearing
room during an examination when there is a fear that a codefendant or a witness will not speak
truthfully during his/her testimony in the presence of the defendant. In addition, through theVictims’ Protection Act of 1986 the provision was expanded to the effect that removal of the
defendant is also possible when it is feared that the examination of a witness under the age of 16 in
the presence of the defendant will cause considerable detriment to the well-being of the witness orwhen there is a serious danger of a detriment to his / her health. Pursuant to § 247a StPO, which wasincorporated into the StPO by the Witness Protection Act of 1998, it is also possible to examine thewitness outside of the hearing room at another location and to concurrently transmit the audio andvideo of the testimony into the hearing room if there is a risk of a serious detriment to the wellbeing of the witness. Pursuant to § 168e StPO a similar manner of proceeding is also admissible ininvestigation proceedings.
If there could be a risk to the witness’s life, limb, or freedom during the main proceeding, the court may
also exclude the public from the hearing (§ 172 no. 1a GVG). The exclusion of the public is also admissible tothe extent circumstances about the witness’s private sphere will be addressed, the public disclosure ofwhich would violate interests of his / her that are worthy of protection (§ 171b subsection (1) sentence 1
GVG). As to the crimes of promoting prostitution, trafficking in human beings, and pimping, RiStBV No. 248
subsection (2) instructs the public prosecutor to work toward the exclusion of the defendant and the public
when it is feared that the witness will not speak the truth in the presence of certain persons during the main
38 More detail: Roxin, Strafverfahrensrecht, 24th Ed., pp. 335 et seq.

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VISITING EXPERTS’ PAPERS

proceeding. These measures are of particular note because the principle that the main proceeding must takeplace in the presence of the defendant (§ 231 StPO) and the public (§ 169 GVG) is of high importance inGerman criminal procedure law.

v)

Other rights of the victim
Through the Victims’ Protection Act of 1986 and the Victims’ Rights Reform Act of 2004, a series of
information and participation rights for the victim were statutorily embodied in §§ 406d through406h StPO. In particular, pursuant to § 406d StPO, upon application the victim is not only informed of
the outcome of the proceedings, but also of whether detention measures have been ordered or ended
against the accused or the convicted person or whether first-time relaxation of imprisonment or
prisoner’s leave have been granted, if the victim shows a justified interest in this information and thedefendant or convicted person does not have a prevailing interest against this. Pursuant to § 406e
StPO, an attorney may inspect the court files on behalf of the victim, which, e.g., is necessary for theassertion of civil law claims. § 406f StPO allows the victim to make use of the assistance of an
attorney in the criminal proceedings or to be represented by one. If the victim is examined as awitness, upon application he shall be allowed to have a trusted person present during theexamination (§ 406f subsection (3) sentence 1 StPO). Pursuant to § 406h StPO, the victim shall be
informed of his rights by the court.

3. Child and Juvenile Victims
The statutory provisions that serve to protect child and juvenile crime victims in criminal proceedings39
deserve particular attention due to the special protective value of these persons.40 The expanded rights incomparison to those of adults as to the introduction of audio-visual recordings for witnesses under the age of
16 (§ 58a subsection (1) sentence 2 no. 1, § 255a subsection (2) StPO) and the correspondingly expanded
rights for the exclusion of the defendant and the public (§ 247 sentence 2 StPO, § 172 no. 4 GVG) areaddressed above. In addition, there are numerous special provisions in the Guidelines for the Public
Prosecution Office that serve to protect children and juveniles. 41 Thus, pursuant to RiStBV No. 19
subsection (1), repeated examination of children and juveniles prior to the main proceeding should be
avoided when possible because of the psychological strains for these witnesses associated therewith.
Pursuant to RiStBV No. 135 subsection 3, children and juveniles should be examined before other witnesses
when possible and, to the extent possible, supervised and cared for in waiting rooms. The background of thisprovision is that children and juveniles experience particular stress from waiting for their examination. In
the case of sexual crimes, RiStBV No. 222 subsection (1) provides that for the examination of children an
expert must be called in who has particular knowledge and experience in the area of child psychology. If theperson accused of a sexual crime who lives in a household with the victim or has the opportunity to have a
direct affect on the victim is set free, pursuant to RiStBV No. 221 subsection (2), the Youth Office must be
promptly notified so that necessary measures for the protection of the victim can be taken. The provision in§ 26 GVG, which governs the competence of the regional courts in youth protection matters, has significant
practical relevance. In accordance therewith a special chamber for youth protection matters at the regional
court has competence over criminal offences by adults through which a child or juvenile was injured or
directly endangered. Charges should be filed at these courts especially when children or juveniles will benecessary as witnesses in the proceedings. The bundling of competencies should be achieved at thesecourts in regard to the protection of child and juvenile witnesses – e.g., through the use of video recording
technology.

C. Special Witness Protection Measures
In addition to the provisions discussed above, which are primarily aimed at the reduction of thepsychological strains on the victim arising from the criminal proceedings and, thus, have a relatively broad

39 Not considered here are protective provisions outside of criminal proceedings, namely those pursuant to the Child andYouth Assistance Act (Kinder- und Jugendhilfegesetz); More detail on this: Stumpf, Opferschutz bei Kindesmißhandlungen(1995), pp. 72 et seq.
40 Cf. in detail on the problem area of child victims: Kipper, Schutz kindlicher Opferzeugen im Strafverfahren (2001).
41 Practical tips in Blumenstein, Kindliche Opferzeugen im Strafprozess – unkindgemäße Schicksale und Verfahrensweisen,
DVJJ-Journal 2002, 28; Kilian, Opferschutz und Wahrheitsfindung – ein Widerspruch?, DRiZ 1999, 256; Zschockelt / Wegner,
Opferschutz und Wahrheitsfindung bei der Vernehmung von Kindern in Verfahren wegen sexuellen Mißbrauchs, NStZ 1996,
305.

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area of application in practice, German law also provides measures for the protection of especiallyendangered witnesses.
1. Promise of Confidentiality
In order to enable verification of the statements by a witness through bringing in other evidence, theidentity of the witness generally must be known to the court. Information regarding the person may not –even upon the existence of the right of refusal to testify – be refused. In exceptional cases, however, thepublic prosecution office can guarantee the secrecy of the identity of a witness if there is a particular risk
situation for the witness. This especially arises in the area of serious crimes, particularly organized crime,
illegal trafficking in drugs and weapons, counterfeiting of money, and state security-related offences. The
victim’s statements are then introduced into the main proceeding by the police officer who had examined thewitness. There are several provisions that deal with the problem of confidentiality in certain stages of thecriminal proceeding (cf. § 68 subsection (2) and (3), § 161a subsection (1) sentence 2, § 200 subsection (1)sentences 3 and 4, § 222 subsection (1) sentence 3 StPO) and provisions specially designed for theprotection of civil servants (§§ 54, 96 StPO) and undercover agents (§ 110b subsection (3) StPO). In
practice, however, this manner of proceeding is used with a great deal of restraint. Appendix D to theRiStBV contains detailed guidelines for this procedure.
2. Witness Protection Programmes
In accordance with the case law of the Federal Constitutional Court ( Bundesverfassungsgericht),
witnesses must be protected by the state from danger to life or limb to which they may be exposed throughparticipation in a criminal proceeding.42 However, there is also a particularly large state interest in obtaining
and maintaining the ability and willingness of important witnesses to testify, especially those from theoffender’s immediate surroundings. This can only be achieved when such persons are provided effective
protection against reprisal. 43 This is accounted for in the Witness Protection Harmonization Act(Zeugenschutz-Harmonisierungsgesetz; hereinafter cited as “ZSHG”) of 2001, through which for the firsttime a clear statutory basis for witness protection measures was created. Pursuant to § 1 ZSHG, a witness,
his relatives, and other persons close to him can be protected when, because of their willingness to testify,
they are endangered as to life, limb, health, freedom, or significant assets, they are suitable for witness
protection measures, and they agree to such measures. Among others, the witness and his/her relatives may
be temporarily given new identities pursuant to § 5 ZSHG. To protect against the danger, at the beginning of
the protective measures the person to be protected usually will be removed from their living environmentand brought to another location. Additional supporting measures may include psychological care, temporarily securing their livelihood, protective observation, and furnishing documents for their new identity.

42 BVerfGE 57, 250, 284.
43 Cf. Federal Parliament (Bundestag) Printed Matter 14 / 638, pp. 1, 11; 14 / 6279, pp. 3, 8.

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