MEASURES TO PROTECT VICTIMS IN GERMAN CRIMINAL PROCEEDINGS
A summary with special focus on the key points of the Second
Victims’ Rights Reform Act.
Martina Peter 1

I. INTRODUCTION

Germany has already legislated a good standard of victim protection. For the past 25 years,
legal academics and policy-makers alike have been devoting increased attention to the victim
in criminal proceedings. While the United Nations’ Declaration of Basic Principles of Justicefor Victims of Crime and Abuse of Power of 29 November 1985 2 provided vital momentum at
the international level, in the course of these developments important legislation has been
adopted in Germany. Reference should initially be made to the “First Act for the
Improvement of the Standing of Aggrieved Persons in Criminal Proceedings” or the Victim
Protection Act (Opferschutzgesetz) of 18 December 1986. 3 This was followed by legislation
which included the “Act for the Protection of Witnesses in Examinations in Criminal
Proceedings and for the Improvement of Victim Protection” or the Witness Protection Act(Zeugenschutzgesetz) of 30 April 1998, 4 and the “Act for the Improvement of the Rights ofAggrieved Persons in Criminal Proceedings” or the Victims’ Rights Reform Act(Opferrechtsreformgesetz) of 1 September 2004. 5 Vital impetus has also been provided by the1

Legal Desk Officer, Division for Criminal Procedure (Court Proceedings), Directorate-General for the Judicial
System, German Federal Ministry of Justice2
Assembly Resolution 40/43 including Annex
3
Federal Law Gazette (BGBl), 1986 Part I, p. 2496
4
Ibid, 1998 Part I, 820
5Ibid, 2004 Part I, 1354

Framework Decision of the European Union of 15 March 2001 on the standing of victims incriminal proceedings. 6
Considering the fact that the legal position of victims in criminal proceedings requires
constant scrutiny, and that there should be an ongoing assessment of whether any further
measures to improve their situation appear advisable, the German Federal Government has
recently taken another initiative to further strengthen the legal position of witnesses andaggrieved persons in criminal proceedings. In February 2009, it submitted the “Draft Bill foran Act to Strengthen the Rights of Aggrieved Persons and Witnesses in Criminal
Proceedings”, or the Second Victims’ Rights Reform Act (2. Opferrechtsreformgesetz), to theGerman Bundestag. 7 After passage by the Bundestag, the Act entered into force on 1 October
2009. 8 In the course of the legislative process, several additional measures were taken to
improve victim and witness protection.

II. LEGISLATIVE MEASURES OF THE SECOND VICTIMS’ RIGHTSREFORM ACT
A. General Aims of the Second Victims’ Rights Reform Act
The measures taken with the Second Victims’ Rights Reform Act build on thelegislative measures taken to date in Germany to improve the level of protection for victims
and witnesses. In doing so, the fundamental allocation of roles stipulated in the system ofcriminal proceedings remains unaffected. Above all, the aim was to achieve practicalimprovements for the victims of crime without challenging the right of the accused to a fairtrial in accordance with the rule of law.

6

Framework Decision of the European Union of 15 March 2001 on the standing of victims in criminal
proceedings (2001/220/JHA), Official Journal of the European Communities, L 82/1
7
Bundestag Printed Paper 16/12098 (Government Bill)
8
Federal Law Gazette, 2009 Part I, p. 2280

2

In order to enhance the rights of victims and witnesses of crime in criminal proceedings asappropriate, and to ensure that their existing rights are enforced more consistently, the Act
pursues three central goals:
1. To strengthen the procedural rights of aggrieved persons in criminal proceedings.
2. To strengthen the rights of juvenile victims and witnesses.
3. To strengthen the rights of witnesses.
In the following, referring to the various stages of criminal proceedings, I will examine thecurrent situation in Germany in terms of victim and witness protection, as well as thechallenges and problems identified in drawing up the Second Victims’ Rights Reform Act andthe specific measures taken with this legislation.

B. Strengthening the Procedural Rights of Aggrieved Persons in Criminal Proceedings:
Measures taken in the Investigation and Prosecution Stage

1. The Standing of Victims as the Complaining Party in Investigation Proceedings(i) The situation before the Second Victims’ Rights Reform Act entered into force
In accordance with section 158 (1) first sentence of the German Code of Criminal
Procedure (Strafprozessordnung, StPO), anybody may file information of a criminal
offence orally or in writing with the public prosecution office, with authorities andofficials in the police force, and with the local courts. In most cases, criminal
prosecution is initiated as the result of information filed by the victim. 9 This isfollowed by the obligation on the part of the public prosecution office, which is thelead investigating agency in German criminal procedural law, to launch investigation
proceedings and investigate the factual situation, provided that sufficient actual
9Bock, Kriminologie, 2nd edition, 2000, p. 134 speaks of over 90% of cases3indications of a crime exist. This principle, which is set forth in section 152 (2) andsection 160 (1) StPO, and obligates the public prosecution office to take action, isreferred to as the Legalitätsprinzip, or the “principle of legality.”
After completing its investigations, the public prosecution office considers whether
public charges are to be preferred. If it does not prefer public charge, it must informthe complainant of its decision and indicate the reasons therefor. The reasons for notpreferring public charges might include:No criminal offence has been committed.

No evidence can be provided that the accused has committed such offence.



Only a minor offence has been committed and the public prosecution office
therefore does not consider it necessary to prefer public charges before a courtof law.

Moreover, the public prosecution office must inform the victim of the criminal
offence of the possibility of contesting this decision (section 171 StPO). The victim
then has the opportunity to lodge a complaint within two weeks with the Office of the
Public Prosecutor General against the decision of the public prosecution office(section 172 (1) StPO). If this complaint is dismissed by the Office of the Public
Prosecutor General, the victim may move within one month to the Higher Regional
Court for a decision on whether to reopen the investigation proceedings (section 172(2-4) StPO).
These regulations generally apply irrespective of where the criminal offence wascommitted. This means that even before now, in accordance with section 158 (1) StPO,
information of an offence committed abroad could likewise be filed with one of thedomestic authorities indicated therein. For example, if the victim files information
with the police – as in the overwhelming majority of cases – the latter must forward
this to the competent public prosecution office; under its obligation to investigate
4pursuant to section 160 (1) StPO, the public prosecution office must establish how toproceed with the information, determining in particular whether German criminal law
applies to the offence according to the provisions of the General Part of the Criminal
Code (Strafgesetzbuch, StGB).

(ii)

Filing information of a criminal offence committed abroad under the Second

Victims’ Rights Reform Act
Building on the existing legal foundation, lawmakers recognised the additional
need for reform in those cases where information is filed in Germany of a criminal
offence committed elsewhere in Europe.
A new section 158 (3) StPO makes clear that, for aggrieved persons who havefallen victim to a criminal offence in another Member State of the European Union,
the option exists to file information of this offence in Germany. Furthermore, clear
rules are now in place on how to proceed with this information – particularly in whichcases it must be forwarded to the competent authorities abroad. There was previously
no such regulation in German criminal law. This is significant for the victim
particularly in cases where, due to the foreign dimension, criminal proceedings cannot
be conducted in Germany.
(a) Duty to forward the information
Section 158 (3) first sentence StPO now stipulates that when an aggrieved
person residing in Germany files information with a German law enforcement
agency of a criminal offence committed in another Member State of the European
Union, which for certain reasons is not prosecuted in Germany, the publicprosecution office must forward this information to the agency responsible for5criminal prosecution in the other Member State if requested to do so by the person
filing the information. This may have a bearing in several scenarios:

Information must be forwarded in this way when German criminal law
does not apply to the offence.

Example: A British citizen residing in Germany files information of a robbery
committed against him while on holiday in Spain, and would like this offence
to be prosecuted in the United Kingdom. The German authorities are now
explicitly obliged to forward the information of this criminal offence to theUnited Kingdom.


A need for rules was also seen in cases where a German who has been
aggrieved as a result of a criminal offence committed in another Member
State wants to file information of this offence, for example, upon his returnfrom holiday. In such cases, according to section 7 (1) StGB, Germancriminal law applies if the act is a criminal offence at the locality of its
commission, or if that locality is not subject to any criminal jurisdiction.
With the new rules, the information must also be forwarded if the criminal
offence committed in the other Member State is indeed subject to Germancriminal law, but the public prosecution office has made use of its powers
under section 153c (1) first sentence, number 1 StPO to dispense withprosecuting a criminal offence committed exclusively outside the territorial
scope of the Code of Criminal Procedure. An obligation to forward
information has therefore now been established for this scenario as well.

Example: A German citizen files information of grievous bodily harmcommitted against his person while on holiday in France. The offence ispunishable by both German and French law. However, the German public
6

prosecution office dispenses with prosecution in Germany in accordance withsection 153c (1) first sentence, number 1 StPO because the offence has beencommitted outside the territorial scope of the German Code of Criminal
Procedure.
Now the authorities are explicitly obliged to forward the information of thiscriminal offence to France, if so desired by the person affected.
(b) Requirement of motion
It is stipulated in sentence 1 of the new rules of section 158 (3) StPO that
information must be forwarded only if the person filing the information, i.e. theaggrieved person, makes an express motion therefor. This is because, as a rule, it may
be assumed that information of a criminal offence will be filed in Germany, and thatthe intention will be to further pursue prosecution of the offence in Germany itself.

(c) Limitations of the duty to forward
Sentence 2 of section 158 (3) StPO contains limitations of the duty to forward
information.
First of all, limitations apply to the duty to forward for the event that boththe fact of the offence itself and the circumstances detailed by the
aggrieved person when filing information of the offence which are relevant
to its prosecution (e.g. the event of the crime and the evidence available)
are already known to the competent law enforcement agencies abroad. In
this case, a duty to forward the information nonetheless would entail awasted effort.

7

Furthermore, sentence 2 stipulates that, in the case of minor offences, aduty to forward information exists only if the person filing it was not in theposition to file information of the offence in the other state.

Example: If a victim has a piece of costume jewellery with a value of 20 euros
stolen abroad, and would have been able to explain the facts of the case to the local
police in a comprehensible manner, the German public prosecution office would
not be obliged to forward information filed of the offence in Germany to the law
enforcement agencies abroad. This is because forwarding this information could
entail considerable effort and costs, which in individual cases may not bear any
relation to the severity of the offence.
In the case of serious criminal offences, however, such limitations do not apply.
It generally makes sense that in most cases people who have fallen victim to acriminal offence abroad will be somewhat hesitant to file information of thisoffence in a country where they do not know the language, and are not familiar
with the institutions and how they function. It would seem unfair to burden
persons who have only just been aggrieved as the result of a serious criminal
offence with the additional decision of whether – given their individual caseand the scale of the difficulties indicated – they can be expected to fileinformation of the offence on location.

The new rules of section 158 (3) StPO also implement the Framework Decision of
the European Union on the standing of victims in criminal proceedings, 10 namely
Article 11 (2) thereof. 11

10

Framework Decision of the European Union of 15 March 2001 on the standing of victims in criminal
proceedings (2001/220/JHA)

8

2. Ensuring the Safety and Privacy of Victims and Witnesses(i) The situation before the Second Victims’ Rights Reform Act entered into force

Many measures have already been taken in Germany to ensure the safety and privacyof victims and witnesses.
(a) Witness Protection Harmonisation Act
One example is the 2001 Witness Protection Harmonisation Act(Zeugenschutz-Harmonisierungsgesetz, ZSHG), 12 which for the first time
provided a clear legal framework for witness protection arrangements. According
to section 1 ZSHG, a witness and his or her family or loved ones, if they aresuited to witnesses protection arrangements and they agree to such arrangements,
can be protected if, due to their willingness to testify, they are exposed to a threat
to life, limb, health, freedom or considerable assets. Section 5 ZSHG stipulates,inter alia, that witnesses and their families and loved ones can be provided
temporarily with new identities. As a risk-aversion measure, once the protection
programme begins persons under protection are regularly removed from theircurrent environment and accommodated elsewhere. Other concomitant measurestaken include the provision of psychological care, temporary assistance withliving costs, ensuring the security of those subject to protection by keeping themunder observation, and the provision of new identity documents.

(b) Provision of address details

11

Article 11 (2), subparagraph 2 of the Framework Decision stipulates in particular that the competent authority
to which the complaint is made, insofar as it does not itself have competence in this respect, shall transmit itwithout delay to the competent authority in the territory in which the offence was committed.
12Federal Law Gazette, 2001 Part I, p. 3510

9

Privacy protection for victims and witnesses in criminal proceedings is also
becoming increasingly important even below the threshold of threats on this scale
and the steps necessary to counteract them.
Many victims are afraid of giving their personal details when being examined.
Especially in cases of serious violent crime, victims fear that the perpetrators
might find out their addresses and seek revenge.
Generally, when being examined as witnesses, victims are obliged to state theirfirst name, surname, age, profession and place of residence (section 68 (1) StPO).
This serves to avoid mistaken identity. It is also designed to provide a reliablebasis to judge credibility and to allow the parties to make inquiries.
However, there are exceptions (section 68 (2) and (3) StPO). In order to guard
the addresses as well as the personal details of victims and witnesses, the previous
law foresaw a range of precautions, providing for a graded system of secrecy
options depending on the threat posed. This applied in principle both to witness
examinations and the bill of indictment as well as the documents in the files. In
practice, however, these rules were rarely followed, above all during investigation
proceedings; this led to situations where witness addresses were misused.
Example: While surfing the Internet, an uninvolved witness stumbles upon thewebsites of right-wing extremist organisations, the content of which is punishable
under German criminal law. He reports this to the police. In doing so the witness’s
address is put on record. The public prosecution office launches investigation
proceedings. In being granted access to the files (through a defence attorney), theright-wing extremist organisations learn of the witness’s address. The
organisations release the address on the Internet with the tip-off: denouncer lives
here.

10

(ii) Measures to shield address details pursuant to the Second Victims' Rights reformact
The Second Victims’ Rights Reform Act maintains the graded system of secrecy
options, including the basic obligation for witnesses to provide personal details.
However, the system has been better calibrated, and has also been extended as
appropriate in order to make it work in practice as well to protect the rights of victims
and witnesses.

(a) Witnesses’ addresses
Section 68 (2) first sentence StPO preserves the possibility of granting
permission to allow witnesses, when being examined, to provide their place ofwork, or another address at which documents can be served, instead of their“place of residence,” i.e. their home address, if there is reason to fear that theyor another person will be put in danger by providing the latter. Such a threat
may be assumed if a witness or a third party has already been subject to or
threatened with attack, or if a threat is perceived based on criminal indications,criminological experience or life experience. 13
First of all, the Second Victims’ Rights Reform Act has made clear that thelegal interests of the witness are at stake.

The amendment to section 163 (3) StPO has also made clear that the provisionsof section 68 StPO, which serve to protect witnesses’ address details, must be
observed by the police even at the investigation stage. Before now, theseprovisions applied primarily to the main hearing. In practice, the aim here is toattach greater weight to these provisions, which are in place to protect

13

Meyer-Goßner, StPO, 52nd edition, 2009, section 68, margin number 1211witnesses but had rarely been followed in practice, as well as to ensure that thisinformation is now protected throughout the entire course of the proceedings.
Furthermore, the right of witnesses in certain cases not to provide informationon their place of residence, as already stipulated in section 68 StPO, has been
extended as necessary – also with the aim of protecting witnesses. From now
on, this option will also exist when there is reason to fear that the witness will
be subjected to improper influence. This has a bearing, for example, in the caseoutlined above, when a completely uninvolved witness reports offences
committed by right-wing extremist organisations that have already engaged inefforts to intimidate.



These provisions may also have a bearing in stalking cases.
Example: A witness substantiates that testifying as a witness and providing herhome address might well result in attempts to influence and harass her if thisinformation is made available during proceedings. The alleged perpetrator,
whom she has reported, has previously engaged in stalking and the witness has
since moved. Such witnesses will now be given the option of providing e.g. theaddress of a victim support organisation instead of their own. The court canthen summon the witness via this address.
Also, it is now clear that when her/his legal interests are at stake, the victim
should be supported in naming an address other than her/his home address
at which documents can still be served.

12

(b) Handling witnesses’ data and the right to inspect files
With the second Victims’ Rights Reform Act, section 68 (5) StPO now stipulates
that when a threat exists, the information provided by witnesses regarding theiridentity or place of residence may not be made available even following their
testimony to those who pose a threat to the witness or victim.
Example: During judicial examination it emerges that the accused has threatened awitness, but does not yet know where she lives. However, she has already provided
her address during police questioning. From now on, she is permitted to refrain fromproviding her address, which means she must be summoned via a victim support
organisation. Also, the authorities now need to make sure that the accused cannot learnof her home address from inspecting the files. Any enquiries regarding credibility
must then follow in the main proceeding.
In cases where there is reason to fear that witnesses will be in danger or improperly
influenced, it is therefore justified, considering all concerns worthy of protection, forthem not to have to provide their home address. In such cases the justified interest of
witnesses in keeping their home addresses secret must generally take precedence overthe interests of the other parties in the proceedings in receiving this information.
In addition, it is usually not the witnesses’ place of residence that is vital ininvestigating the veracity of witness testimony, but rather the substance of thetestimony itself and the conduct of the witness in testifying. 14 The investigation of thetruth is best served when a victim can testify without fear of danger or influence.

14

Decision of the Federal Court of Justice, Neue Zeitschrift für Strafrecht (NStZ), 1990, p. 352

13

(c) Witness’s address in the bill of indictment
Corresponding to the measures already described, and with the aim of better
considering the personality rights of all witnesses (and not only those in danger), theSecond Victims’ Rights Reform Act has now made it clear that witnesses’ addresses
need not be included in the bill of indictment (section 200 (1) StPO). The previous
standard practice in Germany was to provide the full addresses in the bill of indictmentof witnesses named therein. Several victim support organisations have complained that
this automatically reveals the addresses of all witnesses to the accused in every
proceeding, since according to section 201 the bill of indictment is to becommunicated to the accused.

With the Second Victims’ Rights Reform Act, section 200 (1) third sentence StPO
now stipulates that the full address need not be stated when naming witnesses in thebill of indictment.

In the overwhelming majority of cases it is not necessary for the defendant to know
witnesses’ addresses. However, should this be necessary in specific cases for the
purpose of verifying credibility, the defendant can obtain this information from thefiles upon inspection.

3. Providing Information for Victims of Crime

The right of victims to information in criminal proceedings is of singular importance evenat the investigation stage. Indeed, people can exercise their rights only if they are aware of
them.

14

(i) Information requirements according to the previous law
The formerly applicable law already contained comprehensive information
requirements for victims of crime. According to section 406h StPO, victims were to bemade aware in particular of the following rights:
The possibility according to section 406d StPO of being notified, upon
application, not only of the outcome of proceedings, but also whether custodial
measures against the defendant or convicted person have been ordered or
terminated, and whether relaxation of the conditions of detention or leave fromdetention has been granted for the first time; this applies if the victim can showa legitimate interest in receiving this information and if there is no overriding
interest on the part of the defendant or convicted person which constitutes an
obstacle to providing such information.



The possibility as stipulated in section 406e StPO for an attorney to inspect the
court files on behalf of the victim, and/or for the victim to himself receive
information and copies from the files, which is required e.g. for asserting civil
claims.



The possibility according to section 406f StPO of availing oneself of theassistance of an attorney or of being represented by such attorney in criminal
proceedings; or, if being examined as a witness, the possibility that the witness
may bring along a person he trusts to the examination (section 406f (3) first
sentence StPO).

15

The possibility provided by section 403 et seqq. StPO of asserting a claim fordamages against the wrongdoer as early as the criminal proceedings stage bymeans of a so-called “adhesive procedure” (Adhäsionsverfahren).

(ii) Changes to the provision of information to aggrieved persons with the Second
Victims’ Rights Reform Act
The information requirements described above are maintained by the Second
Victims' Rights Reform Act and have been further extended as follows:(a) Further information requirements:In addition, a duty to inform victims of a potential entitlement tobenefits

pursuant

totheVictims’Compensation

Act(Opferentschädigungsgesetz) was adopted. These can be considered if,
as a result of the offence, the aggrieved person has suffered serious
health damage. Without the relevant information, aggrieved persons areoften not aware that the Victims’ Compensation Act exists.


Similarly, section 406h StPO number 4 creates a duty to provide
information on the Act on Civil Law Protection against Violent Acts
and Stalking (Gewaltschutzgesetz) and the possibilities created by thisact, which allow the aggrieved person to move for the issuance of aninterim injunction to protect against further aggrievement.

Like all other duties to inform, the duty to inform victims of thepossibility of receiving help and support from victim support
organisations has also been made mandatory. This is because, apartfrom some exceptions, there is no discernible reason why information16



Since the amendment to section 80 (3) of the Youth Court Act(Jugendgerichtsgesetz, JGG) came into force on 31 December 2006, itis permissible in certain cases for a private accessory prosecutor to join
the public prosecution against a juvenile defendant, which means
information must now be provided regarding section 80 (3) JGG as well.

With the addition of the wording "in particular" (insbesondere) it has
been made clear compared with the previous text that in specific cases
it may also be necessary to inform aggrieved persons of otherpossibilities, e.g. accommodation in a women’s shelter or applying toprohibit the residents’ registration office (Einwohnermeldeamt) fromdisclosing information.

(b) Providing information at an early stage
In particular, it seemed essential to inform victims of their rights as early as
possible. In practice, however, this was already being done. But with theamendments in section 406h first sentence StPO, it is now explicitly regulated
in law that the information required by section 406h StPO must be provided at
the earliest possible stage.
(c) Information in writing
Furthermore, section 406h first sentence StPO stipulates that informationmust generally be provided in writing so that it is available to aggrieved
persons at all times. This is also necessary because aggrieved persons are often
unable to fully grasp the information provided verbally in their pre-trial
17

appointments with the law enforcement agencies – appointments which theyoften find disconcerting. Since the overwhelming bulk of information isalready provided in special leaflets, no major practical changes were needed
here.
(d) Information for the aggrieved person in a language he understands
Section 406h first sentence StPO stipulates that, to the extent possible,
information must be provided in a language that is understandable to theaggrieved person. This requirement is also consistent with the rights enjoyed
by defendants in criminal proceedings. It necessitates the translation of theleaflets generally provided to aggrieved persons at least into all “standard”
languages. In practice, this reform did not entail a major overhaul in Germany,
since those leaflets made available to crime victims had already been translated
into a great number of the more commonly used languages, including almost
all European languages as well as Arabic and Vietnamese.

C. Strengthening the Procedural Rights of Aggrieved Persons in Criminal Proceedings:
Measures taken in Court Proceedings
1. Joining the Prosecution as a Private Accessory Prosecutor
From the point of view of victim protection, it is important for victims to be able to join the
public prosecution as a private accessory prosecutor (Nebenkläger). Joining the publicprosecution as a private accessory prosecutor gives the aggrieved persons named in section
395 StPO comprehensive powers to participate in the entire proceedings starting with thepreferment of public charges. 15 Private accessory prosecutors have the possibility of15

cf. Meyer-Goßner, StPO, 52nd edition 2009, before section 395, margin number 1

18

contributing actively to the proceedings and influencing them by means of statements,
questions, motions and even appellate remedies.

(i) The situation before the Second Victims’ Rights Reform Act entered into force
The participation of a private accessory prosecutor regulated in sections 395
through 402 StPO was permitted in the case of certain serious crimes, an exhaustive
list of which could be found in section 395 (1) and (2) StPO. These included not only
serious sexual offences, bodily harm, pimping and human trafficking, for example, butalso defamation (cases which must, however, demonstrate a certain severity to evenwarrant the preferment of public charges). The group of individuals entitled to join the
public prosecution as a private accessory prosecutor has been gradually extended since
the fundamental reform of this right in 1986. As part of this process, the Sixth
Criminal Law Reform Act of 28 January 1998 16 and the Witness Protection Act of 30
April 1998 17 added victims of human trafficking and victims of certain cases of sexual
abuse. With the Victims’ Rights Reform Act, 18 which entered into force on 1
September 2004, the offences stipulated in the Act on Civil Law Protection Against
Violent Acts and Stalking were added to the catalogue under section 395 (1) number 1
StPO, and family members of those killed were also given the power to join the publicprosecution as private accessory. With the 37th Criminal Law Amendment Act (37.
Strafrechtsänderungsgesetz), 19 which entered into force on 19 February 2005, victimsof human trafficking were added to the group of people entitled to join the publicprosecution as private accessory prosecutor, as were victims of stalking with the Act to16

Federal Law Gazette, 1998 Part I, p. 164
Ibid, p. 820
18
Federal Law Gazette, 2004 Part I, p. 1354
19
Ibid, 2005 Part I, p. 239
17

19

Criminalise Stalking (Gesetz zur Strafbarkeit beharrlicher Nachstellung), 20 which
entered into force on 31 March 2007.

(ii) Changes introduced by the Second Victims’ Rights Reform Act
As opposed to a further step-by-step expansion of the group of persons entitled tojoin the public prosecution as a private accessory prosecutor, the Second Victims’
Rights Reform Act strives to provide a coherent overall concept and new direction for
section 395 StPO. This overall concept was designed to revolve consistently andrecognisably around the criterion of protecting those victims who are particularly
vulnerable. With this concept, the Federal Government legislative initiative followed
the recommendations of academics and practitioners.
(a) Legal policy implications
As early as in the 1984 report for the 55th German Jurists’ Forum(Deutscher Juristentag), which focused primarily on the rights of aggrieved
persons in criminal proceedings, it was stated that particularly vulnerable
aggrieved persons – above all the victims of serious crimes of aggression 21 –should have direct, priority access to the institution of private accessory
prosecutor without problematic auxiliary arrangements.
This concept also formed the general basis for the creation of the 1986
Victim Protection Act. 22 This was why the entitlement to join the publicprosecution as private accessory prosecutor was created primarily for persons
aggrieved as the result of a serious criminal offence against their highly
personal legal interests and who can be considered particularly vulnerable
20

Ibid, 2007 Part I, p. 354
Rieß, Gutachten 55. Deutscher Juristentag, C 85, margin number 123
22
cf. Bundestag Printed Paper, 10/5305, p. 8 f
21

20

according to criminological and victimological insights. 23 Academic studies
also confirm that the institution of private accessory prosecutor should beoriented even more consistently towards the vulnerability of the victim – where
this vulnerability stems in particular from the gravity of the criminal offence,
directed against the victim’s highly personal legal interests – as well as towards
the consequences of the offence for the victim. Here, it has been establishedthat for victims testifying as witnesses, apart from the support provided indealing with the personal consequences, the more severe the injury the more
important it is for the victim to be able to influence the course of events in thecriminal proceedings. 24
Further, for quite some time victim support organisations have been callingfor other crimes typically involving a particularly serious impact on the
aggrieved person, such as robbery, particularly serious cases of coercion andblackmail, as well as aggravated theft, also be included in the group of crimes
subject to joinder.
(b) Qualifying for joinder as private accessory prosecutor according to theSecond Victims’ Rights Reform Act
With the Second Victims’ Rights Reform Act these demands have been met
for the most part. The power to join the public prosecution as private accessory
prosecutor has now been oriented more towards the need to protect thosevictims who have been particularly seriously affected – above all, victims ofserious acts of aggression and sexual crimes.
This means that certain offences, which cannot typically be classified asserious and which do not entail serious consequences for the victim

23
24

Ibid, p. 11
cf. Kilchling, Opferinteresse und Strafverfolgung, 1995, p. 291

21

(such as defamation), no longer automatically entitle the victim to join
the public prosecution as private accessory prosecutor.
On the other hand, a fall-back clause was created, which was designed
to give the victims of all crimes, especially those against highly
personal legal interests – of which some are listed as examples “inparticular” – the right to join the public prosecution as a private
accessory prosecutor if it appears expedient to do so, particularly on
account of the serious consequences of the offence.

Whether particular reasons exist depends primarily on how serious theconsequences of the offence are for the victim. The wording is thus
geared towards the former version of section 395 (3) StPO, which gave
victims the power to join the public prosecution as private accessory
prosecutor in the case of negligent bodily harm if this was expedient i.e.
due to the serious consequences of the offence. With the imprecise legal
term “particular reasons” (besondere Gründe), the goal of continuing to
specify the seriousness of the consequences of the act is to underscorethat crimes which inflict no serious consequences on the victim do notentail the right to join the public prosecution as private accessory
prosecutor.

Example: In average cases of negligent bodily harm in road traffic, thevictim is, as before, not entitled to join the public prosecution as private
accessory prosecutor if – as is generally the case – he has not sufferedserious consequences as a result.


Serious consequences will be demonstrated in particular if theaggrieved person has endured or can be expected to endure a certain22

25

The provision more thoroughly addresses the vulnerability of victims
who have been affected by the serious consequences of a criminal
offence against their highly personal legal interests.
2. Assistance for Aggrieved Persons: the Situation before the Entry into Force and Reforms of
the Second Victims' Rights Reform Act
Aside from joining the public prosecution as private accessory prosecutor, which as statedabove is an option available to certain aggrieved persons only, the legal institution of attorneyassistance is also important for victims of criminal acts. Even previously, the law stipulated
that all aggrieved persons may avail themselves of the assistance of an attorney in criminal
proceedings (sections 406f, 406g StPO). The Second Victims’ Rights Reform Act has
considerably simplified these provisions and thereby made them easier to apply. For example,
the law now states expressly and in detail that the counsel of an aggrieved person with theright to join the public prosecution as private accessory prosecutor is to be informed of thedate of the main hearing. Until now, it was only the private accessory prosecutor himself who
had to be informed. The choices an aggrieved person has in selecting legal counsel have also
been extended (section 138 (3), section 142 (1) StPO).
Example: The victim of a criminal offence may now be represented by a trusted person withknowledge of the law, who does not necessarily need to be admitted as an attorney. This
representative must, however, be approved by the court beforehand (section 138 (2) StPO).

25

cf. Hilger in Löwe/Rosenberg, StPO, 25th edition, section 395, margin number 18

23

3. Rules on Legal Aid for Victims
Also of great practical significance, especially for joining the public prosecution as private
accessory prosecutor, are the provisions of section 397a StPO. Section 397a (1) StPO
stipulates the cases in which an attorney is to be appointed free of charge as counsel to theprivate accessory prosecutor. Section 397a (2) StPO contains the criteria under which legal
aid must be provided to the private accessory prosecutor. The provisions of section 397a StPO
also apply for the counsel of aggrieved persons when these persons are entitled to join the
public prosecution as private accessory prosecutor, but do not wish to join the proceedings assuch.

(i) The situation before the Second Victims’ Rights Reform Act entered into force
Until the Second Victims’ Rights Reform Act entered into force, the provisions of
the former Act were relatively confusing due to the many references; likewise, the Act
did not seem entirely consistent.

(ii) Changes introduced by the Second Victims’ Rights Reform Act
With the Second Victims’ Rights Reform Act the provisions of section 397a StPO
were redrafted. In particular, Paragraphs 1 and 2 are of great practical significance.
(a) Redrafting of section 397a (1) StPO
The list of criminal offences under section 397a (1) StPO concerning theappointment of a counsel for particularly vulnerable private accessory
prosecutors has been made more understandable and has been extended as
appropriate.

24

Numbers 1 and 2 list criminal offences for which a so-called “victim’s
attorney” (Opferanwalt) must be appointed for the adult victim/his
family without further requirements and regardless of the victim’s/his
family’s financial condition. These crimes include rape or trafficking inhuman beings for the purpose of sexual exploitation (number 1) andmurder/attempted murder (number 2).

According to the new section 397a (1) number 3 StPO, if they are
already affected or are expected to be affected by the particularly
serious consequences of an offence entailing serious bodily or mental
harm, the victims of other serious crimes of aggression are now given
the option as private accessory prosecutor of being assigned a victim’s
attorney irrespective of the conditions governing legal aid. This does
not only cover serious bodily harm, as was the case previously. The
crimes of kidnap, abduction, the abduction of minors, deprivation ofliberty, kidnapping for extortion and hostage taking are now included as
well.



In section 397a (1) number 4 StPO, the list of offences has been
extended for which it is stipulated that a victim’s attorney has to beappointed free of charge for children, youths and victims who cannot
themselves safeguard their interests sufficiently, or cannot reasonably
be expected to do so. The provision has now been expanded i.e. toinclude cases of abandonment (section 221 StGB) as well as abuse of aposition of trust (section 225 StGB), offences against personal freedom
as human trafficking or taking hostages and stalking (section 232
through 235 StGB, section 238 through 239 StGB), especially serious

25

(b) Reform of section 397a (2) StPO
The provisions of section 397a (2) StPO, stipulating the conditions whichgovern the award of legal aid to private accessory prosecutors, were redrafted
as well.
In line with the justified demands of victim support organisations, thecriterion “if the legal and factual situation is complex” was removed. This
stipulation corresponded to the wording in section 140 (2) StPO, whichgoverns the conditions governing the defence required for the accused. A legal
and factual situation is considered complex if, from the point of view of theprivate accessory prosecutor, the facts of the case are extensive, intricate ordifficult to clarify; if it appears necessary to bring in expert opinion; if special
knowledge is required to assess the facts; if the private accessory prosecutor
needs

to

submitmotionsfortheadmissionofevidence,orifcomplicated/contentious legal issues are to be decided (e.g. measures that
affect the personal life of the private accessory prosecutor; excluding the public,26

or removing the accused). In practice, however, this stipulation led to
unfairness. 26
This is because, even in straightforward cases where the private accessory
prosecutor is equally unable to safeguard his own interests sufficiently, or
cannot reasonably be expected to do so – for example, if he has to deal with theserious consequences of an offence – a right to legal aid should be granted if
needed. The current version of these regulations is now based on nothing otherthan whether the private accessory prosecutor is in the position to safeguard his
interests and whether this can reasonably be expected of him.
Nevertheless, according to the new legislation, those private accessory
prosecutors who need it will as a general rule still enjoy a right to legal aid
where the legal and factual situation is complex, since without the assistance ofan attorney in these cases they would likely be unable to safeguard theirinterests to a sufficient degree.

D.

Strengthening the Rights of Child and Juvenile Victims and Witnesses
For children and juveniles who have fallen victim to a criminal offence or who must testify

as witnesses, the situation in criminal proceedings is often particularly difficult. They are stillin their development stage, which means that extra care must be taken to shield them fromstress. The StPO therefore contains a catalogue of provisions to protect juvenile victims andwitnesses. In contrast to the situation with adults, these include, for example, extended powers
to institute audio-visual recordings for witnesses (section 58a (1) second sentence, number 1;
section 255a (2) StPO), and the extended right to exclude the accused and the general public(section 247 second sentence StPO; section 172 number 4 of the Courts Constitution Act,
26

Ibid, section 397a, margin number 927GVG). Moreover, a multitude of special provisions that serve to protect children and juveniles
are in place in the guidelines to be followed by public prosecutors. 27 Thus, according to
number 19, paragraph 1 of the Guidelines for Criminal Proceedings and Proceedings to
Impose a Regulatory Fine (Richtlinien für das Strafverfahren und das Bußgeldverfahren,
RiStBV), multiple examinations of children and youths prior to the main hearing are to be
avoided wherever possible due to the associated mental strain put upon these witnesses.
According to number 135, paragraph 3 RiStBV, children and juveniles are preferably to be
examined prior to other witnesses, and are to be supervised and cared for in the waiting rooms
to the extent possible. For sex crimes, number 222, paragraph 1 RiStBV stipulates that for theexamination of children, an expert is to be brought in with special knowledge and experiencein the area of child psychology. In the event that a person accused of a sexual offence wholives in the same household as, or is able to exert a direct influence on the victim is released,
number 221 paragraph 2 RiStBV stipulates that the youth welfare office (Jugendamt) is to be
informed immediately so that the measures necessary to protect the victim can be taken.
Until now, however, this protection was only stipulated in Germany for juveniles under 16.
With the Second Victims’ Rights Reform Act, the cut-off age in the StPO and GVG has beenraised to 18 years in line with those limits specified in various international agreements suchas the United Nations Convention on the Rights of the Child 28 or the EU Charter ofFundamental Rights. 29

E.

Strengthening the Rights of Witnesses

27

Practical suggestions in Blumenstein, Kindliche Opferzeugen im Strafprozess – unkindgemäße Schicksale und
Verfahrensweisen, Journal of the Deutsche Vereinigung für Jugendgerichte und Jugendgerichtshilfen, 28, 2002;
Kilian, Opferschutz und Wahrheitsfindung – ein Widerspruch?, Deutsche Richterzeitung, 256, 1999
28
Federal Law Gazette, 1992, Part II, p. 990
29
Official Journal of the European Communities, 18.12.2000, C 364/1

28

The victims of criminal offences must usually testify as witnesses in criminal proceedings
as well. They, like all witnesses in criminal proceedings, attend to their civic duty to appear
for examination and to testify truthfully. This testimony is usually indispensible forascertaining the truth. The Second Victims’ Rights Reform Act takes account of the important
position that witnesses hold in criminal proceedings by paying even greater attention to theirpersonal rights than has been the case so far.

1. Regulating the Duty to act as Witness
To start with, for reasons of legal clarity and legal security, the generally recognised dutyof a witness to testify in court and before public prosecutors was laid down in the law (section
48 (1) StPO).

2. Legal Counsel
Section 68b (1) StPO provides a statutory basis for the rule that witnesses may call in theassistance of an attorney in all examinations, so long as this does not jeopardise the purpose of
the investigation. Beforehand, this right was already guaranteed in Germany on the basis of adecision of the Federal Constitutional Court. 30 But the statute now explicitly clarifies how theright is to be enforced, as well as specifying the grounds for exclusion, based above all on
whether the presence of an attorney during the examination would jeopardise the purpose of
the investigation.

(i) Grounds for exclusion
An attorney can be excluded from an examination if certain facts justify theassumption that his presence would “not merely insignificantly” jeopardise the orderly
taking of evidence.
30

See for example the decisions of the Federal Constitutional Court, volume 38, page 105

29

Example: A witness is examined in a fraud case and wishes to bring in an attorney as
counsel during the examination. This attorney is suspected of participation in theunderlying offence on the basis of certain facts. He now can be excluded as counsel
from the witness examination.

(ii) Legal counsel for particularly vulnerable witnesses
In section 68b (2) StPO the rules governing the assignment of an attorney to assist
particularly vulnerable witnesses have been simplified. The only deciding factor now
is whether or not particular circumstances prevent witnesses from being able toexercise their rights themselves during examination. If so, they are assigned an
attorney for the duration of the examination.

Example: A young woman is repeatedly beaten and abused by her husband. Becauseof what has happened she is frightened and under heavy psychological strain. Due toher psychological state, there are concerns that she will not be able to exercise her
rights; e.g. the right to refuse to give testimony and the right to object to questions, orthat she will not be able to voice her desire to exclude the general public from thecourt hearing. It might make sense in this case to assign the young woman an attorney
just for the examination, in order to help and advise her regarding her rights.

(iii) Court decisions on negative decisions by the public prosecution office
Concomitant to this, the powers of witnesses to bring about a court decision
regarding negative decisions by the public prosecution office pursuant to section 68b(1) StPO have been regulated. (Section 161a (3) StPO alongside various subsequentchanges.)30

Example: A witness whose counsel has been excluded from the examination by adecision of the public prosecution office can apply for a court decision at the court
which is responsible for investigating the facts of the case (so-called examining judge).

III. CONCLUSION
The constitutional order of the German Basic Law (Grundgesetz) also obliges state organs
to stand in defence of the victims of criminal offences and to respect their needs. This isparticularly relevant when children and juveniles fall victim to crime. As the weakest
members of society, they require special protection. It also applies for particularly vulnerable
adult victims of criminal offences, such as those who are aggrieved as the result of sex crimes
or serious violent crime. In providing this protection, lawmakers face the challenge ofachieving the best possible protection for the victims of crime without obstructing the justified
defence rights of the accused in doing so. Any measures to protect victims must be
fundamentally compatible with the purposes of criminal proceedings, since state organs are
obliged first and foremost to investigate criminal offences and to establish guilt or innocenceon the part of the accused in fair proceedings conducted in compliance with the rule of law.
Under this premise the aim should be to take the most concrete measures possible: above all,the victims of criminal offences need the best possible protection in practice. With the Second
Victims’ Rights Reform Act, lawmakers have faced these challenges once again. Specialists
in the field and victim support organisations have already voiced their opinion that thesechallenges have been successfully met.

31