RESOURCE MATERIAL SERIES No. 56

ANCILLARY (ADHESION) PROCEEDINGS IN GERMANY AS
SHAPED BY THE FIRST VICTIM PROTECTION LAW:AN ATTEMPT TO TAKE STOCK
Eberhard Siegismund*
I. INTRODUCTION
Even in the 1970s, an aggrieved person
was still treated as a ‘’forgotten man’’;1 inscientific debate the victim of a crime wasa mere shadow. In the 1980s that situationc h a n g e d f u n d a m e n t a l l y. S p e c i f i camendments were rapidly made to thelegislation of the time, which I shall lookat later, and these changes are particularly
remarkable because at the time no real“pressure group’’ existed to push forchange.2
What victim protection in criminal
proceedings basically aims to do is to stopa person aggrieved because of a criminal
act from being a mere object of theproceedings, whose main function it is tobe a witness in court; s/he should be madea player in the proceedings with rights
which s/he can assert there. Victim
protection also aims to deflect the focus of
the proceedings from the accused ensuring
that, while the proceedings stillconcentrate on establishing the accused’s
guilt, the proceedings also take on board
the interests of the aggrieved person andthe relationship between them and theaccused.3
The concept of victim protection derives
from the principle of the social state.4 The
state complies with that principle only if it
ensures social justice in legislation andgovernment, and helps the weakermembers of society to assert their* Deputy Director General, Judicial System Division,Bonn, Germany.

102

legitimate rights. It is quite obvious thatthe victims of crime are often weakermembers of society and that they need help,
emotional care, social stability and, last but
not least, financial support.5
Finally, it should not be forgotten that
improved victim protection can also
contribute to ensuring effective criminal
prosecution: this can be seen from the factthat in some 90% of cases, crimes are solved
as a result of information provided by
victims. 6 Consequently, if the judicial
authorities take better care of victims ofcrime, this can have positive repercussions
on people’s feeling of well-being. Hence, inthis way victim protection can help tostrengthen the legal order.7
The Declaration of Basic Principles ofJustice for Victims of Crime and Abuse ofPower adopted by the General Assemblyof the United Nations on 29 November 1985
shows that this rediscovery of the aggrieved
person or the victim of crime is not merely
1

Cf. Weigend, ZStW 96 (1984, p.761).
Cf. Riess, Jura 1987, p281, p.283.
3 Cf. Jung, ZStW 93 (1981, p.1147).
4 Cf. inter alia Compendium of Judgments of theFederal Constitutional Court 39, 1 (p.47 f.); 88, 203(p.257 f.)
5 Cf. Goll, ZRP 1988, p.14.
6 Cf. Kirchhoff, in: Das Opfer und die
Kriminalitätsbekämpfung [Victims and the fightagainst crime] published by the Federal Criminal
Investigation Office, 1996, p.48; Cf. also Koch/
Poerting/Störzer, Kriminalstatistik 1996 [Criminal
statistics for 1996], p.2 f.
7 Cf. Goll, op. cit.
2

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a national phenomenon but aninternational one. As you are aware, theDeclaration contains a range ofrecommendations intended to assist
governments in the international
community to help and assist the victims
of crime and abuse of power of various
levels.
As I shall tell you about ancillary
proceedings as regulated by the German
Code of Criminal Procedure, which governs
compensation for aggrieved parties incriminal proceedings, it appears vital tostart by quoting the basic provision of theaforementioned Declaration, which deals
with asserting claims for damages:“8. Offenders or third parties
responsible for their behaviour should,
where appropriate, make fairrestitution to victims, their families ordependants. Such restitution should
include the return of property or
payment for the harm or loss suffered,reimbursement of expenses incurred asa result of the victimization, theprovision of services and the restorationof rights.’’
Later on we shall be looking at whether- and to what extent - German procedurallaw, as improved by the Victim Protection
Law of 18 December 1986, takes accunt ofthese maxims.
II. ANCILLARY PROCEEDINGS IN
PRACTICE
A. Basic Aims of Criminal
Proceedings Under German Law
Criminal proceedings are not of an
adversarial nature in the same way as civil
proceedings, which are characterised by theparties freedom to shape them.8 The aimof criminal proceedings is to investigate thesubstantive truth behind the criminal act
and to punish the perpetrator of the act.9
The traditional form of criminal
proceedings under English law is that ofan adversarial proceeding with the resultthat representatives of the prosecuting
body and the defendant or their legal
counsel shape the proceedings: if theprosecutor withdraws the charges or theaccused confesses their guilt they can
influence the course of the proceedings. In
this way the judge is merely a neutral
arbiter who delivers judgment on the basisof incriminating or exonerating evidencecollected by the “parties’’.
The duty incumbent on German criminal
judges to establish the substantive truth
rather than formal truth also changes theroles in another way: the judge is masterof the proceedings; s/he has to know what
is in the case files, s/he does not merely
examine the witnesses but is required, on
their own responsibility, to gather all
information which might incriminate orexonerate the accused. The duty to clarify
the facts of the case, which is enshrined in
the Code of Criminal Procedure, canrequire that the court collects evidence
which exonerates the accused even against
their will or that it clarifies incriminating
facts, even if the public prosecutor showsno interest in them. Even if the accusedand the public prosecutor both agree toforgo the further collection of evidence, thatis not sufficient to release the court fromits duty to clarify the facts of the case.
The principle that the court must clarify
the facts of the case renders ancillary
proceedings, which are part of the criminal
proceedings, particularly attractive to
victims of crime: they do not have to
produce evidence themselves but can leaveit to the public prosecutor and the court to9

8

Cf. Federal Court of Justice, NJW 1960, p.2346.

Cf. KK Pfeiffer, Fourth Edition, Introduction,
margin reference 2, with further references.

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RESOURCE MATERIAL SERIES No. 56
bring charges against the accused.
Ancillary proceedings are based on thenotion that proceedings relating to a single
set of circumstances should be handled
together. So, where claims to substantive
or symbolic compensation arise from acriminal act - be it fraud, embezzlement,even assault or slander - then there is muchto be said for dealing with the aggrieved
person’s claim to damage in the criminal
proceedings rather than waiting for asubsequent civil action to be brought,
thereby avoiding duplication of efforts andalso the possibility of contradictory judicial
decisions.
The decision on the application is
actually taken during the main proceeding,not, for example, at a separate, later
hearing. To that extent, the term “ancillary
proceeding’’ is in fact a misnomer. As
already said, the principles of criminal
proceedings - i.e. the inquisitorial maxims- apply to the proceedings. This means thatthe court must clarify the facts of the caseof its own motion and is hence also notbound by the procedural declarations of theaccused. Consequently there is no
judgment of admission of the sort found insection 307 of the Code of Civil Procedure.10
The Victim Protection Law pursues theaim of improving reparation for damages
within the criminal proceeding, primarily
by aiming to broaden use of ancillary
proceedings. This is done in the followingway.
According to the revised version ofsection 403, subsection 1, of the Code of
Criminal Procedure, in proceedings before
the Local Court, the aggrieved person may,without the consent of the accused, also
assert a property claim arising out of thecriminal offence which exceeds the
maximum value applicable to litigation
before the Local Courts (previously DM
5,000, now DM 10,000).
This is important because some 99% of
criminal proceedings at first instance areheld before the Local Courts. 11 In
proceedings before the Local Courts, it ispossible to assert property claims (e.g for
return of stolen assets or for pecuniarycompensation - mainly reparation for pain
and suffering - or claims for reimbursementof funeral expenses or claims resulting fromunjustified enrichment) irrespective of thevalue of the object of litigation.
An amendment to section 406,
subsection 1; 2, subsection 3, of the Codeof Criminal Procedure has made it possible- as proposed in the government’s draft
legislation12 - to produce judgments on the
grounds of the claim or on a portion thereof.
In the draft it was assumed that a decisionon the grounds of the claim (which would
be easier to clarify using the resources of
the criminal proceedings) could in the
future be taken in the ancillary
proceedings. The level of compensation which, as a point of detail, is irrelevant tothe criminal proceedings, and to establish
would delay clarification of the criminal
proceedings - could, if necessary, be dealt
with in later civil proceedings. In this way,so the ‘explanatory’ notes, it would bepossible to avoid taking evidence on the
grounds of the claim more than once.
Moreover, in many cases it would make itpossible to do without further acrimonious
discussion as to the level of compensation.13
Where, however, a decision has beentaken only on the grounds of the claim, the11 Cf. Riess, Jura 1997, p.281, p.289.
12 C f .

10 BGHSt 37, 263, as confirmed by Wendisch, JR 1991,

p.297.

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E x p l a n a to ry co mme n ts i n B u n d est a g
Publication 10/5305, p.16.
13 Cf. Bundestag Publication, op. cit., p.15.

112TH INTERNATIONAL TRAINING COURSE
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hearing to decide the amount (level of theclaim) takes place, upon application, before
a competent civil court.14 The victim does
not require legal assistance to do this (seesection 404, subsection 1).
According to section 404, subsection 5,of the Code of Criminal Procedure, as
amended by the Victim Protection Law,15
the applicant may receive legal aid for the
ancillary proceeding under the sameprovisions as in civil litigation.16 The effectof this is as follows.
If the victim is unable to meet the costsof the litigation (or part of the costs, or in
instalments), and if the case shows
prospects of success (see sections 119 to
122, Code of Civil Procedure), the criminal
court shall award legal aid once publiccharges have been brought. The decision
is not subject to challenge by the otherparticipants in the proceedings.
Where the court has convicted theaccused and held that the victim is to beindemnified, the following problem in notuncommon. As a conviction means that theoffender must also pay a fine and court
costs, s/he will do all they can to avoid asubstitute prison term (applicable if theydefaulted) by using their available assets
primarily to pay off the fine (and the costs)
before indemnifying the aggrieved person.17
The new rule introduced into the second
sentence of section 459a, subsection 1, of
the Code of Criminal Procedure is intended
to prevent that from happening and to
14 Cf. section 406, subsection 3, third sentence, Codeof Criminal Procedure, in conjunction with section
304, subsection 2, Code of Civil Procedure.
15 Version pursuant to the Bundesrat proposal, cf.
Bundestag Publication 10/5305, page 15, 29 no. 11,
page 33.
16 Sections 114 f., Code of Civil Procedure.
17 Cf. Riess, Jura 1987, 281, 289; Riess/Hilger, NStZ
1987, 145, 157.

promote indemnification for damage by theoffender. In effect, the execution agency
may facilitate payment of costs or a fine(by delaying payment or the granting of
payment by instalments) if, without sucheasier payment terms, the indemnification
would be consiberably endangered. Thismight be the case even if the offender wereable to pay the fine promptly but, given the
primacy of the fine, s/he would
subsequently be compensating the victim
only much later.18
In summary, it can be seen that the law
offers victims of crime the following options
for initiating ancillary proceedings:(i) Ancillary proceedings allow for thecriminal and civil-law consequencesof a criminal offence to be dealt within a single set of proceedings. Hencethey would allow the victim to assert
their rights quickly and simply.
(ii) Normally speaking, even lawyers
should be happy about the existenceof these proceedings: they spare thejudge and legal counsel from going
through civil proceedings; they
reduce the time spent in court
because there is no need to bring thecase before several different courts
and so judicial decisions are not likely
to become contradictory.
The interests of the aggrieved person or
their heirs are taken on board in a numberof ways:(i) S/he is supposed to be informed of
their option to assert a claim, evenin criminal proceedings, at an earlystage (section 403, subsection 2, Codeof Criminal Procedure).
(ii) Claims must not take any particular
18 Cf. Riess/ Hilger, NStZ, op.cit.

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RESOURCE MATERIAL SERIES No. 56
form - it can be made (even orally) at
the main hearing before thebeginning of the closing arguments(first sentence of section 404,
subsection 1, Code of Criminal
Procedure). S/he does not require alawyer to file the claim.
(iii)If the victim is unable to meet thecosts - in part or in instalments - ofbringing the case, and if the case has
sufficient prospects of success, theyreceive legal aid and a legal
representative is appointed.
(iv) The victim has the right to be present
and to be heard. As a participant in
the proceedings, s/he must be heard
at the main hearing.19 The victim
may apply for evidence to be taken,20
has the right to ask questions
pursuant to section 240 of the Codeof Criminal Procedure, and isauthorised under section 238,
subsection 2, Code of Criminal
Procedure, to challenge orders of thepresiding judge concerning the way
in which the hearing is conducted.
Finally, in line with section 257, Codeof Criminal Procedure, the victim has
the right to make statements after
the defendant has been examined andafter each individual taking ofevidence. In the main hearing,
victims enjoy these rights, however,
only insofar as they are relevant tothe civil claim. 21 Finally, and ofparticular significance, is the right toconsult the case files, which all
aggrieved persons may assert
through their lawyer.

proceedings is particularly
advantageous for the aggrieved party
as it means that the principles of thecriminal proceedings are applicable.
Hence, unlike in civil proceedings, thecourt is required to establish the factsof the case (section 244, subsection
2, Code of Criminal Procedure).
Consequently it must, of its own
motion, extend the taking of evidence
to all facts and evidence which areimportant for the decision. Unlike incivil proceedings, the aggrieved party
is therefore not required to produce
evidence; it can leave it to the publicprosecutor and the court to establish
the facts. However, the court’s duty
to establish the facts is limited bysection 405 of the Code of Criminal
Procedure: if an examination of thefacts would protract the criminal
proceedings disproportionately,
section 405 requires the court toabstain from a decision.22 I shall belooking at this provision in more
depth later.
(vi) Finally, the aggrieved party still has
the possibility of asserting before thecivil courts claims asserted
unsuccessfully before the criminal
courts. In principle, therefore, theaggrieved party can only emerge fromancillary proceedings as a winner, nota loser.23
Thus, at first sight, it would appear thatthe catalogue of rights and entitlements
enjoyed by the victims of crime takes full
22 Cf. LR Hilger, 25th Edition, section 405, margin

reference 11, with further references.

(v) T h e f a c t t h a t t h e a n c i l l a r y
proceedings are part of the criminal
19 Cf. LR Hilger, op. cit.
20 Federal Court of Justice, NJW 1956, p.1767.
21 Cf. LR Hilger, op. cit.

106

23 Cf. Riess, Die Rechtsstellung des Verletzten im

Strafverfahren, Gutachten für den 55. Deutschen
Juristentag [Legal status of the aggrieved party incriminal proceedings; expert report to the 55th
Conference of German Lawyers], Volume 1, PartC, margin reference 42.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
account of the basic principles of justice forvictims of crime and abuse of power
adopted by the United Nations’ General
Assembly.
However, things look different inpractice. Only a couple of weeks after theVictim Protection Law came into force, thisattempt by Parliament to increase theaggrieved party’s chance of obtaining
reparation for damage suffered within
ancillary proceedings was criticallyappraised in the literature. 24 The
amendments which it introduced to the law
were pejoratively described as “cosmetic’’and there was said to be much doubt as totheir ability to incriease the “enthusiasm’’felt for ancillary proceedings in practice.25
Regret was expressed that no attempt
had been made to deprive the courts of thepossibility of abstaining from a decision on
the substitute claim within the frameworkof the second sentence of section 405.26 The
latter provision allows the judge to abstain
from a decision “in the event the motion
cannot be properly settled in a criminal
proceeding, in particular, if its examination
would protract the proceedings or if the
motion is not permissible’’. This was afacility of which the courts had made all
too frequent use for a substantial period oftime.
Criticism was also voiced that the law
had failed to resolve the tug of war between
the state’s action to enforce pecuniary fines
and the legitimate indemnity claims of theaggrieved party in a way which favoured
the aggrieved party. This belies the factthat in many cases it becomes impossible
to assert the aggrieved party’s indemnity

claims because the offender simply does nothave sufficient resources. As alreadymentioned, in the face of a substitute prison
sentence, the offender will first attempt to
pay a fine. The solution identified by
Parliament, i.e, to facilitate payment by theoffender under the second sentence ofsection 459a, subsection 1 of the Code of
Criminal Procedure, if, without such
facility, the indemnification by theconvicted person for damage caused as aresult of the offence would be considerably
endangered, was described as anunsatisfactory minimum and a “faltering
first step’’.27
From the victim’s point of view, it would
certainly have been more satisfactory to
refrain from collecting the fine if theoffender complied with a duty to makereparation for damages or to satisfy the
aggrieved party’s claim from the proceeds
o f t h e f i n e . 28 A s t h i s m a n n e r o fcompensating victims would, however,
have caused the state coffers to sufferconsiderable financial loss, the chance ofpushing it through were rather slim fromthe outset.
As was to be feared, given the criticisms
expressed in the literature, theimprovement which Parliament expected
to see in the settlement of victims’ claims
for damages from criminal acts, and the
expected extension in the use of ancillary
proceedings, 29 failed to materialise.
Despite the fact that ancillary proceedings
have formed part of the criminal
proceedings since as far back as 1943 andthat they are familiar to all lawyers, theiruse continues to be infrequent as thefollowing figures illustrate.

24 Cf. Riess, Jura 1987, p.281, p.290; Weigend, NJW

1987, p.1170, p.1176.

27 Cf. Weigend, op. cit., Riess, Jura 1987, op. cit.

25 Cf. Jung, JuS 1987, p.159; Weigend, NJW 1987,

28 Cf. Wiegend, op. cit., with further references, cf.

p.1170, p.1176.
26 Cf. Weigend, op. cit.

29 Cf. Bundestag Publication 10/5305, p.8.

Weigend, ZStW 96 (1984) p.761, p.793.

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RESOURCE MATERIAL SERIES No. 56
In 1997 Germany’s Local Courts handed
down 2,951 judgments in ancillary
proceedings. Of these, 2,840 were final
judgments and 111 judgments on the
grounds;30 142 judgments were handed
down in ancillary proceedings by firstinstance Regional Courts - 119 as final
judgments and 23 as judgments on the
grounds. 31 By contrast, over the same
period the Local Courts handed down atotal of 395,179 32 judgments and theRegional Courts handed down 10,823 33
judgments overall. These figures show how
seldom ancillary proceedings are
conducted; as a proportion of all judgments
delivered, ancillary proceedings made up
only about 1% of proceedings before theRegional Courts and 0.75% of proceedings
at the Local Courts.

but more like 15 to 25%.
The reasons why people are less thankeen to use ancillary proceedings inpractice, than Parliament would havewished are well known. A wide-ranging
study of legal trends carried out in the early
1990s demonstrated 36 that there was“broad’’ rejection of ancillary proceedings
by judges, public prosecutors and legal
professionals overall and proved thataggrieved persons are generally unfamiliar
with this type of proceeding.37 The low
practical significance of ancillary
proceedings in also decried by Germany’s
European neighbours, insofar as the legal
prerequisites are comparable there.38

That said, it has been estimated in somecompetent studies that it would have beenpossible to bring ancillary proceedings injust about 70% of all cases in which a
judgment was handed down.34 In about
65% of those possible cases, reparation had
yet to be made for damage caused. Given
that in about a quarter of all such cases a
civil action had already been brought or alawyer had already issued a claim for theamount at issue, it can be assumed that
there was a genuine need for ancillary
proceedings to be conducted in about 35%of the eligible cases. 35 Had, therefore,
ancillary proceedings been used asenvisaged by Parliament, the proportion
would not have been around 1% or 0.75%

The reason given in the study for why
Germany’s judges, public prosecutors andlegal professionals tend to shy away fromancillary proceedings is that they consider
them to be “anathema to criminal
proceedings’’. 39 The reason for this ispossibly that the strict separation between
criminal and civil law instilled during legal
studies, and the mental distinction
between punishment and reparation, run
deep; also criminal judges might fear thatthey will be put under pressure andoverburdened by having to deal withcomplex issues of civil law.40 The reason
for this may well be that the conditions
attaching to culpability under the criminal
law and those applicable to claims fordamages under civil law are too dissimilarin German law: the causality obtaining

30 Federal Statistical Office, Wiesbaden, Criminal

36 Cf.

Courts, 1997, working documents, p.12.
31 Federal Statistical Office, Wiesbaden, Criminal
Courts, 1997, working documents, p.46.
32 Federal Statistical Office, Wiesbaden, Criminal
Courts, 1997, working documents, p.16.
33 Federal Statistical Office, Wiesbaden, Criminal
Courts, 1997, working documents, p.50.
34 Cf. Kaiser, op. cit., p. 276.
35 Cf. Kaiser, op. cit., p. 276.

108

Kaiser, Die Stellung des Verletzten im
Strafverfahren, Implementation und Evaluation
des Opferschutzgesetzes [Status of the aggrieved
person in criminal proceedings, implementationand evaluation of the Victim Protection Law],
Freiburg/Breisgau, 1992.
37 Cf. op. cit., p.278.
38 Cf. Kintzi, DriZ 1998, p.65, p.72.
39 Op. cit., p.278.
40 Cf. Kintzi, op. cit.

112TH INTERNATIONAL TRAINING COURSE
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under the criminal law is one ofequivalence, under civil law it is one ofadequacy; liability under criminal law isrestricted to actual guilt, under civil law
exposure to risk is also taken into account;
finally, there are major differences as to the
distribution of the burden of proof and the
duty to tell the truth (the defendant has
the right to lie whereas respondents (undercivil law) and witnesses are required to tell
the truth41).
Moreover, the case-law of the Federal
Court of Justice, which increasingly feels
bound to reverse erroneous decisions inancillary proceedings, is not apt toencourage the judiciary to make more useof this special type of proceeding.42 Thisshows that, from the viewpoint of theFederal Court of Justice, the grounds thatjudges take for establishing compensation
for pain and suffering in ancillary
proceedings are not infrequently erroneous.
Often there is insufficient detail on judicial
findings on the facts and the reasoning
used. If such shortcomings lead tojudgments being reversed, the judge
concerned is hardly likely to continue
wanting to make decisions in ancillary
proceedings.
However, not only legal difficulties cause
lawyers to be shy of ancillary proceedings.
Many people support claims that ancillary
proceedings place an unnecessary burden
on criminal judges. It is claimed that a
considerable amount of additional work canstem from the ancillary proceedings. 43
41 Cf. LR Hilger, op. cit., introductory comment tosection 403, margin reference 9.
42 Cf. Kintzi, op. cit., with reference to the decisionsof 27 March 1987 (2 StR 106/87); 9 August 1999 (4StR 342/88); 25 August 1989 (3 StR 159/89); 13
December 1990 (4 StR 519/90); 14 August 1991 (3StR 37/91); 30 October 1992 (3 StR 478/92); 30 April
1993 (3 StR 169/93); 9 June 1993 (2 StR 232/93).
43 Cf. Kaiser, op. cit., p.265.

First and foremost, judges and lawyers feelthat the procedural delays resulting fromthe taking of additional evidence areconsiderable.44 All professional groups
agree that ancillary proceedings are theone source of rights for aggrieved persons
causing the longest delays in criminal
proceedings.45
The view of judges, public prosecutors
and lawyers are in stark contradiction to
the results of surveys of aggrieved parties:
these surveys generally revealed a great
deal of interest in active participation incriminal proceedings. 96.9% of all victims
of crime favoured the possibility of dealing
with the question of damages as part of thecriminal proceedings.46
It must therefore be concluded thatancillary proceedings, which were createdmore than fifty years ago to reflect theinterest of victims of crime and which havebeen improved by a number of provisions
in the Victim Protection Law, areconsidered by those victims of crime toreflect their concerns, yet they have found
few friends in the judiciary.
B. What Needs to be Done?
On this point, the Grand Criminal Law
Commission of the Association of German
Judges was appointed in the mid-1990s by
the Federal Ministry of Justice to produce
an expert report on improving victim
protection in criminal proceedings. It took
the view that (further) attempts at
legislating would have no real prospect ofbreathing new life into ancillary
proceedings.47 They conceded that thought
should be given to a mandatory provision
requiring, upon application of the victim,
the civil law aspects of establishing
44 Cf. Kaiser, op. cit.
45 Cf. Kaiser, op. cit.
46 Cf. Kaiser, op. cit. p.276.
47 Cf. Kaiser, op. cit.

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RESOURCE MATERIAL SERIES No. 56
damages always to form part of thecriminal proceedings. Yet, as not all
primary claims for damages under civil law
are suitable for being dealt with in criminal
proceedings, a statutory provision of thattype could not be implemented in the faceof opposition from practitioners. This
would mean that ancillary proceedings willprobably continue to be of minimal
significance.48
Against the background of these - in myview, convincing - arguments, it is no
surprise that current legislative work by
the Länder aimed at breathing new life into
ancillary proceedings (ancillary settlement
before the courts between the victim of thecrime and the accused) have necessarily
been doomed to failure.49
It continues to be doubtful whether
reorganising ancillary proceedings more to
the benefit of victims can bring about theirrenaissance. It would seem to go without
saying that the judicial authorities must
adopt a less reticent stance here if, incriminal proceedings, large numbers ofvictims of a crime can associate and press
for a decision in ancillary proceedings. 50
Thought could be given to reducing thealready low threshold for access to ancillary
proceedings further, so that when theparties concerned - who, in any case,contribute to about 90% in solving crime lay a criminal information before the police,
they could be given a form which they could
complete within a few minutes,
constituting a full and proper application
for the opening of ancillary proceedings.51
In so doing, it could be possible to assist
the parties by providing standard text,
which applicants would have only to tick48 Cf. Kintzi, op. cit., p.72.
49 Cf, Bundesrat Publications, 50/95; 70/96; Bundestagor supplement, for run-of-the-mill casessuch as reparation for damage,compensation for pain and suffering, andthe return of specific objects.
Even if such attempts at revitalisingwhat might almost be considered “dead’’law appear wholly praiseworthy, theycannot prevent judges, where necessary,from pulling on the handbrake by applying
section 405 of the Code of Criminal
procedure and abstaining from a decsion
because dealing with the application for
ancillary proceedings might considerably
protract the criminal proceedings, e.g.
because a motion by the victim for further
clarification of the events at issue mightcause new witnesses to be heard.52
In Germany, practice has shown thateven organisational improvements (ortraining and increased publicity) have been
unable to increase the use of ancillary
proceedings. This is borne out by the factthat the above-mentioned proposals, whichwere tabled in the summer of 1996, havefailed to have a positive effect on thenumbers of cases involving ancillary
proceedings. In the year thereafter, theLocal Courts handed down very nearly four
hundred fewer judgments in ancillary
proceedings than in 1995; before theRegional Courts the number of judgements
was reduced from 186 to 142. There canbe no clearer proof of a trend away fromancillary proceedings in practice.
III. USING VICTIM-OFFENDERMEDIATION TO TAKE ACCOUNTOF THE VICTIM’S INTERESTS
While my comments might have shownthat Parliament’s attempts to improve thelot of victims of crime within the ancillary
proceedings have not been entirely

Publication 13/6899.
50 Cf. here Rössner/Klaus, NJ 1996, p.288, p.292.
51 Cf. Rössner/Klaus, op. cit., p.293.

110

52 Cf. LR Hilger, op. cit., section 405, margin reference

11, with numerous references.

112TH INTERNATIONAL TRAINING COURSE
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successful, it should however be pointed outthat the Victim Protection Law has set an
important signal for the (further) extensionof victim-offender mediation in Germany.
Among the detailed list of factors listed
in section 46, subsection 2, of the German
Criminal Code, which help exonerate theoffender when criminal tariffs arecalculated, an “attempt by the offender toarrive at a settlement with the aggrievedparty’’ was included almost as a flag for
future legislative action.53 Its inclusion isintended to indicate that when fixing
punishment, the courts should have special
regard to an attempt by the offender tosatisfy the aggrieved party’s claim forreparation in ways other than by material
reparation for damage. This provides an
incentive for the accused to take on board
the victim’s interests - where possible
before the hearing takes plase - to enable
the court to impose a more lenient
sentence.
That such facilities to improve thepossibility of arriving at a settlement
between perpetrator and victim were
initially made practically possible, andlater enshrined, in normative texts is oneof the most significant criminal policy
developments in Germany over the past
years. In this connection, projects designed
to allow for a settlement between
perpetrators and victims were first set up
under the criminal law relating to young
people. Such projects under general law
were included later. Their aim is to provide
help for victims in coming to terms withthe consequences of a criminal act. Under
the supervision of a third party not
involved in the conflict, a speciallyregulated mediation process aims toachieve a comprehensive settlement
between perpetrator and victim. The
53 Cf. here Riess, Jura 1987, p.281, p.290; Weigend,

NJW 1987, p.1170, p.1176.

settlement is centred upon an agreement
arrived at during a mediation session bywhich the perpetrator commits themself tomake good the damage caused. Given the
manifold difficulties which suchagreements may encompass, they areconcluded only under the supervision ofrecognised experts (psychologists, socialeducation experts, social workers).
The settlement focuses not only on
substantive reparations but, as far as
possible, also aims to achieve genuine
reconciliation between perpetrator andvictim. This is why reparations are not
restricted to replacing material damage;other - non-material acts - can also be
considered, e.g, the perpetrator apologising
to the victim.
While in 1989, 2,100 cases were handled
in this way, in 1992 the figure rose to 5,100.
In 1995 settlements were sought with morethan 9,000 perpetrators and 8,000
victims,54 i.e, more than three times the
judgments handed down in ancillary
proceedings. The most important classes
of offence in terms of attempted
settlements include:
•
•
•
•
•

bodily injury - 63.6%
theft/fraud - 11.3%
damage to property - 14.5%
robbery and blackmail - 9%
defamation - 9.3%

54 Cf. Wandrey/Weitekamp, Die organisatorische

Umsetzung des Täter-Opfer-Ausgleichs in der
Bundesrepublik Deutschland - eine vorläufige
Einschätzung der Entwicklung im Zeitraum von1989 bis 1995 [Organisational implementation of
victim-offender mediation in the Federal Republicof Germany - an initial estimation of developmentsfrom 1989 to 1995], in “Täter-Opfer-Ausgleich in
Deutschland, Bestandsaufnahme und Perspektive’’[Victim-offender mediation in Germany - taking
stock and looking forward], published by theFederal Ministry of Justice, Bonn 1998, p.131.

111

RESOURCE MATERIAL SERIES No. 56
It is surprising to see how willing
aggrieved parties are to arrive at asettlement:••••

bodily injury - 78.1%
theft/fraud - 82.5%
damage to property - 84.9%
robbery and blackmail - 62.6%.55

The most important criterion forassessing the success of victim-offender
mediation is the settlement between
aggrieved party, and the accused. The
number of successful settlements issurprisingly high, broken down here byclasses of offence:••••

bodily injury - 86%
theft/fraud - 91.3%
damage to property - 92.4%
robbery/blackmail - 94.3%.56

The content of the settlements is also ofgreat interest. Looking at the actions
agreed between the accused and aggrievedparty, as part of the victim-offender
mediation, the following picture emerges.
Actions agreed included:
•
•
•
•
•
•
•

apology - 72.4%
giving a present - 6.8%
return of property - 2.1%
money for pain and suffering - 21.5%
job of work - 6.6%
joint activities with the victim - 8.4%
compensation - 27.3%

As this assessment takes account of all thedifferent possible actions, the total arrived
at is in excess of 100%57.
55 Hartmann/Stroezel,

Die bundesweite TAOStatistik [German national statistics on victimoffender mediation] in “Täter-Opfer-Ausgleich in
Deutschland’’ [Victim-offender mediation inGermany], op. cit., p.175.
56 Hartmann/Stroezel, op. cit., p.187.
57 Cf. Hartmann/Stroezel, op. cit., p.186.

112

As regards the, sums of money, thepicture obtained is as follws:
Reparation for Damages Payments
up to DM 250
54.4%
from DM 251 to DM 2,000
39.8%from DM 2,001 to DM 4,200
4.2%
in excess of DM 4,200
1.8%58
Payment for Pain and Suffering
up to DM 500
62.3%
from DM 501 to DM 1,000
17.7%
from DM 1,001 to DM 35,000 20.0%
The evaluations so far have related tothe agreement that services are to beprovided. This sort of solution makes sense
only if there is compliance, as otherwise
the aggrieved person is merely
disappointed yet again. It is pleasing tonote that in about 80% of cases, the sumsof money agreed were paid in full.59
As a result of the positive experience
gained with victim-offender mediation, thisfacility became specifically enshrined ingeneral criminal law as part of the Law toCombat Crime, which entered into force on
1 Decemer 1994. Section 46a of theGerman Criminal Code permits the courts
to reduce penalties or - if the penalty
imposed does not go beyond imprisonment
not exceeding one year or a fine of not morethan 360 daily increments - to refrain
wholly from punishment if, in the attempt
to achieve a settlement with the aggrievedparty, the perpetrator has made reparationin full - or to a considerable degree - fortheir actions or has made a serious attempt
at making reparation for their act.
By introducing this rule, Parliament
attempted to focus greater attention on
those of the victim’s interests which canbest be dealt with under victim-offender
58 Hartmann/Stroezel, op. cit., p.187.
59 Cf. Hartmann/Stroezel, op. cit., p.188.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
mediation using forms of material and nonmaterial assistance - compensating fordamage and allaying fears. The
explanatory memorandum to thelegislation states that this approach is also
more apt than simple punishment to gain
the perpetrator’s understanding of thereprehensible nature of their actions andto accept responsibility for theconsequences of the crime committed.60
In cases where the court would beallowed to abstain from punishment, thepublic prosecutor - with the consent of thecompetent court - can even refrain frombringing public charges; in cases of thatnature, there is not even a need for the caseto come before the courts.
As the law currently stands, it is entirely
up to the accused to decide whether s/hewishes to try and achieve a settlement withthe aggrieved party and to make up for loss
suffered as a result of the crime. Thismeans that those accused persons who
have competent legal counsel and sufficient
resources are more likely to see theirpunishment reduced or to escapepunishment than those accused persons
who are unfamiliar with such possibilities.
As this circumstance does not square with
the German Government’s concern toensure comprehensive support for theinterests of victims of crime, the Federal
Ministry of Justice is currently considering
enshrining victim-offender mediation incriminal procedural law. It is intended thatthe basic provision, which was drafted by
the Ministry only a couple of months ago,should be worded as follows:“At all stages in the proceedings, thepublic prosecutor and the court shall
examine the possibility of achieving asettlement between the accused and theaggrieved person and, in suitable cases,

take steps to achieve this.’’This “appellate norm’’ is intended tobring about more widespread use of victimoffender mediation in practice by ensuringthat the public prosecutor and the court
must - except in manifestly unsuitablecases - examine whether a settlement
between the accused and the aggrieved
person can be achieved. Yet this still leaves
it for the court and the public prosecutor
to decide how intensive that examination
will be and how to bring about themediation. There is a range of possibilities,
from distributing a leaflet with abstract
information to making oral
recommendations in specific cases
concerning how the damage might berepaired.
This provision has been supplemented
by a further provision allowing the publicprosecutor to instruct the accused “to takeserious steps to achieve a settlement withthe aggrieved party’’. Once that has
happened, the public prosecutor has theoption of discontinuing the proceedings.
While it is true that the aforementioned
draft legislation, which aims to enshrine
victim-offender mediation, has yet toovercome all the various Parliamentary
hurdles, hardly anyone in Germany worth
taking seriously would consider calling into
question an extension of victim-offender
mediation. Consequently, everything
seems to support the view that victimoffender mediation, which it is now
impossible to dissociate from the systemof criminal law sanctions as a conceivable
reaction to criminal acts, will continue - toa greater degree than hitherto - to help
victims of crime to escape the psychological,
social and financial problems which can
result from crime.

60 Cf. Bundestag Publication 12/6853, p.21.

113