MEASURES TO PROTECT VICTIMS IN GERMAN CRIMINAL PROCEEDINGSA SUMMARY WITH SPECIAL FOCUS ON THE KEY POINTS OF
THE SECOND VICTIMS’ RIGHTS REFORM ACT
Martina Peter*

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 Justice for Victims of Crime andAbuse of Power of 29 November 19851 provided vital momentum at the international level, in the courseof these developments important legislation has been adopted in Germany. Reference should initially bemade 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 1986.2 This was followed by legislation
which included the “Act for the Protection of Witnesses in Examinations in Criminal Proceedings and forthe Improvement of Victim Protection” or the Witness Protection Act (Zeugenschutzgesetz ) of 30 April
1998,3 and the “Act for the Improvement of the Rights of Aggrieved Persons in Criminal Proceedings” or theVictims’ Rights Reform Act (Opferrechtsreformgesetz ) of 1 September 2004.4 Vital impetus has also been
provided by the Framework Decision of the European Union of 15 March 2001 on the standing of victims incriminal proceedings.5
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 theirsituation appear advisable, the German Federal Government has recently taken another initiative to further
strengthen the legal position of witnesses and aggrieved persons in criminal proceedings. In February
2009, it submitted the “Draft Bill for an 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.6 After passage by the Bundestag, the Act entered into force on 1 October 2009.7 In thecourse of the legislative process, several additional measures were taken to improve victim and witness
protection.

II. LEGISLATIVE MEASURES OF THE SECOND VICTIMS’ RIGHTS REFORM ACT
A. General Aims of the Second Victims’ Rights Reform Act
The measures taken with the Second Victims’ Rights Reform Act build on the legislative measurestaken to date in Germany to improve the level of protection for victims and witnesses. In doing so, thefundamental allocation of roles stipulated in the system of criminal proceedings remains unaffected. Above
all, the aim was to achieve practical improvements for the victims of crime without challenging the right of
the accused to a fair trial in accordance with the rule of law.
In order to enhance the rights of victims and witnesses of crime in criminal proceedings as appropriate,* Legal Desk Officer, Division for Criminal Procedure (Court Proceedings), Directorate-General for the Judicial System,
German Federal Ministry of Justice.
1 Assembly Resolution 40/43 including Annex.
2 Federal Law Gazette (BGBl), 1986 Part I, p. 2496.
3 Ibid , 1998 Part I, 820.
4 Ibid , 2004 Part I, 1354.
5 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.
6 Bundestag Printed Paper 16/12098 (Government Bill).
7 Federal Law Gazette, 2009 Part I, p. 2280.

125

RESOURCE MATERIAL SERIES No.81

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 the current
situation in Germany in terms of victim and witness protection, as well as the challenges and problems
identified in drawing up the Second Victims’ Rights Reform Act and the specific measures taken with thislegislation.

B. Strengthening the Procedural Rights of Aggrieved Persons in Criminal Proceedings: Measurestaken 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 ForceIn 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 withthe public prosecution office, with authorities and officials 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.8 This is followedby the obligation on the part of the public prosecution office, which is the lead investigating agency inGerman criminal procedural law, to launch investigation proceedings and investigate the factual situation,
provided that sufficient actual indications of a crime exist. This principle, which is set forth in section 152(2) and section 160 (1) StPO, and obligates the public prosecution office to take action, is referred to as theLegalitätsprinzip , 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 inform the complainant of its decision and indicate
the reasons therefore. The reasons for not preferring public charges might include:• No criminal offence has been committed.
• No evidence can be provided that the accused has committed such offence.
• O nly a minor offence has been committed and the public prosecution office therefore does notconsider it necessary to prefer public charges before a court of law.
Moreover, the public prosecution office must inform the victim of the criminal offence of the possibility ofcontesting 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 was committed. This meansthat even before now, in accordance with section 158 (1) StPO, information of an offence committed abroad
could likewise be filed with one of the domestic 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 thecompetent public prosecution office; under its obligation to investigate pursuant to section 160 (1) StPO,
the public prosecution office must establish how to proceed with the information, determining in particularwhether 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 recognized the additional need for reform in thosecases 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 have fallen victim to a criminal
8 Bock, Kriminologie , 2nd edition, 2000, p. 134 speaks of over 90% of cases.

126

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

offence in another Member State of the European Union, the option exists to file information of this offencein Germany. Furthermore, clear rules are now in place on how to proceed with this information – particularly
in which cases 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 theforeign 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 public prosecution
office must forward this information to the agency responsible for criminal prosecution in the otherMember State if requested to do so by the person filing the information. This may have a bearing in several
scenarios:• I nformation must be forwarded in this way when German criminal law does not apply to the offence.
 xample: A British citizen residing in Germany files information of a robbery committed against him
Ewhile 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 acriminal offence committed in another Member State wants to file information of this offence, forexample, upon his return from 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 German criminal law,
but the public prosecution office has made use of its powers under section 153c (1) first sentence,
number 1 StPO to dispense with prosecuting 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.
 xample: A German citizen files information of grievous bodily harm committed against his person whileEon holiday in France. The offence is punishable by both German and French law. However, the German
public prosecution office dispenses with prosecution in Germany in accordance with section 153c (1) first
sentence, number 1 StPO because the offence has been committed outside the territorial scope of theGerman Code of Criminal Procedure.
Now the authorities are explicitly obliged to forward the information of this criminal 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. the aggrieved person, makes an express motion therefore. Thisis because, as a rule, it may be assumed that information of a criminal offence will be filed in Germany, andthat the 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.
• F irst of all, limitations apply to the duty to forward events in which both the 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), arealready known to the competent law enforcement agencies abroad. In this case, a duty to forward theinformation nonetheless would entail a wasted effort.

127

RESOURCE MATERIAL SERIES No.81• F urthermore, sentence 2 stipulates that, in the case of minor offences, a duty to forward information
exists only if the person filing it was not in the position to file information of the offence in the otherstate.
 xample: If a victim has a piece of costume jewellery with a value of 20 euros stolen abroad, and wouldE
have been able to explain the facts of the case to the local police in a comprehensible manner, theGerman public prosecution office would not be obliged to forward information filed of the offence inGermany 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 ofthe offence.
•I n 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 a criminal offence abroad will
be somewhat hesitant to file information of this offence in a country where they do not know thelanguage, 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 offencewith the additional decision of whether – given their individual case and the scale of the difficulties
indicated – they can be expected to file information 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,9 namely Article 11 (2) thereof.10
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 privacy of victims andwitnesses.
(a) Witness Protection Harmonization Act
One example is the 2001 Witness Protection Harmonization Act (Zeugenschutz -Harmonisierungsgesetz ,ZSHG),11 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 are suited 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 their current environment and accommodated elsewhere. Other concomitantmeasures taken include the provision of psychological care, temporary assistance with living costs, ensuring
the security of those subject to protection by keeping them under observation, and the provision of new
identity documents.
(b) Provision of address details
Privacy protection for victims and witnesses in criminal proceedings is also becoming increasingly
important.
Many victims are afraid of giving their personal details when being examined. Especially in cases ofserious 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 their first 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 reliable basis to judge credibility and to allow the parties to make inquiries.
9 Framework Decision of the European Union of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/

JHA).
10 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 it without delay to thecompetent authority in the territory in which the offence was committed.
11 Federal Law Gazette, 2001 Part I, p. 3510.

128

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

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 fora 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, theserules 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 the websites of right-wing
extremist organizations, the content of which is punishable under German criminal law. He reports thisto 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), the rightwing extremist organizations learn of the witness’s address. The organizations release the address on theInternet with the tip-off: denouncer lives here.
(ii ) Measures to Shield Address Details pursuant to the Second Victims ’ Rights Reform Act
The Second Victims’ Rights Reform Act maintains the graded system of secrecy options, including thebasic 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 ofvictims 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 of work, 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 they or anotherperson 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.12• F
 irst of all, the Second Victims’ Rights Reform Act has made clear that the legal interests of thewitness are at stake.
• T he amendment to section 163 (3) StPO has also made clear that the provisions of section 68 StPO,
which serve to protect witnesses’ address details, must be observed by the police even at theinvestigation stage. Before now, these provisions applied primarily to the main hearing. In practice,
the aim here is to attach greater weight to these provisions, which are in place to protect witnesses
but had rarely been followed in practice, as well as to ensure that this information is now protected
throughout the entire course of the proceedings.
• F urthermore, the right of witnesses in certain cases not to provide information on their place ofresidence, as already stipulated in section 68 StPO, has been extended as necessary – also with theaim of protecting witnesses. From now on, this option will also exist when there is reason to fearthat 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 in efforts to intimidate.
• T hese provisions may also have a bearing in stalking cases.
 xample: A witness substantiates that testifying as a witness and providing her home address might wellE
result in attempts to influence and harass her if this information 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. the address of a victim
support organization instead of their own. The court can then summon the witness via this address.
• A lso, it is now clear that when her or his legal interests are at stake, the victim should be supported innaming an address other than her or his home address at which documents can still be served.
(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
12 Meyer-Goßner, StPO , 52nd edition, 2009, section 68, margin number 12.

129

RESOURCE MATERIAL SERIES No.81

exists, the information provided by witnesses regarding their identity or place of residence may not be madeavailable even following their testimony to those who pose a threat to the witness or victim.
 xample: During judicial examination it emerges that the accused has threatened a witness, but doesE
not yet know where she lives. However, she has already provided her address during police questioning.
From now on, she is permitted to refrain from providing her address, which means she must be
summoned via a victim support organization. Also, the authorities now need to make sure that theaccused cannot learn of 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 istherefore justified, considering all concerns worthy of protection, for them not to have to provide theirhome address. In such cases the justified interest of witnesses in keeping their home addresses secretmust generally take precedence over the interests of the other parties in the proceedings in receiving thisinformation.
In addition, it is usually not the witnesses’ place of residence that is vital in investigating the veracityof witness testimony, but rather the substance of the testimony itself and the conduct of the witness intestifying.13 The investigation of the truth is best served when a victim can testify without fear of danger or
influence.
(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), the Second Victims’ Rights Reform Act has now madeit 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 indictment of
witnesses named therein. Several victim support organizations have complained that this automaticallyreveals the addresses of all witnesses to the accused in every proceeding, since according to section 201 thebill of indictment is to be communicated to the accused.
With the Second Victims’ Rights Reform Act, section 200 (1) third sentence StPO now stipulates that thefull address need not be stated when naming witnesses in the bill 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, thedefendant can obtain this information from the files upon inspection.
3. Providing Information for Victims of Crime
The right of victims to information in criminal proceedings is of singular importance even at theinvestigation stage. Indeed, people can exercise their rights only if they are aware of them.
(i ) Information Requirements according to the Previous Law
The formerly applicable law already contained comprehensive information requirements for victims ofcrime. According to section 406h StPO, victims were to be made aware in particular of the following rights:• T he possibility according to section 406d StPO of being notified, upon application, not only of theoutcome of proceedings, but also whether custodial measures against the defendant or convictedperson have been ordered or terminated, and whether relaxation of the conditions of detention
or leave from detention has been granted for the first time; this applies if the victim can show alegitimate 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.
• T he possibility as stipulated in section 406e StPO for an attorney to inspect the court files on behalfof 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.
• T he possibility according to section 406f StPO of availing oneself of the assistance of an attorney orof being represented by such attorney in criminal proceedings; or, if being examined as a witness, the13 Decision of the Federal Court of Justice, Neue Zeitschrift für Strafrecht (NStZ), 1990, p. 352.

130

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

possibility that the witness may bring along a person he trusts to the examination (section 406f (3)first sentence StPO).
• T
 he possibility provided by section 403 et seqq. StPO of asserting a claim for damages against thewrongdoer as early as the criminal proceedings stage by means of a so-called “adhesive procedure”(Adhäsionsverfahren ).
 hanges to the Provision of Information to Aggrieved Persons with the Second Victims ’ Rights(ii ) C
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:• I n addition, a duty to inform victims of a potential entitlement to benefits pursuant to the Victims’Compensation Act (Opferentschädigungsgesetz ) was adopted. These can be considered if, as aresult of the offence, the aggrieved person has suffered serious health damage. Without the relevant
information, aggrieved persons are often not aware that the Victims’ Compensation Act exists.
• S imilarly, 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 bythis act, which allow the aggrieved person to move for the issuance of an interim injunction to protect
against further aggrievement.
• L ike all other duties to inform, the duty to inform victims of the possibility of receiving help andsupport from victim support organizations has also been made mandatory. This is because, apart fromsome exceptions, there is no discernible reason why information should not be provided, particularly
since it is clear that no additional effort is required to employ the standard procedure of distributing
informational leaflets.
• S
 ince the amendment to section 80 (3) of the Youth Court Act (Jugendgerichtsgesetz , JGG) cameinto force on 31 December 2006, it is 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.
• W ith the addition of the wording "in particular" (insbesondere ) it has been made clear comparedwith the previous text that in specific cases it may also be necessary to inform aggrieved persons ofother possibilities, e.g. accommodation in a women’s shelter or applying to prohibit the residents’registration office (Einwohnermeldeamt ) from disclosing 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 the amendments 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 theearliest possible stage.
(c) Information in writing
Furthermore, section 406h first sentence StPO stipulates that information must 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 appointments withthe law enforcement agencies – appointments which they often find disconcerting. Since the overwhelming
bulk of information is already provided in special leaflets, no major practical changes were needed here.
(d) Information for the aggrieved person in a language he or she understands
Section 406h first sentence StPO stipulates that, to the extent possible, information must be provided
in a language that is understandable to the aggrieved person. This requirement is also consistent with therights enjoyed by defendants in criminal proceedings. It necessitates the translation of the leaflets generally
provided to aggrieved persons at least into all “standard” languages. In practice, this reform did not entail amajor 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.

131

RESOURCE MATERIAL SERIES No.81

C. Strengthening the Procedural Rights of Aggrieved Persons in Criminal Proceedings: Measurestaken 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 publicprosecution as a private accessory prosecutor (Nebenkläger ). Joining the public prosecution as a private
accessory prosecutor gives the aggrieved persons named in section 395 StPO comprehensive powers toparticipate in the entire proceedings starting with the preferment of public charges.14 Private accessory
prosecutors have the possibility of contributing actively to the proceedings and influencing them by meansof 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 waspermitted 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 humantrafficking, for example, but also defamation (cases which must, however, demonstrate a certain severity
to even warrant the preferment of public charges). The group of individuals entitled to join the publicprosecution 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 199815 and the
Witness Protection Act of 30 April 199816 added victims of human trafficking and victims of certain casesof sexual abuse. With the Victims’ Rights Reform Act,17 which entered into force on 1 September 2004, theoffences stipulated in the Act on Civil Law Protection Against Violent Acts and Stalking were added to thecatalogue under section 395 (1) number 1 StPO, and family members of those killed were also given the
power to join the public prosecution as private accessory. With the 37th Criminal Law Amendment Act (37.
Strafrechtsänderungsgesetz ),18 which entered into force on 19 February 2005, victims of other statutory
definitions of human trafficking were added to the group of people entitled to join the public prosecution as
private accessory prosecutor, as were victims of stalking with the Act to Criminalize Stalking (Gesetz zur
Strafbarkeit beharrlicher Nachstellung ),19 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 to join the publicprosecution 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 and recognisably around the criterion of protecting those victims who are particularly
vulnerable. With this concept, the Federal Government legislative initiative followed the recommendationsof 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 aggression20 – should havedirect, 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.21 This was
why the entitlement to join the public prosecution 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 according to criminological and victimological insights.22
14 cf. Meyer-Goßner, StPO , 52nd edition 2009, before section 395, margin number 1.
15 Federal Law Gazette, 1998 Part I, p. 164.
16 Ibid , p. 820.

17 Federal Law Gazette, 2004 Part I, p. 1354.
18 Ibid , 2005 Part I, p. 239.
19 Ibid , 2007 Part I, p. 354.

20 Rieß, Gutachten 55. Deutscher Juristentag , C 85, margin number 123.
21 cf. Bundestag Printed Paper, 10/5305, p. 8 f.
22 Ibid , p. 11.

132

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

Academic studies also confirm that the institution of private accessory prosecutor should be oriented evenmore consistently towards the vulnerability of the victim – where this vulnerability stems in particular fromthe gravity of the criminal offence, directed against the victim’s highly personal legal interests – as wellas towards the consequences of the offence for the victim. Here, it has been established that for victims
testifying as witnesses, apart from the support provided in dealing with the personal consequences, themore severe the injury the more important it is for the victim to be able to influence the course of events inthe criminal proceedings.23
Further, for quite some time victim support organizations have been calling for other crimes typicallyinvolving a particularly serious impact on the aggrieved person, such as robbery, particularly serious cases of
coercion and blackmail, 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 the Second 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 needto protect those victims who have been particularly seriously affected – above all, victims of serious acts ofaggression and sexual crimes.
• T his means that certain offences, which cannot typically be classified as serious and which do notentail serious consequences for the victim (such as defamation), no longer automatically entitle thevictim to join the public prosecution as private accessory prosecutor.
• O
 n 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“in particular” – 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.
• W hether particular reasons exist depends primarily on how serious the consequences 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 thecase 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 underscore that crimes which inflict noserious consequences on the victim do not entail the right to join the public prosecution as private
accessory prosecutor.
Example: In average cases of negligent bodily harm in road traffic, the victim is, as before, not entitledto join the public prosecution as private accessory prosecutor if – as is generally the case – he has not
suffered serious consequences as a result.
• S erious consequences will be demonstrated in particular if the aggrieved person has endured or canbe expected to endure a certain degree of bodily or psychological harm. This may consist of healthdamage, traumatization or considerable shock. In addition, “particular reasons” may be established, as
has been the case so far, if for example the victim has to defend himself against serious accusations of
guilt.24 The provision more thoroughly addresses the vulnerability of victims who have been affectedby 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 stated above isan option available to certain aggrieved persons only, the legal institution of attorney assistance 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 themeasier to apply. For example, the law now states expressly and in detail that the counsel of an aggrieved
23 cf. Kilchling, Opferinteresse und Strafverfolgung , 1995, p. 291.

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

133

RESOURCE MATERIAL SERIES No.81

person with the right 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 him or herself 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).
 xample: The victim of a criminal offence may now be represented by a trusted person with knowledgeEof 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).
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 whichan attorney is to be appointed free of charge as counsel to the private 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 theproceedings as such.
(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 wererelatively 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 the appointment of a counsel forparticularly vulnerable private accessory prosecutors has been made more understandable and has been
extended as appropriate.
•N umbers 1 and 2 list criminal offences for which a so-called “victim’s attorney” (Opferanwalt ) must
be appointed for the adult victim or his or her family without further requirements and regardlessof the victim’s or his or her family’s financial condition. These crimes include rape or trafficking
in human beings for the purpose of sexual exploitation (number 1) and murder/attempted murder(number 2).

•A ccording 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 crimesof kidnap, abduction, the abduction of minors, deprivation of liberty, kidnapping for extortion andhostage taking are now included as well.

•I n 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 be appointed free of charge for children, youths and victims who
cannot themselves safeguard their interests sufficiently, or cannot reasonably be expected to doso. The provision has now been expanded i.e. to include cases of abandonment (section 221 StGB)
as well as abuse of a position of trust (section 225 StGB), offences against personal freedom, suchas human trafficking or taking hostages and stalking (section 232 through 235 StGB, section 238
through 239 StGB), especially serious cases of using threats or force to cause a person to do, suffer
or omit an act (section 240 (4) StGB) – which in particular includes forced marriage and forced
sexual activity, robbery and blackmail and use of force or threats against life or limb (sections 249
and 255 StGB). The aim of the expansion is to enable appointment of a victim's lawyer free of charge
to that specified group of persons who have already been justifiably recognized as particularly
vulnerable. According to the new rules, if one of the offences stipulated in number 4 is committed,
a victim’s lawyer may be appointed without further requirements and irrespective of the financial
condition of the affected youth or helpless victim.

134

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS(b) Reform of section 397a (2) StPO
The provisions of section 397a (2) StPO, stipulating the conditions which govern the award of legal aid toprivate accessory prosecutors, were redrafted as well.
In line with the justified demands of victim support organizations, the criterion “if the legal and factual
situation is complex” was removed. This stipulation corresponded to the wording in section 140 (2) StPO,
which governs the conditions governing the defence required for the accused. A legal and factual situationis considered complex if, from the point of view of the private accessory prosecutor, the facts of the caseare extensive, intricate or difficult 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 submit motions forthe admission of evidence, or if complicated/contentious legal issues are to be decided (e.g. measures that
affect the personal life of the private accessory prosecutor; excluding the public, or removing the accused).
In practice, however, this stipulation led to unfairness.25
This is because, even in straightforward cases where the private accessory prosecutor is equally unable
to safeguard his or her own interests sufficiently, or cannot reasonably be expected to do so – for example,
if he or she has to deal with the serious 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 other than whether the private
accessory prosecutor is in the position to safeguard his or her interests and whether this can reasonably be
expected of him or her.
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 of an attorney in these cases they would likely be unable to safeguard their interests 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 still in their development stage,
which means that extra care must be taken to shield them from stress. The StPO therefore contains acatalogue of provisions to protect juvenile victims and witnesses. 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 andthe general public (section 247 second sentence StPO; section 172 number 4 of the Courts Constitution
Act, GVG). Moreover, a multitude of special provisions that serve to protect children and juveniles are inplace in the guidelines to be followed by public prosecutors.26 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 uponthese 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 the examination of children,
an expert is to be brought in with special knowledge and experience in the area of child psychology. In theevent that a person accused of a sexual offence who lives 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 canbe taken.
Until now, however, this protection was only stipulated in Germany for juveniles under 16. With theSecond Victims’ Rights Reform Act, the cut-off age in the StPO and GVG has been raised to 18 years in linewith those limits specified in various international agreements such as the United Nations Convention on
25 Ibid , section 397a, margin number 9.

26 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

135

RESOURCE MATERIAL SERIES No.81

the Rights of the Child27 or the EU Charter of Fundamental Rights.28

E. Strengthening the Rights of Witnesses
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 for ascertaining 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 their personal 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 duty of a witness totestify 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 the assistanceof an attorney in all examinations, so long as this does not jeopardize the purpose of the investigation.
Beforehand, this right was already guaranteed in Germany on the basis of a decision of the Federal
Constitutional Court.29 But the statute now explicitly clarifies how the right is to be enforced, as well as
specifying the grounds for exclusion, based above all on whether the presence of an attorney during theexamination would jeopardise the purpose of the investigation.
(i ) Grounds for Exclusion
An attorney can be excluded from an examination if certain facts justify the assumption that his presence
would “not merely insignificantly” jeopardize the orderly taking of evidence.
Example: A witness is examined in a fraud case and wishes to bring in an attorney as counsel during theexamination. This attorney is suspected of participation in the underlying offence on the basis of certain
facts. He or she 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 to exercise their rights themselves during examination. If
so, they are assigned an attorney for the duration of the examination.
 xample: A young woman is repeatedly beaten and abused by her husband. Because of what hasEhappened she is frightened and under heavy psychological strain. Due to her 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, or that she will not be able to voice her desire to exclude the generalpublic from the court 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 subsequent changes.)Example: A witness whose counsel has been excluded from the examination by a decision of the publicprosecution office can apply for a court decision at the court which is responsible for investigating thefacts of the case (so-called examining judge).

27 Federal Law Gazette, 1992, Part II, p. 990.

28 Official Journal of the European Communities, 18.12.2000, C 364/1.

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

136

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

III. CONCLUSION
The constitutional order of the German Basic Law (Grundgesetz ) also obliges state organs to standin defence of the victims of criminal offences and to respect their needs. This is particularly 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 whoare aggrieved as the result of sex crimes or serious violent crime. In providing this protection, lawmakers
face the challenge of achieving the best possible protection for the victims of crime without obstructing thejustified defence rights of the accused in doing so. Any measures to protect victims must be fundamentallycompatible with the purposes of criminal proceedings, since state organs are obliged first and foremost
to investigate criminal offences and to establish guilt or innocence on the part of the accused in fair
proceedings conducted in compliance with the rule of law. Under this premise the aim should be to takethe 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 organizations have already voiced their opinion thatthese challenges have been successfully met.

137