In some cases, victims of criminal offenses can join the prosecution brought by the public prosecutor’s office. The Code of Criminal Procedure (Strafprozessordnung, StPO) governs these cases in § 395 StPO. In juvenile court proceedings, accessory prosecution is severely restricted by § 80 para. 3 of the Juvenile Courts Act (JGG). Accessory prosecution covers above all violent and sexual offenses. Where the victim has even been killed by the offense, their relatives can join an indictment as accessory prosecutors.
When is it worth a crime victim’s while to make use of the institution of accessory prosecution?
As an (active) participant, the accessory prosecutor has rights in proceedings which a (passive) witness does not have. Every accessory prosecutor has the right to be assisted by a lawyer acting as counsel (Beistand) or to be represented by a lawyer.
The most important rights of an accessory prosecutor are the right to obtain access to the case file, to challenge judges and expert witnesses for bias, to question the defendant, witnesses or expert witnesses, to object to questions or to make their own motions to take evidence. An accessory prosecutor, or their representative, may also make their own closing speech in the main hearing. In addition, the accessory prosecutor can – albeit only to a limited extent – lodge legal remedies (appeals).
Above all, however, as a party to the proceedings an accessory prosecutor has the right to be present throughout the entire trial. Since the accessory prosecutor is as a rule also a witness, the right to be present raises the question whether it is expedient to waive this right – at least until they have given their own evidence. For if the accessory prosecutor was present throughout the whole of the main hearing, that is to say also before giving their own evidence, this has to be taken into account by the court in its assessment of the evidence.
Representing an accessory prosecutor also includes advising on the extent to which it makes sense to assert claims for damages and for compensation for pain and suffering in so-called adhesion proceedings (Adhäsionsverfahren).
If there is a conviction, the costs of the accessory prosecutor’s lawyer are as a rule to be borne by the offender. In special cases, for example where the offense was particularly serious, a lawyer may even be appointed for the accessory prosecutor as counsel; and where there are financial difficulties, there is also the possibility of applying for legal aid (Prozesskostenhilfe, PKH).