The most important facts at a glance
- Private prosecution is a special form of criminal proceedings in which the person concerned can act as the prosecutor if the public prosecutor's office has discontinued the proceedings due to a lack of public interest.
- The civil action, on the other hand, is aimed at compensation for damages or pain and suffering and can be pursued in parallel with the private action - a combined strategy increases the chances of satisfaction.
- An unsuccessful attempt at reconciliation, expert legal advice and careful consideration of the criminal and civil law options are essential for a successful private prosecution.
Have you been the victim of an insult, assault or damage to property and filed a complaint - only to receive the news that the public prosecutor's office is dropping the case? Do you feel let down and are wondering what legal options you still have? The difference between a private lawsuit and a civil lawsuit is crucial in this situation in order to choose the best legal route for you.
As a specialist law firm which, if required, can even Constitutional complaints we at SITTIG LAW guide numerous clients through precisely this legal challenge every year. In this article, we explain to you in an understandable and practical way what options you have if the public prosecutor's office does not pursue your complaint.
If the public prosecutor's office does not take action: Your alternatives
Have you filed a criminal complaint and received a notice from the public prosecutor's office stating that the proceedings will be discontinued and you will be „referred to private prosecution“? This moment is frustrating for many of those affected, but it by no means means means the end of your legal options.
The public prosecutor's office usually discontinues proceedings if it sees no „public interest“ in prosecution. This often concerns offenses such as
- Insults and defamation
- Minor bodily injuries
- Damage to property
- Trespassing
- Threats
- Violations of the secrecy of correspondence
- Stalking
In the case of these offenses, the person concerned can act as the accuser themselves - via a private prosecution. Additionally or alternatively, it is possible to assert claims via a civil action. But what are the differences?
Private lawsuit vs. civil lawsuit - the basic differences
What is a private prosecution?
A private prosecution is a special form of criminal proceedings in which you, as the person concerned, bring the charges instead of the public prosecutor's office. The legal basis can be found in Sections 374 et seq. of the Code of Criminal Procedure (StPO). You essentially take on the role that the public prosecutor's office would otherwise have - including the associated rights and obligations. The aim of a private prosecution is primarily the criminal conviction of the perpetrator. It is about a punishment (fine or prison sentence) that the state enforces.What is a civil action?
A civil action is a procedure between two private individuals or companies. The legal basis here is provided primarily by Sections 823 et seq. of the German Civil Code (BGB) on tortious acts. The aim of a civil action is usually to obtain financial compensation for the injustice suffered. This can take the form of damages, compensation for pain and suffering or a declaration to cease and desist.The private prosecution in detail: requirements and procedure
1. offenses for which a private prosecution is possible
Private prosecution is only permitted for certain offenses, which are listed exhaustively in Section 374 (1) of the Code of Criminal Procedure:- Trespassing
- Insult (also slander and libel)
- Violation of the secrecy of correspondence
- Bodily injury
- Threat
- Damage to property
- Certain offenses against intellectual property (e.g. patent infringements)
2. the attempt at atonement as a mandatory requirement
Before you can file a private lawsuit, you must carry out a so-called „Sühneversuch“ in most federal states. This takes place before an arbitration board (also known as an arbitrator or conciliation board, depending on the federal state). The aim of the conciliation attempt is to reach an out-of-court settlement between you and the accused. Only if this attempt is unsuccessful will you receive a certificate with which you can then file a private lawsuit.3. further requirements and exclusions
Only the person directly affected by the offense is entitled to bring a private action - you cannot bring a private action on behalf of a friend or relative (except as a legal representative). It should also be noted:- Limitation periods must be observed (usually three years)
- Private prosecution is not possible against minors
- The public prosecutor's office can withdraw the proceedings at any time
4. the course of the private prosecution proceedings
The procedure for a private prosecution is basically as follows:- Submission of the statement of claimThis must formally comply with the requirements of §§ 385 and 200 of the Code of Criminal Procedure and should be drawn up by a lawyer.
- Examination and service by the courtThe competent court examines the admissibility of the action and serves it on the defendant.
- Objection of the defendant, if applicableThe defendant may comment on the statement of claim.
- Decision on the openingThe court decides whether to open main proceedings.
- Main hearingYou appear as a private plaintiff and (unlike a joint plaintiff) must be present during the entire trial.
- VerdictThe court decides on acquittal or conviction.
The civil action as an alternative or supplement
Advantages of the civil action
- Lower evidentiary hurdlesIn civil proceedings, it is sufficient if the court is convinced of the „overwhelming probability“ of your account.
- Broader range of applicationsCivil action is not limited to certain offenses.
- No attempt at atonement requiredAs a rule, you can file a complaint directly.
- Financial compensationIf successful, you will receive compensation for damages and/or pain and suffering.
Disadvantages of the civil action
- No consequences under criminal lawThe offender is not punished, but only obliged to make a payment.
- Enforcement riskEven if you are successful, the enforcement of your claims is not guaranteed if the opponent is insolvent.
The optimal strategy: combining both avenues of action
In our experience at SITTIG LAW, many clients achieve the best results when they pursue both legal avenues in parallel:
- The Private lawsuit leads to a criminal conviction of the perpetrator and offers you personal satisfaction.
- The Civil action provides you with financial compensation for the damage suffered.
This dual strategy covers both needs that many victims have: on the one hand, punishment of the perpetrator and, on the other, compensation for the damage suffered.
Costs and prospects of success in private and civil actions
Costs of a private lawsuit
The costs for a private prosecution are made up of:- Court costs
- Legal fees
- Costs for witnesses and experts
- In the event of an acquittal, you as the private plaintiff must bear the costs of the proceedings and the necessary expenses of the defendant
Costs of a civil action
Similar costs are incurred in a civil action:- Court costs
- Legal fees
- Costs for evidence
- If the claim is dismissed, you as the claimant will bear all legal costs and the other party's legal fees
Prospects of success
The chances of success depend heavily on the individual case, in particular on:- The quality and quantity of available evidence
- The legal complexity of the case
- The professional expertise of your legal advisor
Preserving evidence: the key to success
Important evidence
Depending on the case, the following evidence may be relevant:- Written documents (e-mails, text messages, letters, chat histories)
- Photo or video recordings
- Medical certificates (for bodily injuries)
- Witness statements
- Expert opinion
Tips for preserving evidence
- Save digital evidence with screenshots and save them with the date and time
- Keep a diary of incidents
- Have injuries documented by a doctor
- Collect contact details of possible witnesses
- Keep all relevant documents in a safe place
Decision-making aid: private action, civil action or both?
This speaks in favor of a private prosecution:
- You want the perpetrator to be convicted under criminal law
- You have strong evidence that makes a conviction likely
- Personal satisfaction is more important to you than financial compensation
- This is an offense for which a private prosecution is permissible
The case for a civil action:
- Financial compensation is your priority
- The evidence is not sufficient for a criminal conviction
- You want a faster procedure with lower evidentiary hurdles
- This is an offense for which no private prosecution is possible
A combination of the two is a good idea:
- You would like to obtain both a criminal conviction and financial compensation
- The evidence is strong enough for both types of proceedings
- You want to exhaust all legal options
Why you need legal support for private and civil actions
Increased chances of success
Our experience at SITTIG LAW shows that expertly conducted proceedings have a significantly higher chance of success.Legal expertise
The formal requirements for statements of claim are high, and procedural errors can lead to dismissal. With specialized legal support, you can avoid such pitfalls.Emotional relief
As the victim of a crime, you are emotionally involved. A lawyer not only offers legal support, but also the necessary professional distance to proceed objectively and strategically.Process economy
An experienced lawyer knows which steps are really necessary and which can be avoided. This not only saves time, but also costs.SITTIG LAW: Your specialists for private and civil actions
Our services at a glance:
- Comprehensive advice on the balance between private action and civil action
- Strategic planning and implementation of the atonement attempt
- Expert preparation of statements of claim
- Full representation at all stages of the proceedings
- Combination of criminal and civil law strategies for maximum success
- Transparent cost clarification
Our promise to you:
- Personal support from a specialized lawyer
- Clear communication and regular updates on the status of the process
- Transparent prospects of success without unrealistic promises
- Efficient and goal-oriented process management
The correct legal process following a discontinued criminal complaint
If the public prosecutor's office has dropped your criminal charges, you have effective legal instruments at your disposal in the form of private prosecution and civil action. The main difference between private prosecution and civil action lies in their objectives: While the private action aims to obtain a criminal conviction, the civil action is concerned with financial compensation.
A combination of both legal channels is often the best strategy for achieving both satisfaction and compensation. With the right legal support, the chances of successful proceedings increase considerably.
At SITTIG LAW, we support you with our expertise in both areas of law and work with you to develop the best approach for your case. Get in touch with us - we will help you to enforce your rights.
Frequently asked questions
A private prosecution is a criminal procedure in which you, as the person affected, bring charges instead of the public prosecutor's office in order to obtain a criminal conviction. A civil action, on the other hand, is a procedure under private law between two parties with the aim of obtaining damages or compensation for pain and suffering.
A private prosecution is only possible for certain offenses listed in Section 374 of the Code of Criminal Procedure, including trespassing, insult, assault and damage to property.
An attempt at conciliation is a mandatory out-of-court mediation procedure before an arbitration board before filing a private lawsuit for certain offenses. A private action can only be filed with a certificate of the unsuccessful attempt at conciliation.
The chances of success depend heavily on the evidence in the individual case, whereby guilt must be proven „beyond reasonable doubt“ in criminal proceedings. At SITTIG LAW, we support you with our many years of experience in private prosecution proceedings.
Yes, you can take both legal routes in parallel, which often makes sense, as the private action is aimed at a criminal conviction and the civil action at financial compensation.
The costs are made up of court costs, lawyers' fees and, if applicable, costs for witnesses and experts, whereby you must also bear the costs of the defendant in the event of an acquittal.
Private prosecution proceedings take an average of 6-12 months, civil proceedings in the first instance around 4-9 months, whereby the duration can vary depending on the complexity and court workload.
In the event of non-payment despite a legally binding judgment, enforcement measures are available to you.
At SITTIG LAW, we offer detailed advice on the development of an individual strategy if you are unsure about the right legal course of action.
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