The most important facts at a glance
- Private prosecution is an alternative criminal procedure in which the injured party can act as the prosecutor if the public prosecutor's office denies the public interest in prosecution or does not take over the proceedings in accordance with Section 376 of the German Code of Criminal Procedure (StPO)
- The chances of success of a private lawsuit are statistically low, but can be significantly improved by excellent legal representation and professional preservation of evidence
- Private prosecution is only possible for precisely defined criminal offenses, including trespassing, insult, violation of the secrecy of correspondence, bodily harm, threats, damage to property and other offenses listed in Section 374 (1) of the Code of Criminal Procedure (StPO)
If the public prosecutor's office does not want to take action
Have you experienced a criminal offense where the public prosecutor's office dropped the case or refused to take action at all? For many of those affected, this is a frustrating experience that can shake their confidence in the rule of law. The reality is often that public prosecutors deny the public interest in prosecution for certain offenses or do not take over the proceedings in accordance with Section 376 of the Code of Criminal Procedure. However, the legislator has provided an alternative procedure for such cases: private prosecution.
The private prosecution enables injured parties to act as prosecutors themselves and initiate a criminal prosecution if the public prosecutor's office denies a public interest in the prosecution. In this case, a specialized lawyer represents the private claimant - in contrast to the usual criminal proceedings, the private claimant conducts the prosecution file independently in his own name. This is a demanding and, in practice, extremely complex undertaking.
As a law firm that Criminal defense nationwide we have extensive experience with private prosecution proceedings in various areas of law and before various courts throughout Germany. This cross-regional practice gives us a valuable overview of the different prospects of success of private actions depending on the region and court. But what are the actual chances of success of these proceedings? What requirements must be met? And for which cases is the private action suitable at all?
In this comprehensive guide, we shed light on all relevant aspects of private prosecution and provide you with a realistic assessment of your chances of success. With sound information and practical tips, we want to help you make an informed decision.
Legal basis of the private action
Legal basis and requirements
Private prosecution is regulated in Sections 374 et seq. of the Code of Criminal Procedure (StPO). It is an exception to the state's monopoly on prosecution, where normally only the public prosecutor's office can bring charges. The legislator has provided this instrument for offenses where the public interest in prosecution is typically lower.
According to Section 374 of the Code of Criminal Procedure, private prosecution is only permitted for precisely defined criminal offenses, including
- Trespassing (§ 123 StGB)
- Offenses under §§ 185 ff. of the German Criminal Code (StGB) can generally be prosecuted in private prosecution, with certain exceptions (e.g. insults against authorities) (§ 374 Para. 1 No. 2 StPO)
- Violation of the secrecy of correspondence (§ 202 StGB)
- Bodily injury (§ 223 StGB)
- Threat (§ 241 StGB)
- Damage to property (§ 303 StGB)
- Other offenses listed in Section 374 (1) of the Code of Criminal Procedure
Private prosecution is not possible for serious offenses such as grievous or dangerous bodily harm, robbery, fraud or other crimes (Section 374 of the Code of Criminal Procedure).
The difference to the action enforcement procedure
The private prosecution should not be confused with the compulsory prosecution procedure. While the private prosecution is an independent procedure in which the injured party acts as the prosecutor, the compulsory action procedure aims to force the public prosecutor's office to bring charges.
Enforcement proceedings are not a substitute for private prosecution, but an independent legal remedy that can generally be considered if the public prosecutor's office does not bring charges for official offenses. Compulsory action proceedings are generally excluded for private prosecution offenses (Section 172 (2) sentence 3 StPO).
The demarcation to the accessory prosecution
Private prosecution is to be distinguished from accessory prosecution, in which the injured party participates in criminal proceedings that have already been opened. Private prosecution, on the other hand, means that the injured party brings charges independently.
Prospects of success for a private lawsuit: a realistic assessment
Statistical analysis
The statistical chances of success of a private prosecution are sobering: only around 15-20 % of all private prosecutions result in a conviction. There are various reasons for this:
- High formal hurdles when filing a lawsuit
- Evidentiary difficulties for the private plaintiff
- Priority implementation of an attempt at atonement
- Judicial cessation due to insignificance
- Acquittal due to insufficient evidence
However, this low success rate does not mean that private prosecution is always futile. With good preparation and legal support, the chances of success can be significantly increased.
Factors that influence the success of a private lawsuit
The following factors have a positive effect on the chances of success of a private lawsuit:
- Quality of the evidence: The better documented the offense is (through witness statements, photos, videos, documents), the higher the chances of success. Independent witnesses in particular can be decisive.
- Seriousness of the offense: Although private prosecution is intended for „minor“ offenses, the chances of success increase if the offense has reached a certain level of seriousness (e.g. an insult that was particularly defamatory).
- Legal representation: Private plaintiffs with legal representation have significantly better chances of success. An experienced criminal defense lawyer can reliably meet the formal requirements and strategically present the evidence.
- History between the parties: In the case of repeated assaults or if a previous history is documented, this can increase the chances of success.
- Willingness of the public prosecutor's office to cooperate: In some cases, the public prosecutor's office takes over the proceedings retrospectively (§ 377 StPO), which improves the chances of success.
When assessing the chances of success in a specific individual case, the experience of a specialized criminal defence lawyer is essential. Only they can expertly assess all relevant factors and make a realistic prognosis.
Typical case constellations and prospects of success
Insulting offenses
Offenses are among the most common causes for private lawsuits. The chances of success here depend heavily on whether the insult can be proven and the context in which it occurred:- Written insults (e.g. in emails, letters or social media) have a much better chance of success as they are documented.
- Verbal insults are more difficult to prove and are less likely to be successful unless there are reliable witnesses.
- Context of the offense: Insults uttered in the course of a heated argument are often judged more leniently by the courts than deliberate and thoughtful insults.
Assault offenses
It is often easier to prove bodily harm than insults, as physical injuries can be documented:- Medical certificates about injuries significantly increase the chances of success.
- Photos of injuries can serve as important evidence.
- Independent witnesses are also of great importance here.
Damage to property
In the case of damage to property, the following factors are relevant to the chances of success:- Documentation of the damage through photos and expert opinions
- Witness statements on the perpetrator
- Amount of the damage caused
Trespassing
Trespassing depends on the following factors:- Clarity of ownership
- Previous warnings or bans
- Witnesses to the trespassing
Damage to property
In the case of damage to property, the following factors are relevant to the chances of success:- Documentation of the damage through photos and expert opinions
- Witness statements on the perpetrator
- Amount of the damage caused
Trespassing
Trespassing depends on the following factors:- Clarity of ownership
- Previous warnings or bans
- Witnesses to the trespassing
The path to private prosecution: procedure and costs
Procedure of a private action
- Atonement proceedings: As a rule, an attempt at reconciliation must be made with a conciliation office or arbitrator before filing a private action (Section 380 (1) of the Code of Criminal Procedure in conjunction with the respective state regulations). Only if this attempt at reconciliation has been unsuccessful can the private action be brought.
- Filing a lawsuit: The private prosecution must be submitted in writing to the competent district court. It must meet the formal requirements of Section 381 of the Code of Criminal Procedure, including
- Name of the defendant
- Description of the crime
- Indication of the evidence
- Declaration on the atonement procedure
- Signature (ideally by a lawyer)
- Preliminary examination by the court: The court examines the admissibility of the private prosecution and can reject it for various reasons, such as lack of criminal liability or insufficient grounds.
- Opening resolution: If the private prosecution is admitted, the court issues an opening order and schedules a main hearing.
- Main hearing: In the main hearing, the private plaintiff or his lawyer presents the charges and must prove the guilt of the defendant.
- Judgment: The court either acquits or convicts the defendant. If the defendant is convicted, a fine is usually imposed in private prosecution cases. Prison sentences are very rarely applied in these proceedings.
Cost risk in a private lawsuit
A key aspect that should be considered when deciding for or against a private lawsuit is the considerable cost risk:
- Legal costs: An advance on court costs must be paid in order to file a private prosecution. The amount of the advance on court costs depends on the statutory fees in criminal proceedings and can amount to several hundred euros.
- Legal fees: Although legal representation is not mandatory, it is essential in practice. Lawyers' fees are generally based on the German Lawyers' Fees Act (RVG). As a rule, however, an experienced criminal lawyer will conclude a fee agreement with his client on an hourly rate basis. Private prosecution is therefore generally only a realistic option for clients with sufficient financial resources.
- Costs in the event of failure: If the private prosecution is dismissed or the defendant is acquitted, the private prosecutor bears all procedural costs, including the necessary expenses of the defendant (Section 471 StPO). This cost risk can quickly take on considerable dimensions.
- Costs to be borne if successful: In the event of a conviction, the convicted person must generally bear the costs of the proceedings and the necessary expenses of the private prosecutor (Section 465 of the Code of Criminal Procedure). However, if the private prosecution is only partially successful, the court may order the private prosecutor to bear all or part of the costs (Section 467 (1) StPO).
A private prosecution is therefore a considerable financial investment that only makes sense if either the prospects of success are particularly good or if the client has a strong interest in the criminal prosecution regardless of the financial aspect - as is often the case with politicians or public figures, for example.
The cost risk should therefore always be weighed against the potential benefits of a private lawsuit. In many cases, it may make more economic sense to assert claims under civil law or to work towards an out-of-court settlement.
Practical tips for a successful private lawsuit
The role of the specialized criminal defence lawyer
In a private prosecution, a specialized lawyer represents the private plaintiff - in contrast to the usual criminal proceedings, he conducts the prosecution file independently in his own name. This role constellation is unusual and requires specific experience.
Our practical experience in representing prominent personalities, politicians and members of the nobility in private prosecution proceedings shows that the following factors can be decisive:
- Specialized expertiseOnly choose a lawyer with proven experience in private prosecution proceedings - ideally a specialist lawyer for criminal law.
- Strategic case analysisA comprehensive preliminary analysis of the prospects of success is essential in order to avoid unnecessary costs.
- Professional preservation of evidenceThe preservation of evidence must go far beyond what a layperson would normally consider sufficient. This may require the involvement of expert witnesses or forensic experts.
- StaminaPrivate prosecution requires staying power - both financially and psychologically. Your lawyer should prepare you realistically for this process.
Who is eligible for a private prosecution?
The socio-economic reality
In practice, it has been shown that private prosecution proceedings are predominantly taken up by clients with corresponding financial resources. There are structural reasons for this:
- Substantial cost advancesThe court and legal fees to be paid in advance represent a considerable financial hurdle.
- Uncertain prospects of successThe statistically low chances of success make private prosecution a financial risk that not everyone can afford or wants to take.
- Time dimensionPrivate prosecution proceedings can drag on for months or years - a time factor that not every injured party can afford.
- Prominent clientsPrivate prosecution is used particularly frequently by public figures, politicians or members of the nobility. These client groups often have special interests at the forefront:
- Restoration of public reputation
- Precedents with a signal effect
- Strategic legal interests beyond the individual infringement
In practice, private prosecution is therefore often an instrument for those who have the necessary financial means and for whom the immaterial value of criminal prosecution is particularly high.
Legal representation: not only recommended, but crucial
Legal representation by a specialized criminal defense lawyer is not only recommended for private prosecution, it is essential in practice:
- In-depth criminal law expertiseThe appointed lawyer must not only be proficient in substantive criminal law, but must also have sound knowledge of criminal procedure in order to represent the private plaintiff competently.
- Strategic process managementAn experienced lawyer can develop a suitable procedural strategy that is legally watertight and at the same time takes into account the tactical aspects of the proceedings.
- Formal perfectionThe formal requirements for a private lawsuit are extremely high. Even minor formal errors can lead to rejection and cost valuable time and resources.
- Processual sovereigntyIn the main hearing, it is crucial that your lawyer acts confidently and can communicate with the court on an equal footing. This requires considerable experience in the main hearing.
- Network to experts: Expert reports or expert opinions are often necessary for successful private lawsuits. An established specialist lawyer has the necessary network of reputable experts.
Our experience with high-profile clients in the area of private prosecution, whether for politicians or public figures, shows: Choosing the right lawyer is perhaps the most important decision in these proceedings and can make the difference between success and failure.
Current developments in the area of private prosecution
Influence of digitalization
Increasing digitalization also has an impact on private prosecution offences:
- Insults on social mediaThe number of insults and threats on social networks is increasing. These are often well documented and can be used as evidence in private prosecution cases.
- Digital evidenceChats, emails and messenger messages are playing an increasingly important role as evidence. However, securing this evidence can be technically challenging.
- Anonymity on the InternetIdentifying perpetrators of online crimes can be particularly difficult and often requires specialist IT knowledge.
Practical challenges
In practice, lawyers face particular challenges when conducting private prosecution proceedings:
- Judicial restraintMany courts view private lawsuits with a certain skepticism and tend to handle the proceedings rather restrictively.
- Evidence problemsThe burden of proof lies entirely with the private plaintiff, without the usual support of police investigations.
- Process complexityThe formalized procedure requires detailed procedural knowledge, which is a challenge even for many lawyers.
- Cost developmentIn practice, the actual costs often exceed the original estimates, which makes a continuous economic revaluation necessary.
- Psychological stressThe long duration of the proceedings and the personal confrontation with the accused can be psychologically stressful for clients.
Checklist: When is a private lawsuit worthwhile?
A private prosecution is most likely to be worthwhile if the following factors are present:
- Good evidenceThere is clear evidence of the crime and the perpetrator (e.g. documents, independent witnesses).
- Serious infringement of rightsThe crime has a considerable impact on the injured party.
- Previous convictions of the accused: A conviction is more likely with relevant previous convictions.
- Risk of repetitionIf further infringements are to be feared, a private lawsuit may be appropriate.
- Insurance coverA few legal protection insurance policies include private legal action, but the majority of providers exclude it. Prior clarification with the insurer is always necessary.
A private lawsuit, on the other hand, is less promising if:
- MinorityThe act has only minimal consequences.
- Problematic historyThere is a complicated history between the parties.
- Unclear legal situationThe legal classification of the crime is unclear or controversial.
Realistic assessment of the prospects of success
Private prosecution is an important way for injured parties to take the initiative themselves if the public prosecutor's office is unwilling to take action. However, the statistically low chances of success should not obscure the fact that there is a good chance of a successful private prosecution in individual cases - if the right conditions are met.
Let's not mince our words: Private prosecution is a complex legal instrument that is mainly used in practice by clients with the corresponding financial resources. Politicians, celebrities and people with a special social status often resort to this procedure, as the immaterial value of a criminal prosecution can be particularly high for them.
Decisive factors for success are complete evidence, meticulous preparation and first-class legal representation by a specialist criminal lawyer who has specific experience with private prosecution proceedings. At the same time, the considerable cost risk should be realistically assessed and weighed against the possible benefits.
At our law firm, we have extensive experience in conducting challenging private litigation proceedings for high-profile clients, where there is often more at stake than the individual infringement - for example, the restoration of public reputation or precedent-setting cases with a signal effect. This experience enables us to accurately assess the prospects of success and develop a tailor-made strategy.
In many cases, it can make sense to seek legal advice first in order to assess your individual chances of success. We will be happy to advise you on your specific case and help you to find the best course of action for you - be it a private lawsuit or an alternative strategy for enforcing your rights.
If you have any questions about your situation, please arrange a non-binding consultation with our lawyers specializing in criminal law.
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