Reparation in the German Criminal Justice System: What is, and what Remains to be Done
| DOI | 10.1177/026975800000700404 |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
International Review of Victimology,
2000, Vol. 7, pp. 265-280
0269-7580/00 $10
© A B Academic Publishers —Printed in Great Britain
REPARATION IN THE GERMAN CRIMINAL JUSTICE
SYSTEM: WHAT IS, AND WHAT REMAINS TO BE DONE
SUSANNE WALTHER
University of Cologne, Albertus-Magnus-Platz, 50923 Koln, Germany
ABSTRACT
Part one of this article shows how the idea that offenders should make reparation to their victims
figures within the German criminal justice system. In analysing the present state of the law, the
author differentiates between the procedural and material aspects of reparation. Under the rubric
of 'procedural aspects of reparation', the structure, function, and practical role of the German
`NebenIdage' are described, a feature that allows the victim to participate at trial yet – unlike the
`victim-impact-statement' approach taken in some common-law countries – shies away from giving
the victim a voice in sentence-finding. In its second part, this article deplores the lack of an overall
conceptual foundation for a more fundamental and systematic integration of the concept of
reparation into the criminal justice system. With regard to material reparation, the author proposes
a revised system of criminal sanctions which would feature measures of reparation next to measures
of reprobation (`punishment') as a major and regular avenue, or 'track', of the state's response to
crime.
REPARATION FOR THE VICTIM IN THE GERMAN CRIMINAL JUSTICE PRO-
CESS – PROCEDURAL AND MATERIAL ASPECTS
The extent to which the interests of the victim are addressed by Germany's
current criminal justice system can be broken down into procedural and material
aspects of reparation. In the following, the most prominent of these features in
German law will be introduced.
Procedural Aspects of Reparation
On the procedural level, two situations can be distinguished: the situation of the
victim when a case is formally charged and brought to trial, and the situation
when a case is settled by the prosecution authorities
without
trial. Disposition
without trial can take several forms. Particularly important in practice are orders
of summary punishment (§ 407 Strafprozessordnung [Criminal Procedure
Code], StPO) and dismissals with or without collateral orders (§ 153a StPO).
While only certain misdemeanor offenses are eligible for settlement without trial,
the prerequisites for such dispositions are typically met in at least half of all
prosecutable cases. In 1991, for instance, about 70% of all prosecutable cases
were settled without tria1.2
266
The German Webenklage' — the Victim as Party to The Trial
For those cases that do go to trial essentially felonies and serious misdemeanors
— the law provides for a conspicuous procedural option that countervails the
classical, dichotomous state-offender adversarial structure. In Germany, the
Nebenklage (§§
395
et seq.
StPO), which could perhaps be translated as 'collat-
eral action', gives victims of certain, enumerated crimes — crimes that are
considered to touch particularly and intensely personal interests — a right to
participate extensively in the trial. The
Nebenklage
confers a right to join but not
to initiate criminal prosecution,
3
and exercise of this right is independent of the
state prosecutor's consent. The victim, known as the
Nebenklager,
is not merely
an auxiliary to the prosecutor, but rather is a party to the proceedings with the
right to pursue his or her personal interests.
Although the
Nebenklage
is not a recent addition to, but rather is a historically
well-established feature of German criminal procedure, it is only within the last
decade that its reparative role has been fully acknowledged. First created in
various German states
4
in the liberal, revolutionary spirit of the 19th century and
under the influence of French law, the
Nebenklage
was institutionalized in the
Empire's Criminal Procedure Code of 1877. It was particularly this procedural
feature which at that time professed to a civil, citizen-oriented innovation in the
criminal law. The citizen's option to participate in the criminal trial indicated
disapproval of the typically absolutist idea that the prosecution of crime should
be exclusively brought by the state and for state interests. Initially, however, the
Nebenklage
was conceived of as a sibling of the
Privatklage
(private action
s
),
and, like the latter, it was limited to a set of minor crimes. It is also telling that in
those days the victim was not addressed as 'victim'
(Opfer).
Instead, the person
harmed by crime was referred to as the 'injured', 'wronged', or 'aggrieved' party
(Verletzter, Geschadigter),
6
revealing that the reparative idea behind the
Neben-
klage
was initially closer to civil law thinking with its classical civil forms of
`compensation' and 'satisfaction'. In practice, the
Nebenklage
was typically
brought in cases of insult, negligent physical injury, and homicide.
7
The traditional focus on 'satisfaction' is, of course, one of the reasons why,
until recently, a great deal of skepticism prevailed with regard to such procedural
participation of the victim.
8
It was long feared that victim participation would
jeopardize progressive goals of criminal justice, primarily the protection of
defense rights and the rehabilitation of the offender. The effect of a victim's
voice, it was felt, could all too easily be that of unduly increasing the punitiveness
of criminal justice.
9
Today, however, the idea of reparation (at least) in the crime context appears
in a changed and broadened form. It is essentially understood as a process of
constructive coping
which reaches beyond financial compensation into the
spheres of physical and psychological healing.
10
The emergence of this under-
standing certainly helped to resolve the debate in the 1970s in favour of preserv-
ing the
Nebenklage.
A rapid growth in empirical knowledge and indeed the
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