Private party in criminal proceedings from the defendant's perspective: adhesion, effect and defence

Joinder as a private party under section 67 StPO is the declaration of the injured party that they assert their private law claim arising from the offence within the criminal proceedings. The injured party thereby becomes a distinct participant with their own rights in the proceedings.

The joinder can in principle be declared up to the close of the taking of evidence at first instance. Before that point it can be extended or quantified if new indications for the amount of damages become available.

In substance the claim is for damages by civil law standards. The criminal court examines it only if this is possible without significantly delaying the proceedings; otherwise the private party is referred wholly or partly to civil proceedings with the claim.

With the joinder the private party acquires procedural rights. These include in particular access to the file, the right to make applications for evidence, to take part in the main hearing and to put questions to witnesses and experts. These rights can noticeably affect the conduct of the proceedings.

On the judgment the joinder has a twofold effect. In the case of a conviction the criminal court can award the damages claim in the operative part of the judgment or refer the private party wholly or partly to civil proceedings. In the case of an acquittal the claim is always referred to civil proceedings.

For the defence it follows that even a joinder considered minor must be taken seriously as a strategic matter. A high damage amount affects not only the financial conviction but also the sentence and possible aggravating thresholds.

The private party bears the burden of proof for the alleged damage. This applies both to the basis and to the amount. Sweeping assertions are not sufficient; a comprehensible calculation of damages is required. From a legal perspective the amount is often the most effective point of attack, even where the conduct itself is established.

The criminal court can reduce the claim in amount, award it in full or refer it wholly or partly to civil proceedings. This referral is not a decision on the merits of the claim; it leaves the decision to the civil court.

For the defendant the referral to civil proceedings is in many cases the more favourable solution, because civil proceedings have their own standards and the amount is examined separately there.

Making good the damage before the judgment acts as a mitigating factor. In suitable cases it opens the way to a diversionary disposal or a conditional sentence. It is therefore an instrument of the defence in its own right and not only a civil law question.

From a legal perspective making good the damage should not be done hastily. A payment can be understood as an admission of the conduct, especially if it is declared without legal support. Anyone who first pays and later disputes harms their own position.

A written statement that clearly formulates the purpose of the payment avoids such a misunderstanding. It makes clear that the payment is made to settle the damage without the entire charge being acknowledged.