The private prosecution refers to proceedings in which the victim personally pursues certain offenses in court, without the public prosecutor’s office conducting preliminary investigations beforehand. According to § 71 StPO, the law explicitly names those offenses that are only prosecuted at the victim’s request, so that the affected person assumes the role of the prosecuting party and must actively pursue the proceedings. The initiative for criminal prosecution therefore lies entirely with the victim, who files the indictment, prepares evidence, and actively enforces their claims.

Scope of Private Prosecution

Private prosecution is legally structured such that certain criminal acts are only prosecuted if the victim takes action themselves. The law explicitly names these offenses. In these cases, no classic preliminary investigation is conducted by the criminal police and public prosecutor’s office. The proceedings only begin when the affected person files an indictment directly with the competent court.

The legislator deliberately chose this regulation. Offenses against honor often concern personal conflicts, the criminal prosecution of which is not necessarily in the public interest. Therefore, the victim alone decides whether judicial proceedings should take place.

Despite the lack of preliminary proceedings, there are limited possibilities for securing evidence. For example, if an insult or defamation has occurred via telecommunication or a computer system, the victim can apply to the court to have data secured or collected for the identification of the accused. The court then examines whether the requested measure is legally permissible and necessary.

In private prosecution, no preliminary investigation takes place. The court can only order individual investigative measures to identify the accused in narrowly defined cases. The responsibility for conducting the proceedings thus remains with the victim, while the court decides on the admissibility of the requested measures.

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Role of the Private Prosecutor in the Main Proceedings

In the main proceedings, the private prosecutor takes the place of the public prosecutor’s office as the prosecuting party. They present the accusation, file motions, and submit evidence. The court decides based on the indictment filed and the evidence taken during the hearing.

This position is far-reaching but not unlimited. The private prosecutor may only request coercive measures that are necessary to secure evidence or to enforce pecuniary claims. Measures involving a strong infringement of fundamental rights remain reserved for state authorities.

The law links the continuation of the proceedings to the active participation of the private prosecutor. If they do not attend the main hearing or fail to make necessary motions, it is assumed that they waive criminal prosecution. The court then dismisses the proceedings.

Typical procedural actions of the private prosecutor include:

• Filing and maintaining the indictment
• Submission of documents, communications, or other evidence
• Request for examination of witnesses
• Submission of final motions

This structure makes it clear that private prosecution is not a mere complaint, but a fully conducted judicial proceeding that cannot lead to a judgment without active litigation.

Special areas

Thanks to the size of our firm, we optimally cover a wide range of legal areas:

No family law. No divorces. No custody. No right of asylum. No claim for amounts under € 5,000.00. The exception to this is the mere enforcement of German judgments in Austria; we take on this regardless of the value in dispute.
 

Difference between Private Prosecution, Official Offense, and Authorization Offense

The classification of a criminal offense determines who conducts the criminal prosecution and who controls the proceedings.

In the case of an official offense, the law enforcement authorities must act as soon as an initial suspicion becomes known. The public prosecutor’s office initiates preliminary proceedings, files an indictment, and represents it in court. The victim’s will plays no decisive role in the initiation of the proceedings.

An authorization offense additionally requires formal consent from an authorized body. Only when this consent is available may the public prosecutor’s office conduct proceedings. Without this declaration, criminal prosecution remains blocked.

The private prosecution shifts responsibility even more strongly to the victim. There are generally no preliminary proceedings by the public prosecutor’s office. The victim must decide for themselves whether to file an indictment, prepare evidence, and pursue the proceedings further.

The practical significance of this classification is immediately apparent:

• For official offenses, the state organizes the entire criminal prosecution.
• For authorization offenses, the state requires formal consent.
• For private prosecution, the victim bears the initiative and the conduct of the proceedings.

These differences determine who prepares the evidence, who takes procedural steps, and who bears the risk that criminal prosecution will end due to inactivity.

Prerequisites for Private Prosecution

A private prosecution is only admissible if the law explicitly classifies the relevant offense as only prosecutable at the victim’s request. The victim must therefore check whether the specific offense actually belongs to this category. Otherwise, the court will reject the indictment.

The private indictment must be structured like a formal indictment. It contains a clear description of the act, its legal classification, and the available evidence. The court requires this information to assess whether main proceedings can be conducted.

If there are doubts about the entitlement to private prosecution, the victim must provide a comprehensible justification for this entitlement. This concerns, for example, their own affectedness or their status as an injured party.

Essential prerequisites include, in particular:

• A legally stipulated private prosecution offense
• A formally correct indictment with a statement of facts
• Specification and designation of existing evidence
• Justification of one’s own right to file a motion

These requirements ensure that the court has a sufficient basis for decision-making from the outset.

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Investigative Measures without Classic Preliminary Proceedings

In the case of private prosecution offenses, no preliminary investigation is generally conducted by the public prosecutor’s office or criminal police. The victim must therefore secure or obtain evidence themselves. This self-responsibility clearly distinguishes private prosecution from official offenses.

However, the law allows for targeted judicial support. For example, if an offense against honor has occurred via the internet or telecommunication, the victim can apply to the court to have data collected for the identification of the accused. The application must be as specifically justified as a motion for evidence.

The court then examines whether the requested measure is permissible and necessary. If the identity is established, the victim receives the corresponding information in writing. If an investigation is not possible or legally inadmissible, the court informs them accordingly.

This regulation creates a balance. While the victim bears responsibility for providing evidence, they receive judicial instruments to have anonymous perpetrators identified.

Deadlines and Formal Requirements for Private Prosecution

The private prosecution must be filed within certain deadlines. If a judicial application for identity determination was previously made, the six-week period begins from the notification of the information. If the victim misses this deadline, the court will reject the indictment.

The indictment must comply with legal requirements. It contains the designation of the accused, a precise description of the facts of the case, and the legal classification. Without these minimum details, the court cannot open main proceedings.

After the private prosecution is filed, the court serves the documents on the accused and grants them a period for comment. Only then does the court decide on scheduling a main hearing.

Key formal requirements are:

• Filing with the factually and locally competent court
• Compliance with statutory deadlines
• Complete details regarding the offense, the accused, and evidence
• Comprehensible justification of the right to private prosecution

These provisions ensure orderly proceedings and prevent unclear or belated indictments from leading to a main hearing.

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Rights and Obligations of the Private Prosecutor in the Main Proceedings

In the main proceedings, the private prosecutor generally has the same procedural rights as the public prosecutor’s office. They present the accusation, request evidence, and comment on the results of the evidence taking. The court decides exclusively on the basis of the indictment filed and the evidence taken during the hearing.

However, this position is limited. The private prosecutor may only request coercive measures if they are necessary to secure evidence or to enforce pecuniary claims. Interventions with significant intensity of fundamental rights can only be initiated by state authorities.

At the same time, the private prosecutor has clear duties to cooperate. They must actively conduct the process, designate evidence in a timely manner, and make the necessary motions. Omissions directly affect the progress of the proceedings.

Typical rights and obligations in the main proceedings are:

• Presenting and maintaining the indictment
• Requesting and designating evidence
• Participating in the taking of evidence and questioning witnesses
• Delivering a closing statement

Private prosecution is therefore not a simplified reporting procedure, but a structured court proceeding with its own procedural requirements. Careful preparation of evidence and motions is crucial to provide the court with a sound basis for decision.

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Dismissal of Proceedings due to Inactivity

The Code of Criminal Procedure directly links the continuation of proceedings to the private prosecutor’s participation. If they do not appear for the main hearing or fail to make necessary motions, the law interprets this behavior as a waiver of criminal prosecution.

In this case, the court dismisses the proceedings by decision. A decision on guilt or innocence is then not made. The proceedings end solely because the prosecuting party does not pursue them further.

This regulation ensures that private prosecution proceedings are only conducted if the prosecuting person actually takes over the conduct of the proceedings.

For practical purposes, this means:

• Personal appearance at the main hearing is required
• Procedural actions must be actively taken
• Inactivity directly leads to dismissal

Precisely the formal requirements and the immediate consequences of omissions show that a structured preparation of the proceedings is essential to avoid dismissal for purely procedural reasons.

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Overview of Private Prosecution Offenses

Private prosecution is only permissible for those offenses that the law explicitly designates as only prosecutable at the victim’s request. These offenses typically concern personal honor and social reputation.

The typical and most frequent private prosecution offenses include, in particular:

• Defamation according to § 111 StGB
  This includes asserting or spreading facts that are likely to make a person contemptible or damage their reputation, if these facts cannot be proven.
• Accusation of a previously settled criminal offense according to § 113 StGB
  It is punishable to accuse someone of a criminal offense that has already been legally decided or can no longer be prosecuted by law.
• Insult according to § 115 StGB
  An insult occurs when a person is degraded by abuse, ridicule, or other defamatory statements.

These actions can also occur via telecommunication or a computer system. In such cases, the victim can apply to the court to have data collected for the identification of the accused. The court examines whether the legal requirements for this measure are met.

The restriction to a narrow catalog of offenses shows that private prosecution is not a substitute for general criminal prosecution, but an instrument for judicial clarification of personal offenses against honor. At the same time, the legal classification of a statement as a punishable offense against honor already requires careful examination, because questions of evidence and procedural steps significantly determine the outcome of the proceedings.

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Relationship to Subsidiary Prosecution

Private prosecution and subsidiary prosecution address different initial situations, although both allow the victim an active role in criminal proceedings. Private prosecution concerns offenses that the law only allows to be prosecuted at the victim’s request. Subsidiary prosecution, on the other hand, only comes into consideration if the public prosecutor’s office does not continue already initiated proceedings.

In subsidiary prosecution, an official offense is initially present. The public prosecutor’s office may dismiss the proceedings, for example, because it does not assume sufficient suspicion. The victim then has the opportunity to continue the criminal prosecution themselves and act as the prosecuting party instead of the public prosecutor’s office. The proceedings therefore remain originally state-initiated criminal proceedings.

The decisive difference thus lies in the starting point:

• Private prosecution arises without prior preliminary investigation by the public prosecutor’s office
• Subsidiary prosecution requires preliminary proceedings that have already been conducted and dismissed

The practical role also differs. In subsidiary prosecution, the victim often relies on already existing investigative results. In private prosecution, they must prepare the evidence themselves from the outset.

For the affected person, the correct classification is essential. Whether a private prosecution is admissible or whether the continuation of dismissed proceedings must be requested instead, determines deadlines, jurisdictions, and the further course of the proceedings. Early legal review prevents proceedings from remaining inadmissible due to an incorrect approach.

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Private Prosecution and Pecuniary Claims

The private prosecution procedure serves not only the criminal law assessment of the act. The victim can also assert pecuniary claims in the same proceedings. These include, in particular, damages, pain and suffering compensation, or costs incurred due to the act.

The law allows the private prosecutor to file a separate motion for judicial orders regarding pecuniary claims in addition to the indictment. This motion must clearly state what damage has occurred and on what facts the claim is based. The court examines whether the prerequisites are met and decides on it together with the criminal law assessment or in a separate step.

The bundling of criminal prosecution and pecuniary claims has practical advantages. The victim can submit evidence only once and receives a judicial decision without additional civil proceedings. At the same time, this approach requires a precise presentation of the amount of damage and the basis of the claim.

Typical pecuniary claims in private prosecution proceedings are:

• Damages for directly incurred financial losses
• Pain and suffering compensation for demonstrable impairments
• Reimbursement of necessary expenses in connection with the act

The enforcement of such claims requires comprehensible evidence. Unclear or insufficiently substantiated claims are rejected by the court or referred to civil law. A structured preparation of documents and a clear quantification of claims therefore increase the likelihood that the court can decide on them in criminal proceedings.

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Your Benefits with Legal Assistance

Private prosecution requires active and formally correct litigation. The victim must legally classify the facts, secure evidence, and file the necessary motions in a timely manner. In addition, there is a real cost risk. If the proceedings do not end with a conviction, the federal government generally bears the costs. However, if the proceedings took place at the request of the private prosecutor, the private prosecutor may be ordered to reimburse the costs incurred as a result of their intervention.

Legal representation ensures that the indictment is complete in content and procedurally correct. The legal qualification of a statement as a punishable offense against honor requires a precise examination, because there are clear boundaries between permissible criticism, value judgment, and punishable factual assertion.

The preparation of evidence is also crucial. Messages, screenshots, or witness statements must be prepared in such a way that the court can use them and their probative value remains comprehensible.

Structured legal support offers, in particular:

• Assessment of whether private prosecution is admissible and advisable in the specific case
• Drafting of a formally correct and conclusive indictment
• Securing and legally sound preparation of evidence
• Representation in the main hearing and exercise of all motion rights
• Enforcement of pecuniary claims in the same proceedings

Private prosecution is an independently conducted criminal proceeding with clear formal requirements and cost risks. Early legal assistance helps to avoid procedural errors and to use available evidence purposefully, so that the court can make a comprehensive decision on the facts.

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FAQ – Frequently Asked Questions

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