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2.1.2 Options for Victim Support within the Legal System
Joint Action
If a case goes to trial, charges are pressed by the state, not the victim. For this reason, the victim’s interests and the interests of the state are not always the same. »Joint action« (Sect. 395-402 of the Criminal Code) permits crime victims to take an active part in court proceedings. (15) It provides the joint plaintiff and his/her lawyer with certain rights, such as accessing case files, filing petitions concerning the investigation, directly questioning the defendant, submitting evidence and objecting to expert testimonies and judges assigned to the trial. The plaintiff ’s lawyer supports his/her client when giving statements in court and protects him/her from impermissible or aggressive questions from the defense lawyer. Joint action is only allowed when individuals have suffered from attempted murder or homicide, assault and battery, offenses against sexual identity and the like. (16) Joint action is applicable in the majority of hate crime offenses that victim support organizations deal with. Since witnesses often find themselves in the unpleasant role of witnesses without a pro-active role in lawsuits, joint action should be considered a cornerstone for the development of litigation strategies, in that it enables hate crime victims to take a pro-active role. Furthermore, access to case files provides the victim with the ability to learn about the offender’s background and attitudes, even if the offender has the right to refuse to testify to his/her motives in the courtroom. (17) »Without joint action, many lawsuits would have been discontinued or the right-wing background would not have been brought up. Especially in a difficult political environment, like in the 1990s, the instrument of joint action is indispensable.« (18)
Benefits and compensation for victims
All crime victims in Germany have the opportunity to apply for an »adhesive procedure« (Sect. 403-406c of the Code of Criminal Procedure). In this procedure, the victim’s civil rights claims, like for instance, the redress of material damages inflicted by the perpetrator, can be brought forth during criminal proceedings. The preconditions are less demanding than in civil actions; economic risks are low; no lawyer is required. Furthermore, the accused is more likely to settle the claims in an adhesive procedure than during a civil law proceeding. (19) However, the adhesive procedure has to be accepted by the court and is dependent on the actual outcome of the criminal lawsuit.
Victims of violent crimes can also try to receive compensatory damages in a civil action. Civil lawsuits usually follow criminal proceedings and provide an additional opportunity to lodge financial claims against the perpetrators. These civil lawsuits are subject to different procedural rules than those applicable to criminal proceedings. In the meantime, a third option allows victims of right-wing assaults to apply for compensation. The National Parliament decided to establish a special fund under the auspices of the Federal Office of Justice to support the hardships of victims of right-wing violence in a fast and uncomplicated manner. (20) Anyone who has suffered physical or emotional damages as a result of a right-wing attack can apply. This includes family members of people killed by right-wing perpetrators and people injured while trying to assist victims of right-wing violence. The only precondition is that the crime had an obvious right-wing background. It is not necessary for the police to have identified the perpetrators. The individual receiving this compensation from the state is required to cede to the state any civil remedies they might have against the person or persons responsible. The state, then, in its discretion, may choose whether or not to pursue those remedies against an identified offender. (21)
According to the Victim Compensation Act, all victims of a violent act can claim compensation for medical treatment and related services like replacement of glasses, but no compensation for damages to property. Filing a criminal complaint against the perpetrators is a precondition for compensation. Moreover, people who suffered injuries while assisting the victim are eligible for compensation. The claim is restricted to citizens and other persons who have a residence permit. This excludes many refugees and undocumented migrants, who belong to the group most frequently affected by hate crimes and who usually have limited access to the health system. Finally, there are also private initiatives that financially support victims of right-wing or racist attacks. The CURA Fund for Victims (Opferfonds CURA), coordinated by the Amadeu Antonio Foundation (Amadeu-Antonio-Stiftung), is one example. Dependent on private donations, the fund pays for medical treatment that is not covered by health insurance (particularly for refugees), rehabilitation following an assault (i.e. psychological counseling), legal costs and other expenses linked to the assault. It also assists in cases of financial emergencies and the repair of property damaged by physical attacks.
Other Forms of Legal Aid
The White Circle (Der Weiße Ring), a nation-wide NGO, provides a voucher covering initial legal counseling for crime victims. The Foundation against Right-wing Extremism and Violence, (Stiftung contra Rechtsextremismus und Gewalt, DAV) founded in 2000 by the German Bar Association, seeks to support victims of right-wing extremist or politically motivated violence by giving them access to legal representation to claim their legal rights. The victim’s lawyer can turn to the foundation in order to receive a cash advance of 300 euros. After the legal proceedings end, the foundation covers the lawyer’s remaining fee, minus any fees available from state funds or private legal defense insurances, and reasonable contributions by the victim. Alternatively, crime victims with a low income can claim »counseling benefits« from state institutions. Victims, defendants and other parties involved in lawsuits, regardless of their citizenship status, can claim »assistance for legal fees.« It will be granted at discretion of the respective local court, provided the applicant can prove economic hardship and that he/she has a reasonable chance of winning the lawsuit. (22)
15. The instrument »joint action« is similar to the legal provision of »subsidiary prosecution« in Poland (see Chapter 2.2.2).
16. A joint action is not an option if the offender is under 18 years old and is tried under juvenile law. In proceedings for older youth (between 18 and 21), a joint action is still possible, even though they are being tried under juvenile law. This also applies to proceedings where youth and older youth are being tried concurrently. However, a joint action against an older youth is only valid during the trial portion of the proceedings.
17. Opferperspektive e.V. 2007. Perspektiven nach einem rechten Angriff: Ihre Rechte und Möglichkeiten, Potsdam. p. 15.
18. Interview with Together.
19. Herbst, Kai-Uwe; Plüür, Georg 2008. Das Adhäsionsverfahren, Berlin, p. 1-2.
20Bundesamt für Justiz 2007. Härteleistungen für Opfer rechtsextremistischer Übergriffe, Berlin.
21. Bundesamt für Justiz 2007. Merkblatt Entschädigungsleistung aufgrund rechtsextremistischer Übergriffe, Berlin, p. 3.
22. All information is based on Opferperspektive’s legal aid manual: Opferperspektive e.V. 2007. Perspektiven nach einem rechten Angriff, p. 17.
(OPP)
