Higher Regional Court (OLG) - Frankfurt, Judgment as of 9/9/2004
File number 12 U 116/03

Summary

The review court in civil proceedings dismissed the defendant’s appeal against a judgment of the court of first instance ordering him to pay DM 85,000 as damages for pain and suffering for rape.

In 2000, the defendant broke into the house of the new boyfriend, X, of his recently separated wife, Y. He shot Mr X in front of the woman, raped her in the presence of the dead body, and threatened to kill her as well. He then tied the woman up and left the house. She was set free after several hours.

For these crimes, the defendant was sentenced to imprisonment for 14 years.
For the rape, he was ordered to pay damages for pain and suffering in the amount of DM 85,000. He appealed against this decision. The appeal was dismissed by the review court. The damages for pain and suffering in the amount of DM 50,000 could not, in the opinion of the court, be challenged by the defendant for the simple reason that, in the criminal proceedings, he had already acknowledged the plaintiff’s claim to damages for pain and suffering in this amount. This had also been taken into account to reduce the sentence. But even the rest of the amount awarded was justified in the court’s opinion by the extreme cruelty of the crime.

The review court held that the court of first instance had not erred in not questioning the injured party again, as was petitioned for by the defendant, but had been allowed to base its decision on the findings of the factual events as per the criminal judgment. The court also took into account, to the prejudice of the defendant, his conduct after the crime: that he trivialised the crime and that he repeatedly confronted the injured party with the events, for example by not paying the damages for pain and suffering despite having acknowledged the claim to such in the criminal proceedings. The court also did not find it necessary to reduce the damages for pain and suffering on account of the defendant’s poor financial situation since it is not compelled to do so. In light of the gravity of the act, the review court saw no reason to shield the defendant from economic hardship.

Decision in full text: