The Penal Procedure Code

In accordance with Section 395 of the Penal Procedure Code, trafficked persons may act as private accessory prosecutors and hire the services of a lawyer in the accessory private prosecution. This legal right is also provided for financially.
Trafficked persons have certain rights in criminal proceedings, just like all witnesses who can act as private accessory prosecutors.
These rights are defined under Section 397 of the Penal Procedure Code.
By participating in the proceedings, the victims have the opportunity to actively influence them. In this context, it is fundamental to prevent secondary victimisation.

However, it is rare that trafficking in human beings be the object of prosecution. It is much more common, for instance, that the criminal prosecution authorities focus on simpler criminal offences, such as smuggling or pimping, according to Section § 180a of the Penal Procedure Code. This is not unproblematic, because those criminal offences cannot be the object of private accessory prosecution.

In such cases, the appointment of a legal counsel must be assessed and approved in accordance with Section 406 et seqq. of the Penal Procedure Code. However, this legal counsel does not have the same powers as the representative of a private accessory prosecutor. According to Section 68 of the Penal Procedure Code, a legal counsel may also be appointed with the approval of the public prosecution. However, this type of legal representative can only explain the rights and duties of the witness during the proceedings and receives very little pay.

If trafficked person are accused of having committed offences themselves, e.g. violations of legislation on residence permits, then the public prosecution may abstain from prosecuting certain offences committed by the victims according to Section 154c para. 2 of the Penal Procedure Code. The prerequisite in this context is that the prosecution found out about the case of trafficking in human beings from the trafficked person’s complaint. Even if the wording of Sections 232 et seqq. of the German Criminal Code are not drafted in the sense of the provision of Section 154 c para. 2 of the Penal Procedure Code, it is possible to drop charges in cases of trafficking in human beings. However, this decision can only be struck at the discretion of the public prosecution. The public prosecution must prove whether sanctions are indispensable on the basis of the severity of the offences in question.

The 3^rd Act Reforming the Protection of Victims’ Rights has strengthened the protection and counselling provided to victims of crime when they stand trial (cf. the section on the Act Reforming the Protection of Victims’ Rights).
Many of the provisions that apply to the rights and duties of trafficked persons during criminal proceedings are listed in the Penal Procedure Code.

Important regulations include the following:

Assessment of the need for protection:

According to Section 48 of the Penal Procedure Code, the specific needs for protection of the witnesses must be assessed for the entire duration of the criminal proceedings. For instance, an assessment as to whether victims must be interrogated separately from other parties, especially the defendants, must always be carried out (Section 247 of the Penal Procedure Code), as well as whether an interrogation by means of video (Section 247a of the Penal Procedure Code) must take place. Moreover, whether the public may be present during the interrogations must be analysed (Section 171b of the Judicial Systems Act), as well as if specific questions concerning the private lives of the witnesses can be foregone. The protection of children and youths must always be taken into account.

Rights to information and disclosure:

The 3^rd Act to Reform the Protection of Victims’ Rights also grants the victims extensive rights to information and disclosure during the criminal proceedings. 

For example, according to Section 158 of the Penal Procedure Code, the filing of the victims’ charges must be confirmed in writing.

According to Section 406d of the Penal Procedure Code, upon the victims’ request, information regarding any abandonment of the proceedings, the place and time of the main proceedings, the charges and the outcome of the court proceedings must be provided.             
Upon the request of victims acting within the context of a private accessory prosecution, the necessary documents must be translated if so required so they may understand their procedural rights.

This information must also be disclosed to them if the main proceedings do not take place or if the victims are not heard.

The victims must also be informed of their rights outside the criminal proceedings, e.g. concerning the possibility of claiming damages before a civil court or the regulations under the Protection Against Violence Act, the Victims’ Compensation Act or other compensation options. According to Section 406h of the Penal Procedure Code, the criminal prosecution authorities must also inform the victims about any support and help options they are entitled to from victim support facilities, for instance in the form of counselling or psycho-social assistance during the proceedings. This information must be provided in a timely manner, in writing, and in a language that the victims can understand.

Legal counsel:

During interviews, all victims have the right to have a legal counsel. In specific cases, the cost of legal representation can be covered by the court cashier in accordance with Section 68 b para. 2 of the Penal Procedure Code.

Victims who take the stand as witnesses can also be accompanied by a person they trust in accordance with Section 406f para. 2 of the Penal Procedure Code, as long as this does not impact the investigations. This could be the case for instance in the event of this person of trust being examined as a witness in the same proceedings, or if said person has a close relationship with the defendant(s). In principle, this can be authorised without a prior request. However, the fact that a person of trust shall be accompanying the victim should be stated in advance.

The Penal Procedure Code also regulates the duties of the witnesses:  
These are defined in Sections 48 et seqq. of the Penal Procedure Code. These duties include the obligation to appear, i.e., the obligation to go to the appointments summoned by the investigation authorities and the duty to make truthful statements. Under certain circumstances, the victim may, however, refuse to make a statement.

In addition, professionals bound to professional secrecy such as lawyers, doctors or psychologists have the right to refuse to give evidence on the basis of their jobs, in accordance with Section 53 of the Penal Procedure Code. Other professionals such as interpreters who are present at consultations with the lawyers also have the right to refuse to give evidence in accordance with Section 53a of the Penal Procedure Code.
Workers at counselling centres for victims of human trafficking do not have the right to refuse to give evidence. In practice, this is often problematic because the counsellors are obliged to inform their clients from the very beginning of their relationship that they may have to take the stand as witnesses in court. This can affect the relation of trust between the victims and counsellors. In addition, acting as witnesses in court can be dangerous for the counsellors.
For years now, KOK and its member organisations have therefore been demanding the right to refuse to give evidence for the workers at specialised counselling centres.

The information provided here is partly taken from "Practical guide for counselling victims (especially trafficked persons) on their rights in criminal proceedings with particular focus on the current changes brought about by the 3rd Act to Reform the Protection of Victims' Rights'", by Christina Clemm, on behalf of the KOK. This guide provides detailed descriptions of the rights and duties described above, as well as other rights in the criminal proceedings.