In general, the joinder of a private party in criminal proceedings can cause an interruption of the period of limitation to the effect that no claim has to be filed at the civil court yet. This gives the injured party the possibility to lower his/her cost risk as well as simplifying the decision to file a claim based on the criminal proceedings and the judgment of the criminal court.
However, certain criteria have to be fulfilled:
- The damages claim in the joinder has to be sufficiently individualized (liable person) and concretised (claimed amount) by the private party within three years of the knowledge of the damage and the damaging party (limitation period).
- According to the Austrian Criminal Procedure Code, the private joinder has to be in written form.
- There has to be a connection between the criminal charge and the damages claim. The claim must be based on the same facts and circumstances, however, it does not need to be based on the same legal grounds. The legal classification and sentence of the criminal court is thus not of importance for subsequent civil proceedings.
- The subsequent civil claim – in case the private joinder has not been decided upon – has to be filed at the civil court within a reasonable time after the judgment of the criminal court has been rendered.
- Moreover, the private joinder and the civil claim must both address the same financial disadvantage.
Latest Supreme Court decision (OGH 10 Ob 45/17s, 14 November 2017)
In its latest decision on private party joinders, the Supreme Court had to decide on the validity of a joinder, and thus its interruption effect for the civil proceeding, in a case with 7,880 Claimants of which only one name has been explicitly mentioned in the written submission. With regard to the rest, only reference was made to their names and claimed amounts on an additionally enclosed CD. The Claimant in the respective Supreme Court case was one of those with only his/her name on the CD.
The main question that arose was, whether a mere reference to an enclosed CD replaces the required written submission of the private joinder and if this serves as sufficient individualization and concretization. The court's response was as follows.
The private joinder was not rejected in the criminal proceedings. In addition, the names and claimed amounts of damages have been put on paper by the Prosecution and have subsequently been registered/taken into the official criminal file. Hence, the requirement of written form has been fulfilled by this act. As a result, the private joinder did cause an effective interruption of the limitation period.
Summarized, it should already be sufficient in future cases to argue a sufficient individualization, concretization and substantiation of the private joinder in an exhibit to a submission as long as this is written on paper and becomes part of the official criminal file.