Right to refuse information
The right to refuse to provide information is the right of a witness to refuse to provide information on certain questions. As AVR abbreviated to be misleading, it is often confused with the right to refuse to testify, which is the right of a suspect. The witness has the right to refuse to provide information during the entire criminal proceedings , i.e. already with the preliminary investigation during the interrogation by the police , public prosecutor or investigating judge. The witness must be instructed beforehand about the right to refuse to provide information .
Germany
history
The right of a witness to refuse to answer certain questions was first recognized as legitimate in 1853 by a judgment of the Prussian Higher Tribunal . In an investigation into pimping and commercial fornication , a witness should be heard under oath whether he "had sexual intercourse with one of the accused women" . If answered truthfully, he should have expected sanctions for adultery ; if he had answered the question untruthfully in the negative, he would have committed perjury . The judges recognized the dilemma and decided that in such cases a witness "should be considered authorized to refuse to testify on the question which would contain the confession of a criminal act committed by him" . This further training in judicial law was adopted as Section 54 of the Imperial Code of Criminal Procedure of 1879 .
Following the homicides at Runway West in 1987, autonomous groups started the Anna and Arthur shut up campaign to persuade suspects and witnesses to refuse to cooperate with the police and the judiciary. This campaign is still being continued today by the Red Aid ; under the slogan Please don't say anything now! the “general refusal to give evidence [sic] to the state repressive organs” is recommended.
details
The right to refuse information is standardized in Germany in Section 55 of the Code of Criminal Procedure (StPO).
The right to refuse to provide information extends to those questioning questions which, if answered truthfully, put the witness or one of his relatives at risk of prosecution for a criminal offense or an administrative offense. According to the mosaic theory of the Federal Court of Justice, it also extends to questions whose truthful answer alone could not trigger criminal prosecution, but which relate to a section in a mosaic-like evidence building and therefore could contribute to a burden on the witness.
However, the right to refuse to provide information is not a subset of the right to refuse to testify . The witness must not wrongly refer to the right to refuse to provide information. He has to make the reference credible according to § 56 StPO at the discretion of the court, if necessary by oath. As a rule, the reference to the right to refuse to provide information in criminal proceedings leads to a note on the files of the public prosecutor, after which investigations may then be initiated in the direction of the witness or his relative. If the right to silence exerted in error, can under restrictive aspects according to § 70 2 StPO. Procedure adhesive (obsolete: Beugehaft) are arranged. However, only if the reference to the right to refuse to provide information is evidently wrong.
The right to refuse to provide information is the result of the principle that no one needs to incriminate themselves ( nemo tenetur se ipsum accusare ). Although this principle has constitutional status as a right equal to fundamental rights, the right to refuse to provide information - which only relates to certain questions - is weaker than the right to refuse to testify , which includes the entire testimony.
- The right to refuse information enjoys z. B. in a separate process also the legally convicted person. The latter can claim not to make any statements about the crime in order not to receive a more severe or further conviction.
- In the opinion of the Federal Court of Justice, the duty to inform is not necessary for every suspicion. Against this view, it is argued that the rule of law could be weakened, since the instruction provision in Section 55 (2) of the Code of Criminal Procedure could then be reinterpreted as a should-be provision. If the duty of instruction in Section 55 (2) of the Code of Criminal Procedure is violated, this is not a reason for revision in the view of established case law (so-called legal theory ).
- The witness can, however, be sworn in regardless of the assertion of the right to refuse to provide information. The oath then extends to the other statements.
Austria
In Austria , the special feature is that the constitution gives priority to the power of certain authorities to request information about who was driving a motor vehicle within the framework of the driver survey over the right to refuse to provide information.
Individual evidence
- ↑ Communications from the practice of the courts and the state lawyers' offices. In: Archive for Prussian Criminal Law . Vol. 2 (1854), pp. 409-426 (414-415).
- ↑ PDF: 1.41 MB, 50 pages . Brochure from the Federal Board of Red Aid eV Subject: “Please don't say anything now, refusal to testify”.
- ↑ Refusal to give evidence! Rote-hilfe.de.
