Right to refuse to testify

from Wikipedia, the free encyclopedia

The right to refuse to testify is the right of a suspect not to have to provide any information about the alleged facts in criminal proceedings or in the case of administrative offenses. The right to refuse to testify is to be distinguished from the right to refuse to testify in favor of witnesses under certain conditions . In practice, the waiver of the right to remain silent is almost never to the advantage of the accused.

European Union

Directive 2012/13 / EU on the right to instruction and information in criminal proceedings is intended to further improve and strengthen the Union-wide maintenance and further development of an area of ​​freedom, security and justice. Directive 2010/64 / EU on the right to interpreting and translation in criminal proceedings was the first EU-wide standardization of national minimum standards under criminal procedure law.

In Art. 3 para. 1 let. e.) of Directive 2012/13 / EU it is now expressly stated that the suspect or the accused must be instructed by the national competent authorities immediately and verifiably in oral or written form and in simple and understandable language about the right to refuse to testify. The instruction must be given in such a way and at a time that the suspect or the accused can effectively exercise these rights (Art. 3 Para. 1).

Directive 2012/13 / EU on the right to instruction and information in criminal proceedings is to be implemented in national law by the EU member states by June 2, 2014 (Art. 11 (1) of the Directive).

Germany

According to § 136 and § 163a of the Code of Criminal Procedure (StPO) as well as § 55 OWiG , a suspect must be informed about the offense or administrative offense that he is charged with before the start of his first hearing . He must be pointed out "that he is free according to the law to comment on the accusation or not to testify on the matter", especially if he "would have to incriminate himself by making a truthful statement," and at any time, even before the questioning, to question a lawyer to be chosen by him . According to Section 163a, Paragraph 4, Sentence 2 of the Code of Criminal Procedure , an accused can exercise this right at the police hearing on the alleged offense. He is also to be instructed that he can apply for individual evidence to be released. In the case of interrogations by the public prosecutor's office, it must also be explained which criminal provisions are applicable.

According to Section 243, Paragraph 5, Clause 1 of the Code of Criminal Procedure, the accused must be advised of their right to refuse to testify at the beginning of the trial, even if they have already become aware of this , for example from the police and / or the public prosecutor's office .

Violations by the law enforcement authorities of these regulations can lead to a ban on the use of evidence . They are an expression of the general principle in criminal proceedings that no one is obliged to incriminate themselves ( nemo tenetur se ipsum accusare ). They are supplemented by the right of witnesses to refuse to provide information with regard to questions the answering of which would expose the witness or a close relative to the risk of criminal prosecution ( Section 55 StPO).

If a foreign citizen is arrested , he is also subject to Article 36 (1) lit. b, sentence 3 of the Vienna Consular Law Agreement to immediately instruct that he can request notification of the consulate of his home country and that his communications will be forwarded to the consulate.

Austria

In Austria the right to refuse to testify is based on the right of an accused to claim respect for his private life in accordance with Article 8 of the ECHR. Victims, on the other hand, such as those of sexual punishment, can refuse to testify if they run the risk of endangering their privacy by revealing intimate details of the incident.

Great Britain

In the UK , there is no right to silence , but since the Criminal Justice and Public Order Act 1994 , it can be construed against the accused for no apparent reason

  • only invokes something in court proceedings about which he remained silent in the preliminary investigation, although he could have testified
  • refused to testify or did not answer questions
  • does not disclose any objects, substances, clothing or similar that were carried during the arrest
  • at the time of arrest, did not explain why he was there.

Switzerland

According to Art. 31 of the Federal Constitution of the Swiss Confederation (see also BGE 130 I 126), in the event of a deprivation of liberty, every person has the right to be informed immediately and in a language they understand about the reasons and their rights. These rights include, among other things, the right to refuse to testify, the right to control the deprivation of liberty by a judge within a reasonable period of time and the right to notify the next of kin. Until the Swiss Code of Criminal Procedure came into force in 2011, it was a matter of dispute whether this includes the right to consult a lawyer immediately.

According to the Swiss Code of Criminal Procedure , according to Art. 158 Paragraph 1, every accused person must be informed about the initiation of proceedings against them and the subject matter of the proceedings at the beginning of the first interview by the police or public prosecutor's office (lit. a), about the right to testify and to refuse to cooperate (lit.b), about the right to appoint a defense or, if necessary, to request an official defense (lit.c) and about the right to be able to request a translator (lit. d). If the person is arrested, these instructions must be given immediately after the arrest (Art. 219 Paragraph 1 StPO). If this information is not given, the corresponding statements are absolutely irrelevant (Art. 158 Para. 2 in conjunction with Art. 141 Para. 1 StPO).

Liechtenstein

In the Principality of Liechtenstein , according to Section 128a of the Code of Criminal Procedure (StPO), it has been mandatory since 2007 to instruct every arrested person.

" Every arrested person is to be informed upon arrest or immediately afterwards about the suspicion against him and the reason for his arrest as well as that he is entitled to notify a relative or another person of trust and a defense attorney and that he has the right not to testify. He must be made aware that his testimony can serve his defense, but can also be used as evidence against him. "

See also the wording of the “ Miranda Warning ” based on the Miranda judgment in the USA .

United States

In the United States , the right to remain silent arises from the 5th Amendment to the Constitution . The duty of the police to point out this right goes back to the Miranda v. Arizona back. However, the trend is towards creating exceptions. In 1984 the Supreme Court introduced an exception to the Miranda warning, the so-called "public safety exception". In 2011, the US Department of Justice decided that this exemption would apply by default in proceedings against terror suspects.

literature

  • Bernhard Kramer: Basic concepts of criminal procedure law: investigation and procedure . W. Kohlhammer Verlag, 2009, ISBN 3-17-020458-0 .
  • Hubert Hinterhofer: Witness protection and the right to refuse to give evidence in Austrian criminal proceedings . Facultas Verlag, 2004, ISBN 3-85114-832-0 .
  • Volker Krey: German Criminal Procedure Law: Main Hearing, Law of Evidence, Court Decisions, Definition of the Offense, Legal Validity, Legal Remedies and Remedies, Volume 2 . W. Kohlhammer Verlag, 2007, ISBN 3-17-019513-1 .
  • Stefan Seiler: Criminal Procedure Law . Facultas Verlag, 2009, ISBN 3-7089-0407-9 , p. 69.

Web links

Wiktionary: Right to refuse to testify  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Directive 2012/13 / EU of the European Parliament and of the Council of May 22, 2012 on the right to instruction and information in criminal proceedings (PDF) (OJ L 142/1).
  2. ↑ Directive 2010/64 / EU of the European Parliament and of the Council of October 20, 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280/1).
  3. ^ Refusal to give evidence in the traffic law dictionary.
  4. ↑ Bernhard Kramer: Basic Concepts of the Law of Criminal Procedure , p. 32.
  5. ↑ Bernhard Kramer: Basic Concepts of the Law of Criminal Procedure , p. 26.
  6. ↑ Volker Krey: German Criminal Procedure Law , p. 17.
  7. ↑ Hubert Hinterhofer: Witness protection and the right to refuse to give evidence in Austrian criminal proceedings , p. 339.
  8. ↑ Part III, Inferences from accussed's silence 34-39 : Criminal Justice and Public Order Act 1994 The National Archives, legislation.gov.uk, accessed June 2, 2016
  9. ↑ Tom Bucke, Robert Street, David Brown: Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994. National Criminal Justice Reference Service NCJRS, 2000. Abstract
  10. ↑ Linguee.de Dictionary English-German
  11. ↑ Your rights in court in England and Wales. European e-Justice Portal, September 29, 2015.
  12. ^ Ulrich Häfelin , Walter Haller : Swiss Federal State Law . 6th edition. Schulthess , Zurich 2016, ISBN 978-3-7255-7411-7 , p. 246, margin no.861 .
  13. ↑ § 128a StPO inserted by LGBl 292/2007.
  14. ↑ https://www.theguardian.com/commentisfree/2013/apr/20/boston-marathon-dzhokhar-tsarnaev-mirnada-rights