Witness assistance

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As witnesses counsel refers to the legal counsel of a witness in civil and criminal law.

Right to assistance

The Federal Constitutional Court ruled as early as 1974 that the exclusion of legal counsel from the hearing of witnesses could violate the right to a fair trial contained in the rule of law . The witness must not be made “the mere object of a trial”, even if he is not a party to the trial, but only has a procedural function as evidence . In addition, such an exclusion can violate a lawyer - who according to § 3 BRAO has the right to appear in court in legal matters of all kinds - in his freedom to practice his profession .

This principle justifies - in the absence of an express legal regulation in the ZPO - the admissibility of a witness in civil proceedings to this day .

For criminal proceedings , the Witness Protection Act ( ZSchG ), with effect from December 1, 1998, expressly regulated in Section 68b of the Code of Criminal Procedure that a witness has the right to seek assistance. A witness must be allowed to be present at the hearing.

The exclusion of a witness in criminal proceedings is regulated in Section 68b, Paragraph 1, Sentence 3 ff. Of the Code of Criminal Procedure. According to this, the witness can generally be excluded if " certain facts justify the assumption that his presence would not only negligibly impair the orderly gathering of evidence ". This should usually be the case, though

  1. the adviser is involved in the offense to be investigated or in a related benefit, obstruction of punishment or stolen goods,
  2. the testimony of the witness is influenced by the fact that the counsel does not only appear to be committed to the interests of the witness, or
  3. the adviser uses the knowledge obtained during the interrogation for blackout acts within the meaning of section 112 (2) number 3 or passes them on in a manner that endangers the purpose of the investigation.

In particular, the reason for exclusion in No. 2 has met with considerable criticism due to its possible unlimited application.

Exclusion was already possible in principle under the previous legal situation. a. if the latter tries to complicate or hinder the gathering of evidence. However, this requires a legal basis . In the event that the provisions set out in §§ 176 ff. GVG were not sufficient, the Federal Constitutional Court called on the legislature to make appropriate regulations.

Position of witness

In its decision from 1974, the Federal Constitutional Court ruled that a legal adviser cannot have more powers than the witness himself. Accordingly, the adviser has no independent application rights, he has no right to inspect the files or to be present outside the hearing of the witness ( Section 58 Paragraph 1 Sentence 1, Section 243 Paragraph 2 Sentence 1 StPO). He is not a party to the proceedings and therefore does not appear in robe for the hearing.

Only the injured party has extended rights in accordance with §§ 406e ff. StPO. He can inspect the files for the injured party and has the right to be present during the questioning.

costs

The witness himself has to bear the costs of the witness.

In 1998, however, the Witness Protection Act created the possibility for criminal proceedings to assign a lawyer to a witness with the consent of the public prosecutor's office for the duration of the interrogation , provided that it is evident that the witness cannot exercise his powers during the interrogation himself and his interests worthy of protection cannot be taken into account in any other way ( Section 68b (2) StPO).

There has been no reimbursement of costs in civil proceedings due to the lack of legal regulation.

literature

  • Detlef Burhoff: Witness support in the investigation. In: Practice Tax Criminal Law (PStR) year 2001, p. 106 ff. ( Internet reference )
  • Gerhard Hammerstein: The lawyer as the support of "endangered" witnesses. In: New Journal for Criminal Law (NStZ) year 1981, issue 4, p. 125.
  • Detlef W. Klingel / Clemens Alexander Müller: The legal witness in criminal proceedings . NJW 1/2011, 23
  • Margit Schlag: The rights of witness support - especially from the point of view of access to files and the right to be present. In: Bernd Luxenburger, Manfred Birkenheier: Opuscula Honoraria: Egon Müller for his 65th birthday. Alma Mater, 2003. ISBN 3935009062 . ( Internet reference )
  • Sven Thomas: The witness in the criminal process - At the same time a contribution to BVerfGE 38, 105 . In: New Journal for Criminal Law (NStZ) year 1982, issue 12, p. 489.

swell

  1. ^ Federal Constitutional Court, decision of October 8, 1974, Az. 2 BvR 747/73; BVerfGE 38, 105 ( Internet reference )
  2. ↑ Act amending the Code of Criminal Procedure and the Federal Fees Regulations for Lawyers (Act on the Protection of Witnesses During Examinations in Criminal Proceedings and to Improve Victim Protection; Witness Protection Act - ZSchG) of April 30, 1998, Federal Law Gazette I p. 820
  3. ↑ Klengel, Jürgen Detlef W .; Müller, Clemens A .: The legal witness in criminal proceedings. In: NJW 2011, p. 23 ff.
  4. ↑ Federal Constitutional Court, decision of April 17, 2000, Az. 1 BvR 1331/99 ( web link )
  5. ^ Federal Constitutional Court, decision of April 12, 1983, Az. 2 BvR 307/83; NStZ 1983, 374
  6. ^ Zöller / Greger, Commentary on the ZPO, 31st edition, para. 12 on § 373 ZPO