Witness Protection Harmonization Act

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Basic data
Title: Law on Harmonizing the Protection of Vulnerable Witnesses
Short title: Witness Protection Harmonization Act
Abbreviation: ZSHG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Security
References : 312-14
Issued on: December 11, 2001
( BGBl. I p. 3510 )
Entry into force on: December 31, 2001
Last change by: Art. 2 para. 12 G of February 19, 2007
( Federal Law Gazette I p. 122, 140 )
Effective date of the
last change: 		January 1, 2009
(Art. 5 para. 2 G of February 19, 2007)
Please note the note on the applicable legal version.

On December 31, 2001, the Witness Protection Harmonization Act (ZSHG) created a national legal basis for police witness protection .

Legal political significance

Witnesses who, because of their personal proximity to the perpetrators or for other reasons, have information about their involvement and the planning and execution of the crime are, on the one hand, important evidence in criminal proceedings . According to Section 48 (1) of the Code of Criminal Procedure ( StPO) , they are fundamentally obliged to appear in court and give evidence. On the other hand, those people against whom the proceedings are directed try to prevent incriminating statements. Witnesses who have agreed to testify to the law enforcement authorities and their relatives are therefore usually exposed to a particularly high risk to life or limb. In order to gain and maintain the willingness and ability to give evidence of such important witnesses, the law enforcement authorities should offer them comprehensive and effective protection.

content

applicability

The ZSHG does not affect the provisions of federal and state law to avert danger to the person to be protected ( Section 2 (1) sentence 2 ZSHG). Witness protection measures according to other federal laws or to avert danger according to the police and regulatory law of the federal states are therefore still possible. Sections 7 and 66 BKAG contain special regulations for witness protection by the Federal Criminal Police Office . This is responsible "for outstanding international witness protection cases, either at the request of other states or at the request for the prosecution of criminal offenses by competent interstate and supranational bodies (for example an international criminal court), which are time-consuming and personnel-consuming" and originally for operational witness protection competent federal states cannot be provided.

Witness protection measures

Protected group of people

Protection can be given to persons without whose information the investigation of the facts or the determination of the whereabouts of the accused would be hopeless or significantly more difficult in criminal proceedings if there is a concrete danger to their life, limb, health, freedom or essential assets. An abstract hazard is not enough. A risk analysis must be carried out in each individual case.

In addition to the witness and co-accused ready to give evidence, this also applies to relatives within the meaning of Section 11, Paragraph 1, No. 1 of the Criminal Code (StGB) and other related persons. The decision on the start, type, scope and termination of such measures requires a proportionality test in each individual case, in which, in particular, the seriousness of the offense, the reason for the risk, the accused's rights of the person against whom testimony is to be made and the effects of witness protection are taken into account are. The termination of the criminal proceedings does not only lead to the lifting of the witness protection measures if the threat persists ( § 1 ZSHG).

The protective measures require the consent of the person to be protected and their suitability. Aptitude may be lacking, for example, if the person to be protected provides false information, does not keep promises or is not able to do so, is not prepared to maintain secrecy or commits criminal offenses.

Jurisdiction

The police witness protection services are responsible for witness protection ( Section 2 ZSHG). The locally responsible police stations work together at federal and state level with the coordination offices at the Federal Criminal Police Office and the state criminal police offices . The measures should not be carried out by police officers who are directly involved in the investigation .

Witness protection measures are subject to secrecy by the officials involved within the meaning of Section 11 (1) No. 2 StGB as well as the persons obliged to maintain secrecy under the Act on the Formal Obligation of Non- Officials ( Section 3 ZSHG, Section 11 (1) No. 4 StGB) .

Concrete protective measures

On the one hand, public bodies are entitled to block or not to transmit personal data of the person to be protected at the request of the witness protection service ( § 4 ZSHG). On the other hand, at the request of the witness protection agency, public bodies may produce certificates or other documents for the establishment or maintenance of a temporarily changed identity (camouflage documents) with the data communicated by the witness protection agency for a person to be protected ( Section 5 (1) sentence 1 ZSHG). However, changes in the civil status register are excluded (Section 5 (1) sentence 4 ZSHG). Identity cards and passports may only be issued to persons who are German within the meaning of Art. 116 of the Basic Law (Section 5, Paragraph 1, Clause 5 of the ZSHG).

Protected witnesses are not only entitled in criminal proceedings to refuse to provide information on the person during an interrogation or to only provide information about a previous identity and, contrary to Section 176 (2) sentence 1 of the Courts Constitution Act (GVG), completely or partially cover their face ( Section 68 StPO) , but also in other legal proceedings and proceedings before a parliamentary committee of inquiry ( Section 10 ZSHG). Witness protection measures in prisons are carried out in agreement with the head of the facility ( Section 11 ZSHG).

The accommodation of endangered witnesses in another location is a core measure in the witness protection concept. Under the cover identity, the protected witness can therefore participate in legal transactions and, for example, rent a new apartment or enter into an employment relationship.

As soon as the legal registration of residents has been entered in the register of residents in the event of a change of residence and a residence has thus been generated by the system, a correspondingly modified election notification is issued to establish or maintain a changed identity in upcoming federal, state and local elections .

When the witness protection is terminated, the measures taken according to §§ 4 and 5 ZSHG are lifted. The witness protection service withdraws any cover documents ( § 6 ZSHG).

literature

  • Christian Siegismund: The protection of endangered witnesses in the Federal Republic with special consideration of the law for the harmonization of the protection of endangered witnesses (witness protection harmonization law ZSHG) . Osnabrück, Univ.-Diss. 2009. Link to download PDF (2.75 MB)

Web links

Individual evidence

  1. ^ Draft of a law regulating the protection of endangered witnesses BT-Drs. 14/638 of March 23, 1999
  2. ↑ Wolfgang Sielaff: "Prohibition to testify" by the perpetrator. Criminology 1986, 58 ff.
  3. ^ Walter Buggisch: Witness threat and witness protection in Germany and the USA. Research on criminology and sanctions law, Volume 11, Berlin 2001, p. 147
  4. ^ Klaus Zacharias: The endangered witness in criminal proceedings. Berlin 1997, p. 160
  5. ↑ Ulrich Eisenberg : Witness protection programs and investigation of the truth in criminal proceedings, in: Edda Wesslau, Wolfgang Wohlers (ed.): Festschrift für Gerhard Fezer , 2008, p. 193 ff.
  6. ^ Draft of a law to restructure the Federal Criminal Police Office Act BT-Drs. 18/11163 of February 14, 2017, pp. 78, 89 f.
  7. ↑ Draft of a law regulating the protection of endangered witnesses - printed matter 14/638 - further statement of the federal government BT-Drs. 14/6279 (new) (on printed matter 14/638), p. 9
  8. ↑ Protection of witnesses in criminal proceedings: On the legal situation in Germany Scientific services of the German Bundestag , status of March 22, 2018, p. 5
  9. ↑ Draft of a law regulating the protection of endangered witnesses - printed matter 14/638 - further statement of the federal government BT-Drs. 14/6279 (new) (on printed matter 14/638), p. 9
  10. ↑ cf. for Rhineland-Palatinate: List of witness protection agencies.Retrieved on March 7, 2020.
  11. ↑ cf. for the fight against human trafficking also cooperation agreement between the police, prosecution, counseling services, immigration authorities, social services and employment agencies for the protection of victims witnesses and victims witnesses in human trafficking cases Joint announcement of the Bavarian State Ministry of the Interior, Justice and Labor and Social Affairs, Family and Women of 24 March 2004, AllMBl. 2004 p. 101
  12. ↑ Joint guidelines of the interior ministers / senators and the justice ministers / senators of the federal states for the protection of endangered witnesses according to RdErl. D. Ministry of the Interior - IV D l - 2015, d. Ministry of Justice - 4103 - m A. 49 - ud Ministry of Finance - In 0991 - 6 - IB 5 - v. May 16, 1997. Repealed by the confidential Gem. RdErl. D. Ministry of Interior 42-2015, d. Ministry of Justice 4103 - III.49 - and Ministry of Finance - In 0991 - 6 - IB 5 - VS-NfD of January 26, 2004
  13. ↑ Corinna Nohn: Witness protection: whoever wants to talk gets a new life Süddeutsche Zeitung , December 22, 2010
  14. ↑ Protection of witnesses in criminal proceedings: On the legal situation in Germany Scientific services of the German Bundestag , status of March 22, 2018, p. 7
  15. ^ Witness protection Rechtslexikon.net, accessed on March 8, 2020.
  16. ↑ Issuance of identity documents in false names for cover identities by federal or state authorities. Response of the federal government to a small inquiry, BT-Drs. 18/6748 of November 19, 2015, p. 5