Witness Protection Act

from Wikipedia, the free encyclopedia
Basic data
Title: Law amending the Code of Criminal Procedure and the Federal Fee Code for Lawyers
Short title: Act on the Protection of Witnesses During Examinations in Criminal Proceedings and on Improving Victim Protection; Witness Protection Act
Abbreviation: ZSchG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Criminal procedural law
Issued on: April 30, 1998
( BGBl. I p. 820 )
Entry into force on: December 1, 1998
GESTA : C129
Please note the note on the applicable legal version.

The Witness Protection Act ( ZSchG ) is an article law which, through the use of video technology, should ensure that witnesses in need of protection are largely spared during interrogation in criminal proceedings . It was passed on April 30, 1998 by the German Bundestag and came into force on December 1, 1998. By amending the Code of Criminal Procedure, especially in the case of child victim witnesses, it should enable audiovisual media to be used during interrogation in order to reduce the psychological stress that is often associated with interrogation and the risk of secondary victimization . In addition, the appointment of a legal witness ex officio and a corresponding fee event were introduced in the federal fee schedule for lawyers .

History of victim protection

The protection of crime victims became an issue in the 1970s: in 1976, among others, the television journalist Eduard Zimmermann founded the White Ring , an aid organization for crime victims . In the same year, the Victims Compensation Act is passed, which grants victims of acts of violence care because of the health and economic consequences in accordance with the Federal Welfare Act.

On April 1, 1987, the first Victims Protection Act came into force, which, among other things , was intended to strengthen the right of secondary action in Section 395 of the Code of Criminal Procedure and the assertion of civil law claims for damages during the main criminal court hearing ( adhesion proceedings ).

After the legislature had in previous years primarily concerned with transforming criminal proceedings into a powerful instrument for the fight against crime in order to combat the Red Army parliamentary group and using newly developed technical means for investigating criminal offenses, a new one came about Rediscovery of the long ignored victim. The reason for this was recent scientific discussions and victimological research in Germany and abroad, which aimed to redefine the role of the victim in criminal proceedings, but also in substantive criminal law.

With the Crime Combat Act 1994 and the Act on Criminal Procedure Anchoring the Offender-Victim Compensation in 1999, for example, § 46a StGB, § 155a , § 155b StPO established offender-victim compensation in German criminal law.

The Witness Protection Act of April 30, 1998 was also issued in this context.

Creation of the ZSchG

According to the coalition agreement of November 11, 1994, victim and witness protection should be improved immediately.

Various draft regulations competed in the legislative process.

The draft law of the SPD parliamentary group only wanted to enable children and women to be questioned by the court in appropriate cases in order to protect their personality. The Federal Council's draft mainly protected witnesses under the age of 16. The draft law of the then ruling coalition consisting of CDU / CSU and FDP pursued the goal of using video technology to ensure that all witnesses in need of protection, not just certain groups of witnesses, are largely spared during their interrogation. In addition, the appointment of a witness was proposed ex officio. In accordance with the English model , which has been tried and tested in Great Britain , the video interrogation in the main hearing should be carried out in such a way that the presiding judge remains in the courtroom during the interrogation and is connected to the witness, who can be accompanied by a person of trust and legal counsel, via a direct video link. In the case of all particularly vulnerable witnesses, both the simultaneous video transmission and the use of video recordings as evidence should be permitted and the witness should be assigned a lawyer for the duration of his questioning.

Previously, the criminal courts had partially considered it permissible for child witnesses in particular in proceedings for sexual abuse to be questioned outside the courtroom by the chairman and for this questioning to be transferred to the conference room (so-called Mainz model ). This practice was made with regard to § 226 StPO, which stipulates the uninterrupted presence of the judge in the main hearing and the accused's right of confrontation according to Section 240 (2) of the Code of Criminal Procedure (StPO) is the subject of controversial discussion in law Knowing the different drafts, the legislature then decided, following a proposal by the mediation committee , to give preference to the model already practiced in Great Britain, in which the chairman and the other parties involved in the proceedings do not leave the meeting room and the witness attending another Place is heard by means of a direct video-audio transmission. Another legislative initiative by the Union parliamentary group in 2003 with the aim of introducing the so-called Mainz model for the questioning of victim witnesses who are under 16 years of age was unsuccessful.

Content of the ZSchG

The interrogation of a witness who was injured by the criminal act can be recorded on image / sound carriers and played back in the subsequent main hearing ( § 58a , § 255a StPO). A witness can also be questioned during the main hearing in the absence of those entitled to attend , in particular the defendant, and the testimony can be transmitted to those entitled to be present at the same time in image and sound ( Section 168e StPO). It was also made possible for the witness to be heard at a different location and not in the hearing room, and for his testimony to be transferred to the hearing room if there is an imminent danger of serious harm to the welfare of the witness if he is heard in the presence of those present at the main hearing would ( § 247a StPO). Such a dangerous situation can also exist for a witness protected in accordance with the Witness Protection Harmonization Act (ZSHG).

Witnesses and co-plaintiffs can also be assigned legal counsel and legal aid can be granted for this ( Section 68b , Section 397a StPO). In addition, the federal states offer various victim support facilities to advise and support victims of a crime, including at the courts and public prosecutor's offices.

With several reform laws, especially in 2004, 2009 and 2015, the legal status of witnesses affected by crime was further improved and, in particular, it was ensured that they are no longer perceived and treated as a means of establishing the truth, but rather as independent legal entities.

To implement the European Victim Protection Directive, the law on psychosocial support in criminal proceedings came into force on January 1, 2017 . In particular, children and adolescents who have become victims of serious sexual or violent crimes receive a legal right to free psychosocial process support ( Section 406g StPO). For other victims of serious violent and sexual offenses, the court should decide, depending on the individual case, whether psychosocial support should be provided.

literature

  • Barbara Blum: Judicial witness support under the sign of victim protection. A legal and sociological study on the possibilities and limits of witness care in criminal proceedings. Berlin u. a .: LIT Verlag , 2006. ISBN 3-8258-9924-1
  • Maike Scheumer: Video interrogation of child witnesses. On the practice of the Witness Protection Act. Universitätsverlag Göttingen, 2007.
  • Kirstin Maaß: The protection of particularly sensitive witnesses through the use of video technology with special consideration of the accused's rights and procedural principles . Berlin: Duncker & Humblot , 2012. ISBN 978-3-428-13739-8
  • Sebastian Ziegler: Right of Confrontation vs. Victim protection. The expansion of the rights of witnesses and injured persons in the sense of the legal political zeitgeist and its consequences for the defense rights of the accused in criminal proceedings using the example of the right of confrontation. Hamburg: Verlag Dr. Kovač , 2016. ISBN 978-3-8300-9215-5

Individual evidence

  1. 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
  2. ^ Draft of a law amending the code of criminal procedure (law on the protection of witnesses during interrogation in criminal proceedings; witness protection law - ZSchG) BT-Drs. 137165 of March 11, 1997
  3. December 18, 1986: The first Victim Protection Act is promulgated WDR , December 18, 2006
  4. Law on Compensation for Victims of Violent Acts (OEG) of May 11, 1976, Federal Law Gazette I p. 1181
  5. First law to improve the position of the injured person in criminal proceedings (Victim Protection Act) of December 18, 1986, Federal Law Gazette I p. 2496
  6. cf. Stephan Barton : Victim Protection and Defense: The Ambivalence of the Victims Turning to Criminal Law 2011
  7. Susanne Stöffel: The Interaction between Terrorism and Internal Security in the Federal Republic of Germany in the 1970s. Legal, political and social reception of terrorism by the Red Army parliamentary group and the state fight against terrorism at the University of Tübingen, 2002
  8. Joachim Herrmann: The Development of Victim Protection in German Criminal Law and Criminal Procedure Law - A Neverending Story ZIS 2010, pp. 236–245
  9. Act amending the Criminal Code, the Code of Criminal Procedure and other laws (Criminal Combat Act) of October 28, 1994, Federal Law Gazette I p. 3186
  10. Law on anchoring the offender-victim compensation under criminal procedure law and amending the law on telecommunications systems of December 20, 1999, Federal Law Gazette I p. 2491
  11. ^ Coalition agreement for the 13th legislative period of the German Bundestag Press archive of the Konrad-Adenauer-Stiftung , p. 39
  12. BT-Drs. 13/3128 of November 28, 1995
  13. BT-Drs. 13/4983 of June 9, 1996
  14. BT-Drs. 13/7165 of March 11, 1997
  15. cf. LG Mainz, decision of June 26, 1995 - 302 Js 21307/94 jug. 3 A Kls, NJW 1996, 208
  16. cf. about Dahs, NJW 1996, 178; Laubenthal, JZ 1996, 335; Seitz, JR 1998, 309, 311; Caesar, NJW 1998, 2313, 2315
  17. BT print. 13/10001 of March 2, 1998
  18. cf. BT print. 15/814 of April 8, 2003 pp. 4, 8
  19. cf. BGH, decision of 20 September 2016 to 3 con 84/16 para. 13
  20. 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), p. 101 f.
  21. Bettina Hartz: The witness protection law 1998 - a balance sheet critical justice 2006, pp. 74-85
  22. cf. Victims ombudsman of the State of Berlin: Victim support facilities and witness care centers in the federal states. Berlin, as of February 2016
  23. cf. For example: Witness contact points Ministry of Justice Rhineland-Palatinate , accessed on March 9, 2020.
  24. Law to improve the rights of injured persons in criminal proceedings (Victims' Rights Reform Act - VictimsRRG) of June 24, 2004 Federal Law Gazette I p. 1354
  25. ^ Victims' Rights Reform Act Rechtslexikon.net, accessed on March 1, 2010.
  26. ^ Act to strengthen the rights of injured persons and witnesses in criminal proceedings (2nd Victims Rights Reform Act) of July 29, 2009, Federal Law Gazette I p. 2280
  27. Law to Strengthen Victims 'Rights in Criminal Proceedings (3rd Victims' Rights Reform Act) of December 21, 2015, Federal Law Gazette I p. 2525
  28. Detlef Burhoff: New regulations in the StPO through the 3rd Victims Rights Reform Act ZAP-Heft 3/2016, F. 22, p. 861 ff.
  29. Stefanie Bock: The European victim rights package: between substantial progress and blind actionism ZIS 2013, pp. 201–211.
  30. Directive 2012/29 / EU of the European Parliament and of the Council of October 25, 2012 on minimum standards for the rights, support and protection of victims of crime and for the replacement of framework decision 2001/220 / JHA . In: Official Journal of the European Union . L 315, November 14, 2012, p. 57.
  31. Law on psychosocial support in criminal proceedings (PsychPbG) of December 21, 2015, Federal Law Gazette I p. 2525, 2529
  32. Sandra Kotlenga, Barbara Nägele, Sabine Nowak: Victims' needs and rights in criminal proceedings: information and recommendations for the police, judiciary and victim support organizations Findings from a study on the experiences of victims of domestic violence in criminal proceedings against the background of the German implementation of the EU victim protection directive. Göttingen, Münster, February 2016
  33. Gabriele Kett-Straub: How much victim protection can criminal proceedings take? ZIS 2017, pp. 341–347
  34. Law to Strengthen Victims 'Rights in Criminal Proceedings (3rd Victims' Rights Reform Act) Federal Ministry of Justice , as of December 30, 2015