Right to refuse to testify

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The right to refuse to testify entitles the witness to a court or other government agency under certain conditions to completely refuse to provide information about himself or a third party. This is to be distinguished from the right to refuse to provide information , which only relates to certain questions. Furthermore, it is to be distinguished from the right to refuse to testify , i.e. the right of an accused not to have to provide any information about the alleged facts in criminal proceedings .

It is u. A. regulated:

history

A right to refuse to give evidence is unknown to the oldest German legal sources . Here occur only as witnesses Eidhelfer on which the claim of innocence of the accused beleumunden should; One cannot speak of a rational argumentation and finding the truth here. A testimony denial law is thinking logically a witness duty ahead. Such can only be assumed for German legal history with the emergence of the Inquisition process by the Carolina of 1532, in Art. 72 (lxxij) of which it was provided that the court had to “bring the witnesses to the ordinary” , ie to discard one Testimony could be forced. Up until the 18th century, however, the procedural rules did not contain a right to refuse to give evidence in the true sense, but rather rules on which persons the court was actually allowed to hear as witnesses. Close relatives, for example, were excluded from the start as witnesses. Only with the replacement of the inquisition process and the advent of the modern criminal process did a real right to refuse to testify emerged. The Reich Criminal Procedure Code of 1879 provided for the right to refuse to testify for spouses, fiancés and close relatives ( Section 51 ) as well as clergymen, lawyers and doctors ( Section 52 ). After a long discussion, the law of December 27, 1926 ( RGBl. 1926 I p. 529 ) also granted editors and publishers the right to refuse to give evidence with regard to their informants. Further additions followed in the post-war period.

purpose

The purpose of the right to refuse to testify is to protect the witness from conflict situations that would result from loyalty to himself or to a third party and the obligation to testify truthfully if the witness were forced to testify. Such conflict situations include, in particular, the situation that the witness incriminates himself or a third party close to him and thus possibly exposes him to the risk of (more serious) criminal prosecution .

scope

According to the German Code of Civil Procedure, a distinction must be made between the right to refuse to testify

  • for personal reasons ( § 383 ZPO - e.g. the spouse of the litigant) and
  • for objective reasons ( § 384 ZPO - e.g. risk of personal prosecution).

The German Code of Criminal Procedure , however, differentiates between the right to refuse to testify in relation to a third party

With regard to the witness himself there is a right to refuse to testify as

For administrative fines according to the law on administrative offenses acc. 46 para. 1 OWiG, the provisions of the StPO are generally applied accordingly.

Right to refuse to testify for personal reasons

The right to refuse to testify for personal reasons entitles a comprehensive refusal to testify.

Who can refuse to testify?

Based on a data subject ( accused in criminal proceedings , litigant in civil proceedings ), the testimony may be refused:

For those people who for professional reasons, i. H. are allowed to refuse to testify because of their duty of confidentiality , the right to refuse to testify no longer applies if they are released from their duty of confidentiality. Confessional and pastoral secrets enjoy special protection in this context . Even after release from the duty of confidentiality (which is only possible to a limited extent under canon law, cf. confessional secrecy ), it is up to the pastor whether to refuse to testify about what has been entrusted to him.

If a witness within the meaning of Section 52 of the Code of Criminal Procedure testifies in ignorance of an actually existing right to refuse to testify due to a lack of instruction about his rights, this may lead to a ban on the use of evidence with regard to evidence obtained in this way as a result of the ban on collecting evidence. If a witness only makes use of his right to refuse to testify during the main hearing , the content of a testimony of this witness prior to the main hearing cannot be used either, since this is also subject to a prohibition on the use of evidence. In this case, neither is the record of the previous testimony available as documentary evidence, nor is the interrogating officer of the police or the public prosecutor's office heard as a hearsay witness about the content of this testimony. According to the prevailing opinion, the latter follows from a constitutional interpretation of § 252 StPO, although the wording there only contains a reading ban. The ban on reading results from the directness principle of criminal proceedings laid down in § 250 StPO.

In this context, the objection with regard to the exploitation in the main hearing, which is presupposed in the context of incorrect collection of evidence after the objection solution by the BGH, is not necessary.

However, if the previous statement was made before the investigating judge , there is no prohibition of exploitation of evidence due to the fact that the parties mentioned in Section 168c of the Code of Criminal Procedure (prosecutor, accused, defense attorney) are present in such an interrogation and the situation is comparable to a main hearing . In this case too, however, this only relates to the possibility of hearing a witness from hearsay, but not to the documentary evidence resulting from the judicial hearing in the form of the minutes. In addition, the witness must have been duly instructed by the judge and have acted voluntarily with knowledge of the scope of his testimony.

Right to refuse to testify for objective reasons

The right to refuse to testify for objective reasons only entitles you to refuse to answer individual questions. The German procedural rules grant the right to refuse to make statements in both civil and criminal proceedings that put the person making the statement or a relative at risk of being prosecuted for a criminal offense or an administrative offense ( right to refuse to provide information according to § 384 ZPO or § 55 StPO ). In the case of questions, the answer of which would dishonor the person making the statement, there is also the right to refuse to testify in civil proceedings. In criminal proceedings, on the other hand, there is no right to refuse to testify in this case - only since 1994 according to Section 68a of the Code of Criminal Procedure has the rule that such questions should only be asked if it is essential.

A police interrogation protocol can be used as documentary evidence in civil proceedings, even if the interrogated person later wants to assert his right to refuse to testify.

Consent of the legal representative

If the witness does not have a sufficient understanding of the importance of the right to refuse to testify because of insufficient intellectual maturity or because of mental illness or mental or emotional disability, the consent of the legal representative is required in addition to his own . Legal representatives in the sense of the provision can be the parents of a minor ; if personal custody has been withdrawn or suspended, a guardian or guardian for personal custody .

In the case of adults , a legal guardian can act as the legal representative. Since the latter is only authorized to represent in his / her area of ​​responsibility (§ 1902 BGB), he must have a scope of duties that includes criminal proceedings; the supervision court may have to expand the scope of duties beforehand (§ 1901 (5) BGB, § 293 FamFG).

If, in the case of a minor witness, a parent with custody is the accused himself, he or she cannot consent to the hearing of the witness; the family court must then appoint a supplementary carer (Section 1909 BGB) to decide on the right to refuse to testify .

exercise

The refusal to testify must be declared to the court and the facts justifying the right to refuse to testify must be made credible ( Section 386 ZPO). Evidence is regularly provided by means of an affidavit . In the event of a dispute about the existence of a right to refuse to give evidence, a decision is made by the court through an interim judgment.

To whom may testimony be refused?

The right to refuse to give evidence considered here relates to statements made in interviews with investigative authorities (such as the public prosecutor's office ) and courts , but, because it is the most restrictive, it may also be used against all others.

See also

literature

Web links

Individual evidence

  1. ^ Wolfgang Sellert: Obligation to give evidence, right to refuse to give evidence. In: Concise dictionary on German legal history . Vol. V, Berlin 1998, col. 1694-1696.
  2. ↑ Beate Hawickhorst: Legal framework for mediation procedures in Germany . In: team businessmediation, conflict management: The other mediation book for entrepreneurial practice , Linde Verlag, 2012, ISBN 978-3-7094-0245-0 , pp. 191-208. P. 199 .
  3. ↑ The mediator's duty of confidentiality according to § 4 MediationsG - it will remain between us in the future. January 1, 2012, accessed May 29, 2015 .
  4. ^ Judgment of the OLG Hamm from July 29, 1998, file number : 20 U 14/97.
  5. ↑ further evidence at http://www.bundesanzeiger-verlag.de/betreuung/wiki/Strafprozess#Betreuter_als_Zeuge_in_einem_Strafverfahren (online lexicon for care law)