Acting as Witness Counsel in Criminal Cases in Germany

Witness evidence is one of the four forms of evidence used in criminal proceedings in Germany and is used to clarify facts relevant under German criminal law. A witness is a person who is supposed to make statements about their perception of facts in criminal proceedings without being an accused person themselves. The rights and duties of a witness are regulated in the German Code of Criminal Procedure (StPO).

The basic task of a witness in Germany is to inform the court of their perception of the facts in question – they present their view of the truth to the court. In Germany, witness evidence is always subjective, which the court considers when weighing the probative value. The witness has a fundamental duty to testify truthfully (Sections 48 (1) sentence 2, 57 StPO). Anyone who makes a false statement before a judge commits a criminal offence in Germany under Section 153 of the German Criminal Code (StGB), which can be punished with up to 5 years imprisonment. Criminal liability is also given if the false statement does not affect the judgment, as it is legally an abstract endangerment offence. Making a false statement in Germany may also be punishable as obstruction of justice (Section 258 StGB) or as false accusation or defamation (Section 164, 187 StGB).

As a witness, you are obliged to appear for questioning before the judge or the public prosecutor’s office (Sections 48 (1) sentence 1, 161a (1) sentence 1StPO). If a witness does not fulfil their obligation to appear, they must generally bear the costs caused by their absence and possibly pay an additional fine. Under certain circumstances, the witness may also be compelled to appear (Section 51 StPO). However, these consequences do not apply if the witness’s failure to appear is excused in good time. Since 2017, the obligation to appear also applies to police summonses if the summons is based on an order from the public prosecutor’s office (Section 163 (3) sentence 1 StPO).

In Germany, witnesses have the right to legal assistance at every stage of the criminal proceedings and to ensure that their rights are safeguarded, Section 68b StPO. This is achieved in particular because the lawyer may accompany the witness during questioning (Section 68b (1) sentence 2 StPO). This right to be present may only be restricted in exceptional cases (Section 68b (1) sentences 3 and 4 StPO). To consult with the witness’s counsel, the witness may also request an interruption of the hearing.

Being named as a witness in criminal proceedings can be a significant burden. This is all the more true if you are an injured party yourself or if you have personal connections to the victim or the accused. In such cases, seeking advice from an experienced witness counsellor is advisable. Good preparation for the interrogation can help to avoid hasty and ill-considered statements. At Schlun & Elseven Rechtsanwälte, we will inform you about interrogation methods and prepare you for the questions you can expect. Under certain circumstances, a witness may be assigned a lawyer if they do not have a witness counsel and cannot exercise their rights during questioning themselves (Section 68b (2) sentence 1 StPO). However, this usually only occurs in exceptional situations, e.g. the questioning of mentally impaired persons.

Under certain circumstances, a witness is not obliged to give evidence. This is the case if they have a right to refuse to give evidence or provide information (Sections 52 et seq. StPO). In the case of a right to refuse to provide evidence, the witness cannot be obliged to give evidence. Close relatives, such as the accused’s spouse, are entitled to refuse to testify (Section 52 StPO). Persons subject to professional secrecy and persons involved in the professional activities of a person subject to professional confidentiality also have the right to refuse to give evidence (Section 53 StPO). However, the right to refuse to provide information only applies to questions whose answers would expose the witness themselves or a close relative to the risk of being prosecuted for a criminal offence or misdemeanour (Section 55 StPO). In this case, information can only be refused concerning individual questions.

One of the tasks of the witness counsel is to support you in weighing up whether and to what extent you should make use of your rights to give evidence and refuse to provide information. This is a question of the individual case, in which, among other things, the significance of the statement and the consequences of its refusal for the accused play a role. If you decide to invoke your right to refuse to give evidence, our lawyers will endeavour to obtain a subpoena. This is because if a witness entitled to refuse to testify has been sufficiently informed of their rights and situation and clearly declares their refusal to testify before the main hearing, the court may not summon them (BGH, judgement of 30.8.2000 – Ref.: 5 StR 268/00).

Our German criminal defence lawyers support you with all questions and tasks concerning your summons as a witness. This includes not only contacting the authorities but also support in drafting a written witness statement. In some cases, it may be necessary to obtain authorisation to give evidence (Section 54 StPO) or to be released from any existing duty of confidentiality (Section 203 StGB). Our lawyers ensure that these requirements are met. In special circumstances, measures for the protection of the witness must be considered. This includes, for example, the exclusion of the public or individual persons. Removing the accused during questioning (Section 274 StPO) could also be appropriate. If appropriate protective measures appear necessary, our criminal defence law team will inform the court at an early stage.