If you have witnessed a crime, the investigating authorities are often interested in hearing you testifying to the incident. Sometimes the police interrogate witnesses directly at the crime scene. In other cases, you will receive a letter from the police requesting you to appear at the office to testify.
Until an amendment to the law in the summer of 2017, it was considered that you did not have to comply with the police subpoena, i.e. you did not have to appear on that date and make a statement.
Since August 2017, a witness summoned by the police must attend and testify if the summons is based on an order from the public prosecutor’s office, subject to any applicable statutory right to refuse testimony or particular answers. If the letter does not make clear whether such an order exists, this should be clarified before the appointment.
If you are unsure whether you have to appear before the police and testify, you should in any case seek the advice of a lawyer beforehand. A person summoned as a witness may also come under suspicion during the proceedings. If that person must be treated as a suspect, they must be informed of the corresponding rights before questioning.
Being described as a witness does not by itself establish whether you are also under suspicion.
If there is any doubt, a lawyer should clarify your procedural status and rights before you make a statement. Failure to give the warnings required for a suspect may make a statement inadmissible in evidence. The consequences depend on the particular violation and the circumstances of the case. It is therefore important to keep as accurate a record of the questioning as possible.
If you are summoned as a witness by the police acting on an order from the public prosecutor’s office, by the public prosecutor’s office itself or by a court, you must in principle attend. If you fail to attend without a valid excuse, you may be brought in by force and a procedural fine may be imposed.
If you receive a court summons and intend to exercise a right to refuse testimony or particular answers, you can notify the court in advance, preferably through a lawyer. The court can then consider whether your personal attendance is necessary. Until the court cancels the summons or expressly excuses you from attending, you remain obliged to attend.
As a witness, you must testify truthfully unless a statutory right permits you to withhold testimony or an answer. Such a right does not permit false statements. Under section 55 of the German Code of Criminal Procedure, you may refuse answers that would expose you or a family member specified in section 52(1) to the risk of prosecution for a criminal or regulatory offense. You must answer other questions truthfully unless a right to refuse also applies to them.
The family members specified in section 52 of the German Code of Criminal Procedure may refuse to testify regardless of whether their evidence would incriminate the accused. They include a fiancé or fiancée, spouses, registered civil partners, parents, children, siblings, parents-in-law, nieces, nephews, great-grandchildren, step-parents and stepchildren, but not step-siblings solely because of that relationship. The right also covers former spouses and registered civil partners and former relationships by marriage within the statutory scope. Before every examination, witnesses must be informed of this right.
Section 53 of the German Code of Criminal Procedure protects certain information entrusted to or acquired by a person in a professional capacity. Subject to the statutory requirements, this includes pastoral care, criminal defense, legal advice, financial auditing and medical treatment. Members of parliament and people professionally involved in producing editorial media content may also refuse to testify within the statutory limits. Acting as an insolvency administrator alone does not establish such a right. The relevant factors are the specific role, the protected information and the statutory limits.
What is witness counsel?
Witness counsel (Zeugenbeistand) is a lawyer who accompanies a witness to his or her questioning and safeguards the witness’s rights there. The legal basis is § 68b StPO. Counsel may be present at the questioning, whether it takes place before the police, the public prosecutor’s office or the court. Before the questioning, counsel can discuss the legal position with the witness, point out a right to refuse information under § 55 StPO, draw attention to inadmissible questions and ensure that the statement is recorded correctly.
At the same time, witness counsel has clear limits. Counsel does not answer in place of the witness and must not steer the testimony. The role alone does not carry a right to full inspection of the file. Witness status by itself does not confer a general right of access to the investigation file. Separate rights of access, for example where the witness is also an injured party, remain unaffected. Counsel may be excluded from the questioning if specific facts justify the assumption that his or her presence would impair the orderly taking of evidence to more than a merely insignificant extent. Suitability as witness counsel requires careful assessment, particularly where the lawyer is personally involved in the offense, faces a conflict of interest or could jeopardise the investigation. Representing another person in the same matter does not, by itself, automatically lead to exclusion.
As a rule, the witness instructs and pays counsel personally. Where the witness has no legal counsel, counsel must be appointed at the expense of the state under § 68b (2) StPO if special circumstances show that the witness cannot exercise his or her rights during the questioning and the witness’s legitimate interests cannot be protected in any other way. The appointment covers the questioning and the preparation necessary for it, generally not the entire proceedings.
Witness counsel must be distinguished from other forms of support. Representation as an accessory prosecutor (Nebenklage) and psychosocial trial support have their own eligibility requirements and provide different forms of assistance.