Concept and legal nature of instruction
An instruction in a legal context is understood to be the formal, often legally required communication of specific information or advice to a person, through which this person is informed about their rights, obligations, procedural steps, or legal consequences. Instructions hold a central position in German law, as they serve, especially in criminal and administrative procedures, to protect and inform the parties involved and are regularly a prerequisite for the effectiveness of official actions or the creation of specific legal consequences.
Legal basis for instruction
The statutory obligation to provide instruction can be found in various regulations, depending on the legal field, for example in:
- Criminal proceedings (§§ 55, 136, 163a StPO)
- Administrative offence proceedings (§§ 46, 55 OWiG)
- Civil proceedings (e.g. § 141 ZPO)
- Administrative procedures (§ 28 VwVfG, § 25 SGB X)
- Labor law (e.g. § 2 Nachweisgesetz)
The exact form and scope of the instruction depend on the relevant statutory provision and the particular stage of the proceeding.
Types of instructions by legal area
Criminal law instruction
Instruction takes on a prominent role in criminal proceedings, particularly to protect the rights of suspects, witnesses, and persons giving evidence.
Instruction of the accused
According to § 136 para. 1 of the Code of Criminal Procedure (StPO), an accused person must, before the first interrogation, be explicitly instructed:
- of the specific accusation made against them
- that they are free to comment on the matter or to remain silent
- that they may consult a defense attorney at any time
- that they have the right to request the taking of evidence
The instruction is a procedural requirement; omission regularly leads to the exclusion of evidence.
Instruction of witnesses
Witnesses must be instructed about their obligation to testify, rights to refuse to testify (§ 52 StPO), rights to refuse to provide information (§ 55 StPO), as well as the consequences of giving false testimony (§ 153 StGB). The requirements as to the form and content of the instruction depend on the particular stage of the proceedings and the legal status of the person.
Instruction in administrative law
Procedures in public administration often require that those involved be informed of their rights and possibilities to participate in the proceedings before decisions or actions are taken.
Instruction on the right to be heard
According to § 28 of the Administrative Procedure Act (VwVfG), before a disadvantageous administrative act is issued, the citizen must be given the opportunity to comment; the citizen must be instructed about this so that they can respond appropriately.
Instruction on legal remedies
According to § 37 para. 6 VwVfG, a written administrative act must contain an instruction about which legal remedy can be filed against it, where, and within what period. If this instruction is missing, the period for filing the legal remedy is extended to one year in accordance with § 58 para. 2 of the Administrative Court Regulations (VwGO).
Instruction in civil proceedings
In civil cases, the parties must be informed by the court according to § 139 ZPO about particular applications or points they may have overlooked and, if necessary, instructed. Failure to instruct may affect the basis for a decision in a potential appeal case.
Other significant instructions
A variety of instruction obligations exist even outside the core areas mentioned, e.g.:
- Labor law: Information about contractual terms according to the Nachweisgesetz
- Social law: Instruction during application on duties to cooperate and legal consequences of lack of cooperation (§ 25, § 66 SGB I)
- Police law: Information during identity checks or deprivation of liberty
Form, timing, and effectiveness of the instruction
Form of the instruction
As a rule, the law does not explicitly stipulate whether an instruction must be given orally or in writing, though requirements may arise from the purpose of the law and often from administrative practice. Frequently, an oral instruction is supplemented with a written confirmation (signature, recording in a protocol) to provide evidence that it was properly carried out.
Timing of the instruction
As a rule, the instruction must take place vor before a relevant action (e.g. interrogation, act of cooperation) as otherwise its purpose would be defeated. A subsequent instruction often does not cure the omission.
Consequences of omitted or incorrect instruction
The consequences depend on the particular legal area and the function of the instruction within the process:
- In criminal proceedings, a violation can lead to a prohibition on the use of evidence.
- In administrative law, lacking an instruction on legal remedies can extend deadlines (see above).
- In civil cases, there is the possibility of raising an objection and correction on appeal.
Function and purpose of instructions
Instructions serve several legal functions:
- Legal protection: They ensure that those involved can exercise and protect their rights.
- Fairness of proceedings: Transparency and explanation ensure a fair course of proceedings.
- Legal clarity: Those involved should be clearly and understandably informed about legal consequences and duties to cooperate.
- Effectiveness of governmental actions: Proper conduct of instructions is often a prerequisite for the effectiveness of further sovereign measures.
Evidence, documentation, and burden of proof
In case of doubt, the party obliged to provide the instruction must prove that it was properly carried out. For this reason, the instruction is often documented in writing and acknowledged by the instructed person. If this is disputed, the court must decide on credibility.
Legal consequences of ineffective instruction
Depending on the area, the legal consequence of ineffectiveness varies greatly:
- Criminal proceedings: Inadmissibility of the statement, possible discontinuation of the case
- Administrative proceedings: Extended deadlines for legal remedies, challengeability of the administrative act
- Civil proceedings: Possibility of remedy within the proceedings
Difference from other advice and information
An instruction must be distinguished from general information or advice, as it is regularly based on a specific statutory obligation and is often linked to specific legal consequences. Instructions are usually necessarily tied to a formal process.
References for further reading
- Löwe-Rosenberg, StPO Commentary
- Kopp/Ramsauer, VwVfG Commentary
- Musielak/Voit, ZPO Commentary
- Sodan/Ziekow, Administrative Court Procedure
- Fischer, Criminal Code
Note: This article is for informational purposes only and does not replace individual legal advice.
Frequently Asked Questions
When is an instruction required in the legal sense?
An instruction is legally required whenever statutory provisions expressly mandate it, to ensure the protection of the affected person and to make the legal consequences of a measure clear and understandable for this person. This is particularly the case in situations under criminal procedure law, when a person is questioned as an accused or a witness (§§ 136, 163a StPO), in administrative law (e.g. during hearings pursuant to § 28 VwVfG), and in employment law (e.g. when warnings are issued or in cases of being informed about specific obligations and consequences). The obligation to instruct serves to inform the affected party about their rights (such as the right to remain silent) and obligations as well as the essential circumstances and possible consequences of a legal measure. Failure to provide a legally required instruction can lead to ineffectiveness of measures, exclusion of evidence, or invalidity of legal acts.
What are the consequences of lacking proper instruction?
If a legally required instruction is missing or defective, this can have considerable legal consequences. For example, in criminal proceedings, statements of an accused person who was not properly instructed about the right to remain silent cannot generally be used against them (exclusion of evidence). In administrative law, the absence of an instruction can result in the contested measure being unlawful or the time limits for legal remedies not commencing. In employment law, employment measures such as warnings or dismissals may be invalid if instruction duties are not observed. The exact legal consequence always depends on the specific field and the law that mandates the instruction.
Who is obliged to provide instruction?
The party or person usually obliged to provide an instruction is the one undertaking an official measure or relevant legal act. In criminal proceedings, this is particularly the police officer, public prosecutor, or judge. In administrative law, the obligation falls on the competent administrative authority issuing the administrative act. In employment law, it is usually the employer or the person responsible for this duty who must provide the instruction. The specific obligation follows from the relevant laws, regulations, or collective agreements. In some cases, third parties such as lawyers or notaries may also be obliged to provide instruction, especially if acting on behalf.
Must an instruction be provided in a specific form?
The required form of instruction is determined by the relevant statutory provisions or judicial requirements and can vary according to context. Often, an oral instruction is sufficient, but for evidentiary reasons, written documentation is usually recommended or required. In certain situations, such as instruction on the right of withdrawal in consumer protection law, a written form is expressly prescribed (§ 355 BGB). In judicial and administrative procedures, instruction must often be comprehensive and clear enough that the affected person can understand the meaning of the information. If formal requirements are lacking or the instruction is not understandable, this can lead to the ineffectiveness of the instruction.
How can proper instruction be proven?
The burden of proof for providing proper instruction generally lies with the party relying on the validity and legal effect of the instruction. In criminal proceedings, proof is provided by documentation in the interrogation protocol or by the instructed person’s signature. In administrative procedures, the instruction is often recorded in writing and appended to the administrative act or documented on official forms. In employment relationships, written confirmation of the instruction by the employee is recommended to avoid subsequent evidentiary problems. If the instruction is given orally only, witnesses can be called as evidence.
Can a defective instruction be subsequently remedied?
A defective or omitted instruction can, under certain conditions, be remedied afterwards (“subsequent instruction”), provided this is done promptly and properly. In criminal proceedings, subsequent instruction is possible if the rights of the accused have not yet been impaired and the information has not already been used in the case. In administrative law, subsequent instruction can cure the administrative act (§ 45 VwVfG). In other areas, especially employment law and consumer protection, the possibility of curing depends on the individual case and the relevant statutory provisions. If instruction is provided late or incompletely, this may lead to the entire measure being invalid.
Are there exceptions to the duty to instruct?
Yes, there are exceptions to the duty to instruct, which must be expressly regulated in the relevant law or may arise from the purpose and sense of the legislation. For example, instruction can be dispensed with if the individual concerned has already been comprehensively and verifiably informed of their rights, or if the duty to instruct lapses due to the individual’s own knowledge. In emergencies, cases of imminent danger, or when providing instruction would jeopardize the purpose of the measure, statutory exceptions may apply. A careful examination of the individual case and precise reference to the applicable legal situation are always required.
