Definition and Legal Nature of an Order to Produce
An order to produce is a judicial or administrative directive by which a person is brought to a specified location—usually for a judicial, prosecutorial, or police interrogation, or a court appearance—by use of coercive measures. The order to produce serves to forcibly ensure a person’s personal appearance when they do not voluntarily comply with a summons or when their court-mandated appearance is to be secured.
The order to produce is established in various fields of law, particularly in criminal procedure, civil procedure, and other special statutes. Its forced implementation constitutes an intervention in the fundamental right to personal liberty, and thus requires a statutory basis and procedural safeguards.
Legal Bases and Areas of Application
Criminal Procedure Law
In criminal proceedings, the issuance of an order to produce is primarily governed by the Code of Criminal Procedure (StPO). The most important provisions in this context are §§ 133, 134 StPO.
Requirements
An order to produce in criminal proceedings may be issued when a summoned person—such as accused persons, witnesses, or experts—fails to comply with a judicial or prosecutorial summons without an adequate excuse. In the investigation stage, the public prosecutor’s office in particular has the authority to request the production of an accused for questioning or judicial decision. An order to produce can also be issued against witnesses if their absence obstructs the proceedings and lesser means are not expected to succeed.
Statutory Basis
- Section 133 StPO regulates production of the accused.
- Section 51 StPO permits the compulsory production of witnesses.
- Section 230 (2) StPO concerns production of the defendant for the main hearing.
Procedure
The order to produce is handed over to the police or another competent authority for enforcement. Usually, the production takes place without delay, with the person being taken into custody and brought directly before the competent court or authority. The order must be issued in writing and must include a justification.
Civil Procedure Law
Also in civil procedure production is possible under certain circumstances, for example pursuant to §§ 380, 441 of the Code of Civil Procedure (ZPO), if a witness fails to appear for questioning despite having been properly summoned.
Requirement and Procedure
As a rule, the prerequisite is that the witness has not credibly justified his or her unexcused absence. On court order, the person is brought in by the police. The measure is not intended to force a statement, but merely to secure the person’s appearance.
Administrative Law and Other Legal Areas
In administrative proceedings, orders to produce may be issued under certain state administrative execution acts or under the Administrative Procedures Act, for example in connection with regulatory hearings or proceedings under the Residence Act (e.g., for identification purposes).
Distinction from Other Coercive Measures
The order to produce must in particular be distinguished from other measures such as the arrest warrant or the pre-trial detention warrant . While the arrest warrant orders a prolonged deprivation of liberty, the order to produce is limited to the compulsory but short-term transfer to a hearing or trial. It regularly ends with the completion of the judicial or administrative measure for which the person was produced.
Form and Content of an Order to Produce
An order to produce must regularly be issued in writing and must include certain minimum information:
- Identification of the person to be produced (name, date of birth, address)
- Reason for production (e.g., questioning, hearing, main trial)
- Statutory basis for the measure
- Details regarding time and place of execution
- Identification of the executing authority or agency
- Information about legal remedies, if required by law
Safeguards and Legal Remedies
Because an order to produce constitutes a serious infringement of fundamental rights, various safeguards are provided.
Principle of Proportionality
An order to produce may only be issued if less severe means of securing appearance have proved insufficient and have been exhausted. The order must always be proportionate.
Legal Remedies
Depending on the type of proceedings, immediate complaint (§ 304 StPO) or an application for a judicial decision may be lodged against an order to produce. The justification for issuing the order and the manner of its execution are subject to judicial review.
Duration and Execution of Production
The duration of deprivation of liberty as part of an order to produce must, as a rule, be limited to the necessary minimum. There is an obligation to produce without delay in order to keep time in police custody as short as possible. If during production it becomes clear that further deprivation of liberty (such as pre-trial detention) is necessary, the competent judge will decide in accordance with statutory provisions.
Rights of the Person to be Produced
The person affected by the production is entitled to certain statutory rights:
- Information regarding the reason and purpose of the measure
- Right to contact a trusted person
- Right to be heard before judicial decisions, if applicable
- Entitlement to appropriate treatment during detention
Significance and Practical Relevance
The order to produce is an important instrument for ensuring the proper conduct of judicial and administrative proceedings. It safeguards the proper function of the administration of justice by compelling personal appearance and enabling statements or mandated measures, without exceeding the necessary degree of government coercion.
Literature and Further References
Statutory texts and relevant commentaries offer a deeper analysis of the subject, including:
- Code of Criminal Procedure (StPO) with commentaries
- Code of Civil Procedure (ZPO) with annotations
- Administrative Procedures Act (VwVfG)
- State administrative execution statutes
See also:
- arrest warrant
- Pre-trial detention
- Summons (law)
This article addresses the legal classification of the term order to produce, focusing on statutory basis, procedure, safeguards, and practical significance in judicial and administrative proceedings.
Frequently Asked Questions
Who is authorized to issue an order to produce?
An order to produce is issued—exclusively within the framework of statutory requirements—by a court or a prosecutorial authority so authorized. In criminal proceedings, this right chiefly belongs to the competent investigating judge, while in civil proceedings the trial court may decide if the person concerned has failed to comply with a summons without sufficient excuse. The legal basis for the order to produce in Germany is found in particular in the Code of Criminal Procedure (§ 133, § 135 StPO) as well as in supplementary provisions of other procedural statutes. Furthermore, it should be noted that the order to produce cannot be issued arbitrarily but must result from proper discretion and always in consideration of proportionality. The order to produce is subject to certain formal requirements and must be issued in writing, specifying in particular the individual concerned, the purpose of the production, and the precise circumstances.
For which types of proceedings can an order to produce be issued?
The order to produce is not only applied in criminal proceedings, but may also be used in other judicial procedures if there is doubt about a person’s willingness to appear voluntarily. In criminal procedure, it serves primarily to compel accused persons, witnesses, or experts to attend when they have not appeared following summons and without sufficient excuse. In civil proceedings, the court may likewise order the production of witnesses, experts, or parties. Similar compulsory measures may be taken in non-contentious proceedings (e.g., guardianship or family cases) if statutory requirements are met. The decisive factor is always that a person’s presence is indispensable for conducting or securing the proceedings, and less severe measures, such as a repeated summons, are inadequate.
What conditions must be met for issuing an order to produce?
The law imposes strict requirements for issuing an order to produce. Firstly, a valid summons must have been issued to which the person has not responded, despite sufficient time limits and proper service. Moreover, their absence must not have been adequately excused. Another prerequisite is the necessity of the person’s attendance for the relevant procedure; in particular, their personal appearance must be legally prescribed or necessary to clarify the facts. The court further checks whether all less severe means are exhausted or unsuitable. The principle of proportionality also requires that there be no disproportionate interference with personal liberty. The order must always be justified, and the person concerned must be instructed of their rights at the latest when the order is executed.
How is an order to produce enforced?
The enforcement of an order to produce is usually carried out by the police or other law enforcement bodies. The relevant officers must be provided with a written copy of the order to produce so they can present it to the individual concerned. The person is then brought directly before the court or to another specified authority. The individual is taken into custody and transported to the scheduled appointment. The law enforcement officers are required to observe the legal provisions protecting human dignity and to avoid disproportionate measures. In the case of resistance, only proportionate force may be used. After production, the individual must either be released, if the purpose of the measure has been achieved, or further orders may be given by the court.
Can legal remedies be lodged against an order to produce?
In principle, the person concerned has the possibility to appeal against an order to produce. In criminal proceedings, in particular, a complaint may be lodged in accordance with § 304 StPO, which is reviewed by the court that ordered the production or its higher authority. The legality of the order is then reviewed, in particular whether the requirements existed and whether the principle of proportionality was observed. Objections to the method of production may in particular be addressed subsequently through judicial review. If the review reveals that the order to produce was unlawful, the person affected may be entitled to compensation for the deprivation of liberty. It is advisable to seek legal advice at an early stage if an order to produce or its enforcement is considered unlawful.
What are the legal consequences of failing to comply with a summons without adequate excuse?
Failing to appear without an adequate excuse despite a judicial or official summons constitutes a disregard for the judicial order and can have various legal consequences. Most commonly, the immediate consequence is the issuance of an order to produce. In addition, coercive measures may be imposed, such as fines, or in the event of repeated violations, even coercive detention. In specific cases, e.g., as a witness or expert, credibility or standing in the proceedings may be affected. In criminal proceedings, unexcused absence can also be considered an administrative offense or, in certain circumstances, as obstruction of justice. The court may impose the costs of production and any further costs incurred due to noncompliance with the summons on the individual concerned.
What is the difference between an order to produce and an arrest warrant?
An order to produce and an arrest warrant serve different purposes and are subject to different legal requirements. While the order to produce is intended simply to compel a person to attend a specific appointment or official action, the arrest warrant serves to deprive a person of their liberty for a longer period on the basis of urgent suspicion and specific reasons for detention (such as risk of flight or collusion, repeat offenses). The order to produce ends as soon as its purpose—for the person to appear before the competent authority—is achieved, whereas the arrest warrant is subject to ongoing judicial supervision and permits significantly more far-reaching interference with personal freedom. Judicial standards of review and formal requirements for both measures are therefore structured differently.
