Concept and Meaning of Refusal to Testify
Die Refusal to Testify refers in a legal context to the right of certain persons to refuse to testify as a witness in a court or official proceeding. This right serves to protect special personal, professional, or family relationships and is an integral part of German procedural law. The legal basis and concrete requirements for permissible refusal to testify are regulated in detail. The right to refuse to testify is intended to preserve relationships of trust and to prevent self-incrimination or incrimination of close associates.
Legal Basis for Refusal to Testify
Code of Criminal Procedure (StPO)
The right to refuse to testify is regulated in the Code of Criminal Procedure (StPO). In particular, §§ 52 et seq. StPO contain detailed provisions on the rights of witnesses to refuse testimony.
§ 52 StPO – Right of Relatives to Refuse to Testify
According to § 52 (1) StPO, certain relatives of the accused, such as spouses, registered partners, fiancés, relatives in a direct line, as well as siblings, have the right to refuse to testify. This right exists regardless of whether the relationship still exists or has already been dissolved. The purpose of this regulation is the protection of family bonds and the avoidance of intra-family conflicts.
§ 53 StPO – Right to Refuse to Testify for Professional Reasons
§ 53 StPO grants additional groups of persons, such as clergy, defense counsel, Rechtsanwalt, doctors, pharmacists, psychological psychotherapists, as well as other holders of professional secrets, the right to refuse to testify. These so-called “holders of professional privilege” are permitted to completely or partially refuse to testify if the statement would breach a confidentiality obligation. The background is to protect the special relationship of trust between these professional groups and their clients, patients, or counselees.
§ 53a StPO – Right to Refuse to Testify for Assistants
According to § 53a StPO, the right to refuse to testify also extends to assistants (for example, medical support staff), provided they have participated in confidential activities and are bound by confidentiality.
§ 55 StPO – Right to Refuse to Provide Information
Additionally, § 55 StPO protects against possible self-incrimination by allowing witnesses to refuse to answer questions, the response to which would expose themselves or close relatives to the risk of criminal prosecution. This right differs from the general refusal to testify in that it only concerns specific questions in the proceedings.
Zivilprozessordnung (ZPO)
The Code of Civil Procedure (ZPO) also contains provisions on the refusal to testify, particularly §§ 383 et seq. ZPO. Here, witnesses have a right to refuse testimony under similar conditions, for instance for relatives of either party or for certain professional confidentiality holders.
Administrative Procedure Law and Administrative Court Procedures (VwVfG, VwGO)
In administrative proceedings, the refusal to testify is regulated in § 28 VwVfG and § 96 VwGO. The provisions are based on the principles from the StPO and ZPO and transfer them to administrative procedures.
Limits and Scope of Refusal to Testify
Exclusion and Restriction
The right to refuse to testify is not unlimited. It is subject to restrictions, for example, when the public interest in a full clarification of the facts outweighs the right. In cases of abuse of this right, such as invoking refusal to testify for reasons that are merely pretextual or in cases where there is a duty to report planned serious criminal offenses, the right to refuse to testify can be excluded under certain conditions.
Partial Refusal to Testify
Witnesses may also refuse to testify only with regard to certain questions, provided the right to refuse to testify extends that far. This is particularly relevant for the right to refuse to provide information under § 55 StPO.
Procedure for Asserting the Right to Refuse to Testify
Statement before the Court
The right to refuse to testify must be expressly asserted by the witness. The court must inform the witness of this right at the beginning of the examination and advise them of the consequences of making an inadmissible statement. If the right is not asserted, it does not automatically relieve the witness of the duty to testify.
Review by the Court
In individual cases, the court will examine whether the requirements for the right to refuse to testify are met. In case of doubt, the court may suspend testimony until a decision has been made on whether the refusal to testify is permissible.
Consequences of Refusal to Testify
No Duty to Testify
If the right to refuse to testify is lawfully exercised, the obligation to testify in the matter lapses. Witnesses who effectively invoke their right to refuse to testify must not be disadvantaged as a result.
Sanctions for Unjustified Refusal to Testify
If a witness refuses to testify without legally recognized reason, the court may impose fines, detention, or compulsory appearance (§§ 51 et seq. StPO, §§ 390, 395 ZPO). In certain cases, a coercive fine may also be imposed.
Special Considerations and International Aspects
Refusal to Testify in International Legal Relations
In international legal relations, recognition of the refusal to testify is particularly relevant in the context of mutual legal assistance proceedings. Domestic standards of protection are regularly applied here, with international treaties and customary international law serving as the legal basis.
Refusal to Testify and Right to Remain Silent
The refusal to testify must be distinguished from the right to remain silent (the accused’s right to silence). While accused persons in criminal proceedings generally have a comprehensive right to remain silent, the right to refuse to testify only applies to certain groups of people and in varying scope.
References and Further Legal Provisions
- §§ 52-55, 68a StPO (Code of Criminal Procedure)
- §§ 383-385 ZPO (Code of Civil Procedure)
- § 28 VwVfG (Administrative Procedure Act)
- § 96 VwGO (Administrative Court Procedure Code)
- European Convention on Human Rights (ECHR): Protection of a Fair Trial
Summary
Die Refusal to Testify is an essential procedural right in the German legal system, designed to protect special relationships of trust, personal freedom, and the right to a fair trial. It applies in criminal, civil, and administrative proceedings and is subject to clear legal requirements. The limits and scope of refusal to testify are precisely defined by law to serve both the individual’s interest in protection and the interests of effective administration of justice.
Frequently Asked Questions
Can an employer refuse to issue a reference?
According to § 109 of the Trade Regulation Act (GewO), the employer is obliged to issue the employee a written reference upon termination of the employment relationship. This obligation applies regardless of the reason for termination and regardless of whether the employment ends at the employee’s request or by dismissal of the employer. Refusing to issue a reference is generally unlawful. Exceptions exist only if the employment relationship has not ended or the employee expressly waives the reference. The employer also cannot refuse issuance based on outstanding work or breaches of duty, as long as the employment has ended. A violation of the obligation to issue a reference can result in claims for damages or an application for correction/issuance of the reference before the labor court.
What legal consequences does an employer face for refusing to issue a reference?
If the employer refuses to issue the reference, the employee has the right to take legal action to obtain the reference. For this, the labor court is available. The court can order the employer to issue the reference. If the employer fails to comply with the judgment, a coercive fine or even coercive detention under § 888 ZPO (Code of Civil Procedure) can be imposed. Furthermore, the employee may be entitled to compensation for proven damages caused by the failure to issue a reference (for example, loss of income due to prolonged unemployment).
Can issuance of a reference be made conditional on the return of company property?
The issuance of a reference may not be made conditional by the employer on the fulfillment of additional requirements. In particular, the employer is not entitled to withhold the employment reference until company property (e.g., mobile phone, laptop, keys) has been returned or claims have been settled. The obligation to issue a reference arises upon termination of employment and is independent of other claims. Attempts to use the reference as leverage are legally ineffective. Employees can enforce issuance of the reference even if returns or other obligations have not yet been fulfilled.
Within what period must the reference be issued?
The employment reference must generally be issued “without undue delay” after termination of employment. This means that the employer must hand over the reference without culpable delay, typically within 1 to 2 weeks after the end of employment. Any further delay is generally not permitted. Only in cases justifying longer processing (such as an extended absence of the responsible supervisor) can an extension be justified. In case of doubt, the labor court will decide whether the reference was issued “without undue delay.”
What can an employee do if the employer does not issue the reference?
If the employer has not fulfilled the obligation to issue the reference, the employee should first make a written request with a deadline. If this request is ignored, the employee may file a lawsuit before the labor court to obtain the reference. Legal assistance is recommended but not mandatory. The claim for a reference can be raised as part of unfair dismissal proceedings or separately. In urgent cases, it is also possible to apply for a preliminary injunction to obtain the reference quickly.
Is there a limitation period for the claim to receive a reference?
The claim to an employment reference is subject to the standard limitation period of three years (§ 195 BGB). This period begins at the end of the year in which the employment ends. However, collective agreements or employment contracts may contain so-called exclusion periods, which mean that the claim to the reference may expire after just a few months if it is not asserted. Employees should therefore act promptly after the end of employment and request the reference in good time to avoid a loss of rights.
Can the employer refuse to issue a qualified reference and issue only a simple reference?
In principle, the employee is entitled to a simple reference (information on type and duration of employment) under § 109 GewO. At the employee’s request, a qualified reference (including information on performance and conduct) must be issued. If the employer refuses to issue a qualified reference after the employee has requested one, this claim can also be enforced through the courts. Refusal is not permitted and violates § 109 (1) sentence 3 GewO. Employers must comply with the employee’s request regarding the type of reference.
