Concept and Principles of the Right to Refuse to Testify
Das Right to Refuse to Testify is a central institution in German criminal, civil, and procedural law. It refers to the right of certain individuals to refuse to testify as a witness during judicial or administrative hearings. The aim of this right is to balance conflicting interests—such as the state’s interest in prosecution on the one hand and the protection of personal relationships and public interests on the other.
Legal Basis of the Right to Refuse to Testify
Criminal Procedural Regulations
In criminal proceedings, the right to refuse to testify is essentially regulated in Sections 52 to 55 of the Code of Criminal Procedure (StPO).
Personal Right to Refuse to Testify (§ 52 StPO)
The right to refuse to testify is initially granted in criminal proceedings to close relatives of the person concerned (accused, suspect, defendant). According to § 52 StPO, among others, spouses, life partners, fiancés, blood relatives, and in-laws of the first degree may refuse to testify. This applies regardless of whether a family relationship actually exists, relying solely on the legal status.
Professional Right to Refuse to Testify (§ 53 StPO)
In addition, § 53 StPO grants the right to refuse to testify to certain professional groups. This particularly involves persons who are bound to confidentiality due to their professional status, e.g., members of the clergy, defense counsel, Rechtsanwalt, notaries, physicians, psychotherapists, midwives, or journalists. The aim of this provision is to protect special secrets arising from a relationship of trust.
Refusal to Testify for Self-Exoneration (§ 55 StPO)
Witnesses are also entitled to refuse to testify under § 55 StPO if their testimony would expose themselves or close relatives to the risk of criminal prosecution or administrative fines. This serves as protection against self-incrimination.
Right to Refuse to Testify in Civil Proceedings
In civil proceedings, the right to refuse to testify is governed by § 383 et seq. of the Code of Civil Procedure (ZPO). The ZPO also distinguishes between a personal and a professional right to refuse to testify.
Personal Reasons (§ 383 ZPO)
Close relatives of the parties are granted the right to refuse to testify. This encompasses similar groups of persons as in criminal proceedings.
Professionally-Based Right to Refuse to Testify (§ 383 ZPO in conjunction with § 385 ZPO)
Certain professional confidential parties, such as Rechtsanwalt, members of the clergy, physicians, and psychotherapists, have a comprehensive right to refuse to testify under the conditions specified in § 383 ZPO.
Self-Incrimination (§ 384 No. 2 ZPO)
Furthermore, refusal to testify is permitted if a witness statement could lead to criminal prosecution or prosecution for a regulatory offense for the witness themselves.
Administrative Proceedings
In administrative proceedings, the corresponding principles of the ZPO are generally applied analogously (§ 98 VwGO). Here too, testimony may be refused for personal, professional, or self-incriminating reasons.
Scope and Exercise of the Right to Refuse to Testify
Extent of Refusal to Testify
The right to refuse to testify may be exercised with regard to the entire testimony or only to parts of it. Authorised persons may decide for themselves whether and to what extent they wish to testify. However, if only partial testimony is given, this entails an obligation to respond to questions concerning those statements.
Form and Timing of Exercise
Before every examination, persons entitled to refuse to testify must be informed of their right. The exercise of the right to refuse to testify is informal but must be declared unequivocally. The right may be asserted before, during, and even after giving a statement, as long as the examination is not yet complete.
Limits and Effects of the Right to Refuse to Testify
Restrictions
The right to refuse to testify is not unlimited. It lapses if the reason for refusal no longer applies, e.g., upon divorce or annulment of engagement before the examination is concluded. Waiver is generally possible; if the testimony is given nevertheless, the right no longer applies to that extent.
Consequences of Refusing to Testify
Refusing to testify is not a criminal act. Those entitled are under no obligation to give evidence. If testimony is refused, no disadvantage may be inferred to the detriment of the relevant party.
Distinction from the Right to Refuse to Provide Information
While the right to refuse to testify allows for a complete refusal to provide a statement, the right to refuse to provide information applies only to specific disclosures, the answering of which could incriminate certain persons or close associates.
Right to Refuse to Testify in an International Context
The right to refuse to testify is also recognized under international law. The exact arrangement may, however, differ depending on the relevant national legal system. In many European countries and the common law world, comparable protective mechanisms exist for witnesses.
Significance and Function in a Constitutional State
The right to refuse to testify serves to protect personal, family, and professional relationships of trust, and is an expression of legal principles such as the privilege against self-incrimination and the protection of private life. It thus makes a vital contribution to fair trial proceedings.
Summary: The right to refuse to testify grants certain persons protection against being compelled to give evidence against their will in judicial or administrative proceedings. The statutory provisions distinguish between personal, professional, and exonerative reasons. This right is an indispensable element of the German legal system, ensuring that private, family, and professional secrets remain protected even in court proceedings.
Frequently Asked Questions
When does the right to refuse to testify apply and to which groups of people does it relate?
The right to refuse to testify primarily applies for the benefit of certain groups specifically defined in criminal procedure law by § 52 StPO (Code of Criminal Procedure). These include, in particular, fiancés, spouses, life partners, as well as relatives and in-laws up to certain degrees of the accused. Members of the clergy, Rechtsanwalt, defense counsel, physicians, psychotherapists, social workers, journalists, and others who are subject to professional or special confidentiality obligations may also invoke the right to refuse to testify or a so-called prohibition against testifying (§§ 53, 53a StPO), depending on the circumstances. The right always refers to the individual, not as a blanket rule for professional groups, so that a concrete personal or professional connection to the accused must always be established.
At what stage of criminal proceedings can the right to refuse to testify be asserted?
The right to refuse to testify can be asserted at all stages of the proceedings in which a person is summoned to give evidence, i.e., during police, prosecutorial, and court examinations. The entitlement exists both in the preliminary investigation and in the main proceedings, not just before the court. If the right is not asserted initially, the witness may still exercise it during or even after having made a statement, such that affected passages may need to be excluded from evidence. The only exception is when the witness, having been properly instructed about the right to refuse to testify, gives evidence consciously and voluntarily (forfeiture).
Must a witness explicitly assert their right to refuse to testify, or is it considered ex officio?
The right to refuse to testify must generally be asserted explicitly. However, the Code of Criminal Procedure obliges law enforcement authorities to inform all persons with the right to refuse to testify about the existence, scope, and consequences of this right before they begin their statement (§ 52 (3) StPO). If the person concerned wishes to make use of the right, this must be clearly declared. If this declaration is omitted and a statement is given, the statement is generally effective in law; however, there are exceptions, especially if the instruction was not properly given.
Are there exceptions or restrictions to the right to refuse to testify?
Yes, the right to refuse to testify is not unlimited. It does not exist in particular where a statement is absolutely necessary to protect higher-ranking legal interests (e.g., to avert imminent danger to life or liberty of a person), provided this is explicitly stipulated by law. In certain cases involving state security interests, such as counter-terrorism or state security, the right may also be restricted. Furthermore, the right must not be abused for the purpose of trial fraud or obstruction of justice.
What are the consequences of unjustified refusal to testify?
If a person refuses to testify without there being a right to do so, procedural coercive measures such as a fine, detention (§ 70 StPO), police escort, or enforcement fine may be imposed. Costs arising from the unjustified refusal may also be imposed. Unjustified refusal is considered an administrative offense. Legal remedies against such measures are provided for by law (e.g., immediate appeal).
Can the right to refuse to testify be revoked or retroactively withdrawn?
Once the right to refuse to testify has been validly exercised, this decision remains binding as long as the personal relationship exists. However, it can be revoked as long as no statement has yet been made. If the witness expressly decides to testify and gives evidence, the right is considered forfeited in relation to the statements made. Retraction of the statement is not possible. Only for subsequent statements or questions on further matters can the right be exercised again, provided the personal relationship still exists at that time.
Does the right to refuse to testify apply to written statements or only to oral examination?
The right to refuse to testify applies regardless of the form of the statement. It applies both to oral examinations by police, prosecution, or court and to written comments, provided the latter are requested as part of a witness examination. The witness may refuse to testify in whole or in part; the decisive factor is always whether a witness statement is required and whether the personal or professional connection or confidentiality obligation is relevant.
What are the legal consequences of a violation of the right to refuse to testify, for example by failure to inform?
If a witness entitled to refuse to testify is not properly informed of this right and gives a statement, the information provided is subject to an exclusionary rule on the use of evidence. This means the statements made may not be considered for the decision in the criminal proceedings in order to protect the rights of the witness and the accused. In addition, a breach of the duty to instruct may result in procedural disadvantages and facilitate an appeal if the judgment is based on an erroneous assessment of evidence due to unlawfully obtained witness statements.
