Right to refuse to provide information under German law
Das Right to refuse to provide information is a central element of German criminal and civil procedural law. It refers to the right of certain persons to refuse to testify or to provide information in judicial or administrative proceedings. This right serves in particular to protect personal relationships, the right against self-incrimination, and the fulfillment of special societal functions. The regulations are anchored in various laws and differ depending on the area of application.
Definition of the term and legal basis
The right to refuse to provide information is essentially addressed in criminal procedure law, civil procedure law, as well as in administrative and tax law. The key statutory provisions are found in:
- Sections 52-55 of the Code of Criminal Procedure (StPO)
- Sections 383-385 of the Code of Civil Procedure (ZPO)
- other special laws, such as tax law (§ 93 AO) or the Administrative Procedure Act (VwVfG)
Right to refuse to provide information in criminal proceedings
Personal right to refuse to testify
Protection of close personal relationships according to § 52 StPO
An important aspect of the right to refuse to provide information is the right to refuse to testify for personal reasons pursuant to § 52 StPO. Under this provision, close relatives of the accused, such as spouses, life partners, fiancés, direct relatives and in-laws, may refuse to testify. The purpose of this rule is to provide special protection for family ties.
Extended areas of protection
The right to refuse to testify also extends to certain life partnerships, such as registered civil partnerships. A waiver of the right to refuse to testify can generally be revoked as long as the testimony has not been completed.
Professional right to refuse to testify
Special professional positions (§ 53 StPO) grant certain professional groups, such as clergy, defense counsel, doctors, or psychotherapists, the right not to disclose information entrusted to them in the course of their duties. This relationship of trust is a fundamental pillar of constitutional procedures and protects the public interest in the confidentiality of certain matters.
Right to refuse to provide information for reasons of self-incrimination
According to § 55 StPO, every witness has the Right to refuse to provide information right, insofar as by testifying they would risk criminal prosecution or administrative offense proceedings against themselves. The so-called nemo tenetur principle (no one is obliged to incriminate themselves) is a fundamental principle of criminal procedure law.
Consequences and procedures when invoked in criminal proceedings
If the right to refuse to provide information is asserted, the testimony must be interrupted. The court is required to instruct on the scope and prerequisites of the right. Unjustified refusal can, in some cases, lead to the use of coercive measures, but if the right is valid, it remains without sanctions.
Right to refuse to provide information in civil proceedings
Rights to refuse to testify under the ZPO
Section 383 ZPO also regulates the right to refuse to testify in civil procedure law. These regulations are comparable to the provisions of the StPO but differ in certain details. Entitled persons also include close relatives and certain holders of professional secrets. The right is broader than in criminal proceedings, as private interests are regularly at stake in civil cases.
Refusal to provide information under § 384 ZPO
In addition to the complete right to refuse to testify, there are cases of refusal to provide information, for example when answering certain questions could put the witness at risk of criminal prosecution or if another legally recognized reason exists.
Differences from criminal proceedings
In civil proceedings, it is possible, for reasons of duty of care and the protection of personal rights, to leave certain questions unanswered. Unlike criminal proceedings, the obligation to tell the truth still takes precedence.
Right to refuse to provide information in administrative and tax law
Administrative law basis
In administrative proceedings (regulated mainly in § 27 VwVfG), the right to refuse to provide information also exists, particularly to protect the family and to avoid self-incrimination. Similar principles apply here as in criminal and civil procedure law.
Tax law right to refuse to provide information
The tax law right to refuse to provide information under § 93 AO allows witnesses to refuse to testify if doing so would expose themselves or relatives to the risk of criminal prosecution (§ 104 AO). In particular, tax secrets and trust relationships with holders of professional secrets are also specially protected.
Limits and abuse of the right to refuse to provide information
The right to refuse to provide information is not unlimited. It applies only within the statutory framework and may not be abused to refuse statements preventively or without grounds. In criminal cases in particular, the court examines whether the conditions are met and explains them in case of doubt. Criminally liable false testimony or false statements about personal circumstances are not protected by the right to refuse to provide information.
Legal consequences and evaluation of evidence
Procedural consequences
The assertion of the right to refuse to provide information has a direct impact on the proceedings. The testimony may not be used against the entitled witness in any proceedings. In civil proceedings, a witness may successfully refuse to testify without having to fear any disadvantages, except for possible disadvantages in evidence for the party bearing the burden of proof.
Handling of lack of evidence
In the case of a legitimate refusal to provide information, a lack of evidence may arise in some instances. The courts must take this into account when evaluating evidence, without restricting the right to refuse to testify.
International comparison and European legal framework
At the European level as well, the protection of the family and the right against self-incrimination are enshrined in the European Convention on Human Rights (ECHR, especially Article 6). Many member states of the European Union have similar rules regarding the right to refuse to provide information, though the extent, prerequisites, and procedures partly differ.
Summary
The right to refuse to provide information is an essential element for protecting personal relationships, safeguarding relationships of trust in certain professions, and guarding against self-incrimination in judicial and administrative proceedings. It is based on clear legal requirements, differentiated according to areas of application, and makes a significant contribution to the fairness and humanity of the legal order. Enforcement of the right to refuse to provide information is protected by state orders and is thoroughly examined and safeguarded by the authorities responsible for the proceedings.
Frequently asked questions
Who is entitled to invoke the right to refuse to provide information?
Under German law, the right to refuse to provide information is granted to certain groups of persons. In particular, witnesses in criminal proceedings (§ 52 StPO), civil proceedings (§ 383 ZPO), administrative proceedings, and in tax court proceedings may invoke this right to refuse to provide information if they have a special relationship with the accused or party involved, such as being a spouse, registered life partner, fiancé, direct relative (e.g., parents, children), sibling, or related by marriage in a direct line. Persons who, by testifying, would risk criminal prosecution for themselves or certain close relatives (§ 55 StPO), also have such a right. Furthermore, certain holders of professional secrets such as lawyers, doctors, clergy, psychotherapists, and journalists are entitled to refuse to provide information entrusted to them in their professional capacity (§ 53 StPO, § 383 ZPO).
What formal requirements and procedures must be observed when asserting the right to refuse to provide information?
The person concerned must expressly assert their right to refuse to provide information. In criminal proceedings, the court is obliged to inform affected witnesses of their right to refuse to provide information before their examination. This right may be exercised at any time before or during the examination until the proceedings are finally concluded. A verbal statement is sufficient; a written application is not required. Once the right has been validly asserted, the witness must not be questioned any further about the protected circumstances. In the case of professional secrets, the holder of the secret must make clear to which part of the testimony the refusal relates.
What are the consequences of the right to refuse to provide information for criminal proceedings?
The exercise of the right to refuse to provide information means that the person concerned need not make any statements on the matter, as long as they are entitled to do so. The refusal cannot be considered to the defendant’s disadvantage by the court. If the right is not exercised in time or correctly, statements may be used as evidence. However, if the witness was not properly informed by the court of their right to refuse to provide information, their statement is generally inadmissible in criminal proceedings (§ 252 StPO). This can have significant effects on the taking of evidence, especially when other evidence is lacking.
In which situations is the right to refuse to provide information excluded?
The right to refuse to provide information can only be exercised if no statutory exception applies. For example, in cases of reporting obligations to authorities (e.g., registration obligations, social security), the right to refuse to provide information is limited. Holders of professional secrets may not exercise this right if they have been released from their duty of confidentiality by the person concerned or client. Furthermore, the right does not apply in administrative offense proceedings concerning the person’s own involvement, as there is an obligation to provide personal details in this context; the same applies in acute danger situations, where refusal to provide information could immediately lead to serious violations of legal interests (case-by-case balancing).
Is there an obligation to attend as a witness despite the right to refuse to provide information?
Anyone who is summoned for a witness examination is generally required to appear, even if they are entitled to refuse to provide information. Procedural rules provide that the decision to exercise this right can only be made during the examination. Failure to appear after a proper summons is only permitted if a valid excuse exists. If the right to refuse to provide information is granted, the person concerned need not answer any questions as long as the prerequisites are fulfilled.
What are the differences between the right to refuse to provide information under § 52 StPO and § 55 StPO?
The right to refuse to provide information under § 52 StPO applies to witnesses who have a statutory relationship with the accused or defendant. They may generally refuse to testify about the matter. In contrast, § 55 StPO protects witnesses from exposing themselves or certain close relatives to the risk of criminal prosecution. This right is much more specific to the particular situation and may only be exercised for questions where there is an actual risk of prosecution of themselves or others. The court must instruct and also examine whether such a risk exists in doubtful cases. The right under § 52 StPO offers more comprehensive protection than that under § 55 StPO.
What are the consequences of an unjustified refusal to testify?
Anyone who, without a legal reason, refuses to testify as a witness or, despite being required to refuse, conceals facts, may be compelled to attend, fined, or taken into custody (§§ 51, 70, 380 ZPO; §§ 51, 70, 71 StPO). The burden of proving the existence of a right to refuse to provide information generally lies with the witness. Abuse of the right, for example to delay proceedings in general or to protect third parties outside the legally protected circle of persons, is not accepted by the courts and can result in sanctions.
