False unsworn testimony
False unsworn testimony is a criminal offense under German criminal law, related to the duty to tell the truth before state courts. It addresses the intentional making of an objectively untrue statement without being sworn in, before a court or another entity authorized to take statements. False unsworn testimony is particularly relevant in witness statements, but can also occur in other contexts, such as with experts. The relevant rules are set out in Sections 153 to 156 of the German Criminal Code (StGB).
Definition and legal nature
False unsworn testimony is established as a separate offense alongside perjury. Its purpose is to protect the integrity of the administration of justice. Unlawful false statements can seriously undermine trust in judicial proceedings and hinder or even prevent the ascertainment of the truth.Wording of Section 153 StGB:
“Anyone who, before a court or before another authority competent to administer oaths, as a witness or expert, makes a false unsworn statement, shall be punished with imprisonment from three months up to five years.”
Statutory elements of the offense
Subject of the offense
Only witnesses and experts can be perpetrators of this offense. Defendants and party representatives are not considered eligible offenders as they are exempt from the duty to tell the truth – except when testifying as a witness.
Object of the offense
The object of the offense is the unsworn statement. The statement must be made in the context of a formal examination before a court or another body authorized to administer oaths.
Act of committing the offense: False statement
The act consists of the objectively false presentation of facts as a witness or expert. The statement is considered false if it contradicts reality. The assessment of truth or falsehood is made objectively. What matters is always the mental communication of the witness, not their subjective feelings.
Subjective element of the offense
Intent is required, meaning the offender must know their statement is incorrect and still intend to make it. Negligent false statements do not fall under this criminal offense but are regulated separately (Section 161 StGB).
Act of committing the offense and distinctions
Distinction from false sworn testimony (§ 154 StGB)
If the false statement is made under oath, it constitutes a particularly serious case of false testimony and falls under Section 154 StGB, which carries a higher penalty.
Distinction from perjury (§ 154 StGB)
The difference is that, with an unsworn statement, no oath is taken. Perjury is thus a qualified form of false testimony and generally carries higher penalties.
Distinction from negligent false statement (§ 161 StGB)
Negligent conduct is only punishable when expressly stipulated by law. A negligent false statement before the court can be sanctioned by imprisonment of up to one year or a fine pursuant to Section 161 StGB.
Penalty and sentencing
For false unsworn testimony, Section 153 StGB provides for a prison sentence of three months to five years. The determination of the sentence depends particularly on the seriousness and the impact of the false statement on the proceedings.
Mitigation under Section 157 StGB
The court may, at its discretion, reduce the penalty or, under certain conditions, waive it altogether if the offender corrects the false statement in time, i.e., before the conclusion of the proceedings.
Attempt and withdrawal
An attempt to make a false unsworn statement is also punishable under Section 159 StGB. Withdrawal is possible if the correction is made in time—that is, before the false statement affects the proceedings and before it is discovered.
Procedure and responsibilities
Investigations regarding false unsworn testimony are often initiated by public prosecutors, especially when courts report suspected cases. The procedure follows the general rules of the criminal procedure code.
Rights and duties of instruction
Before making a statement, witnesses must be instructed about their obligation to tell the truth. A violation of these instruction duties may in individual cases lead to procedural obstacles or call the admissibility of the statement into question.
Right to refuse to testify
Witnesses may refuse to testify under certain legal conditions, e.g., to avoid incriminating themselves or relatives (Section 52 StPO). In such cases, criminal liability for failing to testify or for a false statement does not automatically lapse.
Relevance and typical cases of application
False unsworn testimony is of significant importance especially in civil and criminal proceedings, as it protects the integrity of judicial truth-finding. Common cases involve witness statements, expert statements, and occasionally situations in administrative or disciplinary proceedings with a duty to testify.
Constitutional aspects and European legal framework
The criminal provision of false unsworn testimony is constitutional in its design, as the state’s interest in the proper functioning of the justice system is weighed against individual interests in testifying. At the European level, there are no fully harmonized regulations; however, the duty to tell the truth is recognized in many other European legal systems.
Reference literature and further regulations
- German Criminal Code (StGB), especially Sections 153-161
- German Code of Criminal Procedure (StPO)
- Case law collection of the Federal Court of Justice (BGH) on false unsworn testimony
- Commentary literature: Münchener Kommentar zum StGB, Fischer, Beck-OK StGB
Summary
False unsworn testimony under German law constitutes an important criminal offense to protect court proceedings and the ascertainment of the truth. It covers all intentional false statements by witnesses and experts before the competent authorities. The statutory regulations include prerequisites, sentencing ranges, possible sentence reductions, as well as special demarcations from related offenses such as perjury. The consistent prosecution of false unsworn testimony serves to maintain the integrity and functioning of the state’s administration of justice.
Frequently asked questions
What penalties can be expected for false unsworn testimony?
For false unsworn testimony according to Section 153 StGB, imprisonment from three months up to five years may be imposed. The threat of punishment is less severe than for false sworn statements under Section 154 StGB, but still significant, as the legislator also considers unsworn false statements to substantially impair the administration of justice. In less serious cases, the court can reduce the penalty to less than three months’ imprisonment or impose a fine. It should be noted that a less serious case is generally assumed only if mitigating circumstances, such as a particularly minor significance of the false statement or an exceptional burden on the offender, are present.
In which proceedings can false unsworn testimony be punishable?
False unsworn testimony is punishable if given during a judicial examination. This includes, in particular, statements by witnesses, experts, or parties in civil proceedings before the court. Not all examinations are covered: statements to the police, public prosecutor’s office, or other investigative authorities, but not before a court, are generally not included. What matters, therefore, is that the false statement is made in a formal (usually oral) proceeding before a court, regardless of whether it is a criminal trial, civil trial, or other court proceeding.
Is concealing facts also punishable?
Yes, under certain circumstances, deliberately concealing facts can also be considered false unsworn testimony. The prerequisite is that the concealment is equivalent to active lying, for example, because there was an explicit request to state all relevant facts or it was clear from the circumstances that the witness was expected to provide complete information. The so-called ‘pleading memory lapses’, i.e., pretending not to remember something, can also be deemed false unsworn testimony if it is proven to be untrue and intended to mislead the court.
What role does intent play in false unsworn testimony?
False unsworn testimony is an intentional offense, meaning the perpetrator must knowingly and willfully make a false statement before the court. Negligent false statements—that is, statements made by accident or carelessness—do not fulfill the offense. The intent must relate to the statement being incorrect or incomplete and that it is made in a judicial proceeding. Furthermore, the offender must also know that their statement is significant for the court’s decision-making.
Are there ways to remain unpunished if the false statement is corrected in time?
Section 158 StGB governs active remorse in cases of false unsworn testimony. Accordingly, the offender is exempt from punishment under certain conditions if the false statement is corrected in time. A correction is considered timely if it is made before the proceedings in which the statement was made are concluded and before the court or public prosecutor is otherwise made aware of the falsehood. The correction must be explicit and unequivocal, leaving no doubt that the previous statement was false and has been rectified.
Can experts or parties also be prosecuted for false unsworn testimony?
Yes, the offense of false unsworn testimony under Section 153 StGB not only covers witnesses, but also parties, experts, and other participants if they testify within the framework of a judicial examination. The intention is to include all parties who may influence the court’s findings in order to ensure the obligation to testify truthfully. Their statements must also be truthful; otherwise, they may be held criminally liable.
What effects does false unsworn testimony have on the respective court proceedings?
A false unsworn statement can significantly affect the respective court proceedings by distorting the court’s decision-making and preventing a just verdict. If the court discovers the false statement during the proceedings, this may result in the statement being deemed inadmissible or even in the suspension or reopening of the trial. In addition, once a false statement is established, the judicial authorities are regularly obliged to initiate an investigation for false unsworn testimony, regardless of the outcome of the underlying case.
