Concept and significance of witness counsel
Der Witness counsel is an important concept in German law in connection with criminal, civil, and administrative proceedings. It refers to the legal support and assistance provided to witnesses during their examination or hearing by a person authorized to do so, usually a lawyer. The main task of the witness counsel is to safeguard the legal interests of the witness, particularly their right to testify freely, the right to refuse testimony, as well as rights to protection and care. This article provides a comprehensive overview of the legal foundations, procedural regulations, rights and obligations, and the role of witness counsel in the German legal system.
Legal basis for witness counsel
Criminal proceedings
In criminal proceedings, the right to witness counsel is expressly regulated in § 68b of the Code of Criminal Procedure (StPO). According to this provision, the witness is allowed to be accompanied by a legally trained person of their trust to safeguard their rights. Under certain conditions, a counsel may also be appointed for the witness upon request, especially if the witness cannot adequately safeguard their rights themselves or requires special protection.
Important provisions:
- § 68b StPO: Permission and appointment of witness counsel, provisions concerning assignment.
- § 52 StPO: Right of close relatives to refuse to testify.
- § 53 StPO: Right of certain professional groups to refuse to testify.
Civil proceedings
In civil procedure law, there is no specific provision granting the witness a right to counsel to the same extent as in criminal proceedings. However, under § 377 paragraph 3 ZPO, a witness may be allowed a counsel if this appears necessary to protect their rights or to prevent significant disadvantages. The decision is at the court’s discretion.
Administrative proceedings
In administrative law, witness counsel is also not explicitly regulated; however, based on the principles of procedural fairness and referring to general administrative regulations, counsel can be permitted by analogous application.
Tasks and functions of witness counsel
The primary task of witness counsel is to protect the rights and interests of the witness during their examination. In particular, the counsel ensures that:
- The witness’s freedom to testify is preserved.
- The witness does not have to answer impermissible or unreasonable questions.
- The witness is informed of their rights to refuse to testify or rights of privilege.
- Potential self-incrimination is identified and prevented.
Additionally, witness counsel can provide advice to the witness and, in exceptional cases, call for breaks or, if permitted, raise objections. If there is a risk of self-incrimination, for instance under § 55 StPO, counsel can demand concrete protective measures.
Rights of witness counsel
Presence and participation rights
Witness counsel has the right to participate in the examination, ask supplementary questions, and influence the course of the examination, insofar as this is necessary to protect the witness’s rights. The court or the examining authority may exclude witness counsel from the hearing in the event of serious abuse, e.g. disruption of the examination.
Right to information
Witness counsel does not have a general right to inspect the files. However, there is a right to obtain information on the status of proceedings and relevant context, provided this is necessary to prepare for the witness examination. Further rights to information depend on the decision of the court and necessity in each case.
Limits of witness counsel
Witness counsel must not interfere with or influence the actual statement of the witness. Influencing the content of testimony is not permitted and may lead to exclusion of the counsel. The court has the authority to sanction abusive behavior.
Costs of witness counsel
In criminal proceedings, the costs for witness counsel are generally borne by the witness themselves. Assignment at the state’s expense is only possible under § 68b paragraph 2 StPO when required for reasons of care or to protect the witness, for example, in the case of minors, psychologically impaired, or particularly vulnerable persons.
In civil and administrative proceedings, the witness generally bears the costs themselves, unless a right to reimbursement arises in the individual case from further procedural provisions.
Significance of witness counsel in practice
Especially in sensitive criminal proceedings, such as in the context of sexual offences or proceedings with a political or economic background, witness counsel is gaining increasing significance. Protecting witnesses from abuse, hostile questioning, or dangers of self-incrimination is a key concern of procedural law and greatly contributes to upholding the principles of the rule of law.
Literature and further regulations
- Code of Criminal Procedure (StPO), §§ 52-68b StPO
- Code of Civil Procedure (ZPO), especially § 377 ZPO
- Administrative Procedures Act (VwVfG)
- Commentaries and academic articles on witness testimony and litigation
Summary
Witness counsel is an important component of witness protection at the procedural level in German law. It serves to protect and competently support witnesses during court and official examinations. The legal basis, rights, and obligations are essentially codified in criminal procedure law, but analogous application is found in civil and administrative law as well. The central function of witness counsel lies in safeguarding the freedom to testify and preventing legal disadvantages for the witness.
Frequently Asked Questions
What are the duties of witness counsel during an examination?
Witness counsel—usually a lawyer—performs a number of tasks during the examination to protect the rights and interests of the witness. Chief among these is monitoring the legality of the examination. The witness counsel ensures the witness is not subject to impermissible questions, such as those aimed at criminal self-incrimination or those infringing on privacy or professional/special rights to refuse to testify. In addition, counsel provides the witness with advice, points out their rights (especially the rights to refuse to testify or provide information), and assists with any uncertainties during questioning. Counsel can influence the phrasing of questions by objecting to leading or unclear questions and may request corrections to the record. Furthermore, counsel ensures the examination is conducted according to due process and accompanies the witness during any police, prosecutorial, or court examinations.
When and how may a witness make use of witness counsel?
In principle, any witness is free to have witness counsel present at an examination (§ 68b StPO). This applies regardless of whether the examination is conducted by the police, public prosecutor, or in court. Counsel can be engaged at any time, even at short notice—the witness should, however, inform the examining authority as early as possible to provide an opportunity for the witness to be examined with representation. If the witness does not yet have counsel, they can request a reasonable delay or postponement in order to seek legal advice. In certain situations, counsel may even be appointed for the witness, for instance when there is an imminent risk of self-incrimination.
Who bears the costs for witness counsel?
As a rule, the witness themselves must bear the costs for witness counsel. Exceptions apply when the court or the public prosecutor appoints one for the witness (§ 68b para. 2 StPO), for example, if for factual or legal reasons there is a compelling need for such representation, such as imminent self-incrimination or if the legal position is not sufficiently clear to the witness. If counsel is appointed ex officio, the state treasury bears the cost. In all other cases, especially if the witness voluntarily engages their own lawyer, they must bear the costs themselves; in some cases, claims for necessary expenses against the state treasury may be asserted after the conclusion of proceedings.
May witness counsel speak for the witness during the examination?
Witness counsel is primarily advisory and must not take over the witness’s right to give testimony. This means the witness must answer personally; counsel may only provide support. However, counsel is permitted to raise objections, point out legal issues, file motions, and enter statements in the record if they believe their client’s rights are being violated. Counsel may also object to certain questions and request clarifications. Directly answering questions on behalf of the witness—the active participation in giving testimony—is prohibited (§ 163a para. 4 sentence 2 StPO).
Are there specific requirements for the appointment of witness counsel?
For the appointment of witness counsel under § 68b para. 2 StPO, a particular need for protection must generally be present, such as if the witness faces the risk of criminal prosecution when providing truthful testimony or there is substantial uncertainty about the scope of their rights to refuse information. The court or public prosecutor must consider whether participation of counsel is required for the protection of the witness’s legal interests. Without such a need for protection, there is no entitlement to appointment; the witness may only engage private counsel at their own expense.
Can witness counsel be excluded from the examination?
Only in exceptional cases and under strict legal requirements may witness counsel be excluded from the examination, for example if they disrupt the examination or attempt to improperly influence the witness’s testimony (§ 68b para. 3 StPO). In such cases, a judicial decision must be made and the measure expressly justified. Exclusion is to be regarded as a last resort and may only be considered if milder measures, such as a warning or caution, are insufficient.
Does witness counsel have rights to inspect the files?
As a rule, access to the files is reserved primarily for parties to the proceedings, i.e. accused persons or joint plaintiffs. Witness counsel generally does not have a right to inspect the files for the witness, unless the court or public prosecutor exceptionally grants this in individual cases. The decision is at the discretion of the respective authority and is especially granted when knowledge of the files is necessary to safeguard the witness’s rights (§ 68b para. 1 sentence 3 StPO). However, the general rule is that neither counsel nor the witness has a comprehensive right to inspect the files.
