I. Introduction
A district court judge is questioned as a witness about the content of a testimony. Whether, as a criminal judge, he shouted at the witness at the time: "Tell the truth now or I'll have you locked up." The judge laughs briefly and says, "It's quite possible that I said that. And if the senior public prosecutor (...) had been there, he would have actually done it." You feel transported back to Tucholsky's essays from the 1920s – but what's the use? The district judge's statement was recorded in 2010, not 1927.
In this respect, the alternatives for the witness in the criminal proceedings and the options for the defense to act on them appear worthy of consideration.
II. Duty to tell the truth and right to refuse
The role of the witness in criminal proceedings is circumscribed by the legislator through conflicting basic principles. On the one hand, the witness in court is generally obliged to testify and to testify truthfully, i.e. objectively correct in terms of content. He is to be instructed about this before the examination in accordance with § 57 S. 1 StPO. In the event of a violation, depending on whether the witness is sworn or unsworn, there is a risk of criminal liability under § 153 I or § 154 I StGB, which in either case provides for a minimum penalty of imprisonment.
The duty to tell the truth, which is subject to punishment in the event of a violation, serves only to maintain the functionality of the criminal justice system. Only if the information provided is truthful is it possible to reach a verdict that meets the requirements of objectivity and justice. The aim of criminal proceedings is not to convict the defendant, but to make an objective pronouncement on guilt, punishment or other criminal law measures, as well as to create legal peace by conscientiously striving for justice. This goal most clearly manifests the departure of modern criminal procedural law from the principles of the inquisitorial process. As a correlate, the legislator grants the witness in criminal proceedings a right to refuse to give evidence in accordance with § 52 I StPO and a right to refuse to testify in accordance with § 55 I StPO.
III. Function and scope of § 52 I StPO
The right to refuse testimony under § 52 I StPO is intended to protect the witness from the unbearable situation of only being able to fulfill the required duty to testify truthfully by incriminating a relative of the defendant. In this respect, the court accepts by law that it is more difficult to ascertain the truth. The right of § 52 I StPO applies in full and thus justifies a complete, not just a partial, refusal to give evidence. Only personal details are excluded from this.
IV. Function and scope of § 55 StPO
According to the legal wording of § 55 I StPO, a witness has the right to refuse to give evidence in cases where answering the questions put to him in the context of the taking of evidence would put himself or a relative within the meaning of § 52 I StPO at risk of criminal prosecution. In simpler terms, no one should be forced to incriminate themselves or a relative who is not the accused in the course of their testimony at the main hearing, just to answer a question directed at them that concerns the accusation against the defendant. Section 55 StPO is therefore the equivalent for witnesses of the provisions of sections 136 I 2, 163 a IV 2, 243 IV 1 StPO, which in turn are a consequence of the duty to comply with the nemo tenetur principle, which is a minimum requirement for any legal procedure and according to which no one may be forced to testify against themselves and ultimately to act as a tool against themselves.
Although, purely semantically, section 55 of the Code of Criminal Procedure, in contrast to section 52 I of the Code of Criminal Procedure, only grants a partial right of refusal with regard to a specific piece of information and not with regard to the entire testimony, the witness can already make use of it if the simple affirmation or negation of a question exposes the witness or an unaccused relative to even only a remote, merely indirect risk of criminal prosecution. This very broad interpretation of § 55 I StPO is intended to prevent the witness from creating grounds for suspicion against himself or an unaccused relative by exercising the right to refuse to give information. According to the Federal Court of Justice's well-known mosaic theory, the partial right of refusal becomes a full right.
1. Form of the instruction
The requirements described must subsequently also be reflected in the form of the judicial instruction. The statutory regulation initially contains no information whatsoever about the manner in which the instruction is to be given. However, there is agreement that it is "a matter for the presiding judge". From this, it is deduced that it is entirely at the discretion of the presiding judge as to how the instruction is to be given. The first option that presents itself here is a merely abstract reference to a right to refuse to give evidence under § 55 StPO. If it is apparent that the witness has not understood such instruction, he can be informed about the questions and procedures in response to which he may refuse to answer or to which he may refuse to give his entire testimony.
A problem relevant to practice can now arise from the fact that the presiding judge instructs the witness in an incomprehensible or tendentious manner.
This can be done in such a way that he points out to the witness that he can refuse to provide information if answering the questions would "incriminate" him.
Or if he indicates to the witness by emphasis, gestures or similar that one has to testify "if one has nothing to hide".
These variants of action, which run counter to the required neutrality or objectivity of the instruction, can only be understood from the point of view of the witness and also from the point of view of the defense in such a way that a refusal to give evidence, even if it is only with regard to a specific question, gives the court grounds for suspicion. Consequently, the witness would have to fear that by refusing to provide information, he or she would incriminate himself or herself and would thus possibly feel compelled to make a statement that he or she would not have made if the instruction had been worded differently. Thus, from the point of view of the witness, there is pressure to testify and also to justify oneself, which ultimately leads him to make a statement (which may be favorable to him) that results from an inadequate understanding of the scope of the right to refuse to testify granted to him under § 55 StPO.
2. options for the defendant
Violations of the instruction obligation of § 55 StPO are in principle not revisable from the point of view of the defendant, since § 55 StPO serves exclusively to protect the witness from self-incrimination and not to protect the defendant.
However, the option of the defendant or defense counsel to request clarification from the court should be considered.
The decision as to whether the instruction is amended and repeated in accordance with the request is made by the court in accordance with § 238 II StPO by way of an order, since the request is a complaint about the conduct of the proceedings.
If the court rejects the application, the defense counsel must then examine whether the defendant is entitled to file an application for the rejection of the judge who, in his opinion, is incorrectly or tendentiously instructing the defendant due to concerns of bias in accordance with § 24 I, III StPO.
The last possible point in time for the application for rejection is, in accordance with § 25 I 1 StPO, the beginning of the examination of the first defendant regarding his personal circumstances. However, since the problem of incorrect witness instruction, as shown here, naturally only arises in the further course of the main proceedings, namely in the context of the witness hearing, a motion to reject is also possible after the above-mentioned point in time in accordance with § 25 II 1 No. 2 StPO. The legislator takes into account the case that the circumstances justifying the challenge may only occur after the point in time specified in § 25 I 1 StPO. In the context of the possibility of violating § 55 StPO examined here, it is therefore necessary to make the application for rejection in accordance with § 25 II 1 No. 2 StPO immediately after becoming aware of any legally erroneous instruction of the judge or the court's refusal to clarify. In this context, from the defense counsel's point of view, there is a need for increased attention, since the focus is on the person of the defendant with regard to the point in time of becoming aware of the instruction or refusal, and not on the defendant's legal counsel.
Under no circumstances should the defense counsel allow himself to be delayed, for example by being told, "You can make the request right away (...)" or "Just wait, we always do it this way here at the court (...)". Because a motion that is not made immediately can be rejected as out of time without substantive examination in accordance with § 26 a I No. 1 StPO. If the rejection is not recorded in the minutes, it is almost impossible to challenge it in the appeal or revision proceedings.
The reason for the challenge, the apprehension of partiality, is to be assumed if the judge hearing the case does not exhibit the necessary neutrality and distance of the uninvolved third party, which must be maintained both with regard to the facts to be legally assessed and with regard to the parties involved. This objective criterion, as it were, is subsequently objectified by the merely required concern of bias and immediately relativized, because it is already given if a party to the proceedings, for example the defendant, has reason to doubt the impartiality of the judge based on a "reasonable assessment of all circumstances". However, actual partiality or impartiality are not considered.
Such a reason for rejection undoubtedly exists if the presiding judge, on the occasion of the instruction according to § 55 II StPO, influences a witness to the effect that the latter does not make use of his right to refuse to give evidence. This is because the witness has the right to a free and unbiased decision. This right does not prohibit the court from pointing out additional circumstances to the witness as part of the instruction, which could be of significance for the witness with regard to his decision for or against a statement. But it also requires that the court not act in a manner that would result in the conviction of the defendant through testimony obtained by deception or improper pressure.
In this context, it is first of all recognized that, if steering of the statement behavior reaches the quality of deception, this opens up the scope of application of § 136a StPO. Such deception is characterized by the fact that the judge causes the witness to err in believing that he must testify or that the witness, due to having been deliberately unclear in the instruction regarding the limits of the right to refuse to testify, sees himself compelled to testify by the high pressure of the threat of punishment. Although, according to the basic idea of § 55 StPO, an appeal to the right to refuse to give evidence must not be interpreted as an indication of concealment of one's own criminal liability, the particularly insistent instruction in many cases regardingregarding the fact that withholding certain facts in the context of testimony can also lead to criminal liability for perjury, regularly leads to a sense of coercion on the part of the witness.
3. Assessment
It is doubtful whether the instruction at issue here, according to which testimony can be refused if the witness "would have to incriminate himself," achieves the quality of deception in this sense.
However, the question of whether the judge has a duty to clarify such instruction at the request of the defense must be answered in the affirmative. It is simply unacceptable in the interest of the person entitled to refuse to testify and also in the interest of establishing the truth that the manner of the instruction is solely subject to the judge's discretion. Rather, it must be demanded that the limits of the right to refuse to give evidence be drawn as broadly as possible by the person obliged to give evidence. Only in this way can the telos of § 55 StPO, namely the protection of the witness from even a remote possibility of indirect danger of prosecution, be satisfied.
If a judge indirectly influences the evaluation of evidence by working towards a witness statement in an inadmissible manner, the associated external effect unquestionably gives the impression of biased action or of an already existing conviction of guilt on the part of the court. If the person subject to the obligation to instruct also refuses to make clarifying statements after a request by the defense, it is therefore advisable to file a motion for bias immediately.
If the person subject to the instruction obligation refuses to make clarifying statements, even after a request from the defense, it is therefore advisable to examine a challenge for bias immediately and ultimately to file it. A bias on the part of the person obliged to provide instruction should only be assumed if the instruction appears absurd or gives the appearance of arbitrariness. However, if it is obvious that the court is deliberately trying to pressure the respective witness into making a statement that is disadvantageous for the defendant, the threshold of absurdity or arbitrariness may be reached, according to a recent decision by the Federal Court of Justice. Such arbitrariness is to be assumed in particular if a "misinstruction routine" emerges from the instruction practice of the presiding judge.
The address of the judge quoted above: "Tell the truth now or I'll have you arrested" is so clearly indicative of a prejudice that the defense's failure to challenge the judge would constitute an unacceptable omission.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.