5

Alice witnessed an altercation in a public park in which a knife was pulled, but nobody was hurt. The police were called, the offender fled the scene but stayed in the vicinity. Since Alice saw everything from ca. 30ish meters away, her statement was taken by the police at the time and now she is asked to provide a written statement.

Alice understands that this will make her address visible to the accused, and she is already nervous about the person targeting her for giving a statement/pointing him out. Is it normal under German law to just assume the accused will never go after a witness? The form seems to allow giving a different address (like a work address), but this seems to require a "good reason". What are acceptable reasons? What is the best way to go?

3
  • 1
    You're asking about a situation where a mistake could either endanger your SO or land her in legal trouble. I don't think this should be closed as legal advice- it's generic enough that replacing SO with "Alice" is enough to make it on topic but I strongly recommend getting advice from a lawyer, or even consulting the police involved rather than randomers on the internet. Jul 7, 2021 at 13:13
  • Certainly in England, it's possible to be anonymous or to keep the address secret, but it requires good reason and discussion with police or prosecutions. I'd assume Germany is similar, and therefore you should discuss it with authorities as soon as possible. The English guidance is here: cps.gov.uk/legal-guidance/witness-protection-and-anonymity
    – Stuart F
    Jul 7, 2021 at 16:12
  • Good question. I don't personally know the answer under German law and wouldn't even hazard a guess.
    – ohwilleke
    Jul 7, 2021 at 18:43

1 Answer 1

6

Is it normal under German law to just assume the accused will never go after a witness?

  • This is not a question that can be answered here, or probably anywhere with any degree of certainty.

The form seems to allow giving a different address (like a work address), but this seems to require a "good reason". What are acceptable reasons?

  • These include an imminent risk of serious detriment to her well-being and a well-founded reason to fear she (or anyone else) might be improperly influenced if she gives here address.

Staying anonymous; She is asked to provide a written statement.

A witness is not obligated to give the material witness statement to the police. Instead, a witness is only obligated to appear before and make a statement to the German public prosecutor (Staatsanwalt). 

AND...

every (potential) witness is obligated to give their particulars at the hearing, including full names, maiden name, age, occupation and place of residence. Some or all of these details may be omitted, however, if there is a specific risk. In those cases, the identity of the witness may be kept undisclosed.

  • LONG ANSWER

Book1, Chapter 6 of the German Code of Criminal Procedure, Strafprozeßordnung (StPO), gives the rules for examining, and protecting, witnesses.

Section 48 (Obligations on witnesses; summons):

(1) Witnesses shall be obliged to appear before the judge on the date set down for their examination. They shall have the duty to testify if no exception admissible by statute applies.

(2) ...

(3)... An examination shall, in particular, be made

    1.   as to whether an imminent risk of serious detriment to the witness’s well-being requires measures to be taken pursuant to section 168e or section 247a,
    1.   as to whether any of the witness’s overriding interests meriting protection require that the public be excluded pursuant to section 171b (1) of the Courts Constitution Act and
    1.   as to what extent it is possible to refrain from asking non-essential questions concerning the witness’s personal sphere of life pursuant to section 68a (1) [see below]

Account is, further, to be taken of the witness’s personal situation and the nature and circumstances of the offence.

Section 68 (Examination as to witness’s identity; limitation of information, victim protection):

(1) The examination shall begin with the witness being asked to state his first name, last name, name at birth, age, occupation and place of residence...

(2) A witness shall, furthermore, be permitted to state his business address or place of work or another address at which documents can be served instead of stating his place of residence if there is well-founded reason to fear that legally protected interests of the witness or of another person might be endangered or that witnesses or another person might be improperly influenced if the witness states his place of residence. If the conditions of sentence 1 obtain at the main hearing, the presiding judge shall permit the witness not to state his place of residence.

(3) If there is well-founded reason to fear that revealing the identity or the place of residence or whereabouts of the witness would endanger the witness’s or another person’s life, limb or liberty, the witness may be permitted not to provide personal identification data or to provide such data only in respect of an earlier identity. However, if so asked at the main hearing, he shall be required to state in what capacity the facts he is indicating became known to him.

(4) ...

(5) Subsections (2) to (4) shall also apply after conclusion of the examination of the witness. Insofar as the witness was permitted not to provide data, it must be ensured in the course of the provision of information from or inspection of the files that these data are not made known to other persons, unless a danger within the meaning of subsections (2) and (3) appears to be ruled out.

Section 68a (Limitation of right to ask questions to protect privacy):

(1) Questions concerning facts which might dishonour the witness ... or which concern their personal sphere of life are to be asked only if they cannot be dispensed with.

Section 168e (Separate examination of witnesses):

If there is an imminent risk of serious detriment to a witness’s well-being in the event of his being examined in the presence of persons entitled to be present and if that risk cannot be averted in some other way, the judge shall examine the witness separately from those entitled to be present. There shall be simultaneous audio-visual transmission of the examination to the latter. The rights of participation of those entitled to be present shall otherwise remain unaffected. Sections 58a and 241a shall apply accordingly. The decision referred to in sentence 1 shall not be contestable.

Section 247a (Order for witness examination via audio-visual means):

(1) If there is an imminent risk of serious detriment to the well-being of the witness were he to be examined in the presence of those attending the main hearing, the court may order that the witness remain in another place during the examination; such an order shall also be admissible under the conditions of section 251 (2) insofar as this is necessary to establish the truth. The decision shall not be contestable. Simultaneous audio-visual transmission of the testimony shall be provided in the courtroom. The testimony shall be recorded if there is a concern that the witness will not be available for examination at a future main hearing and the recording is necessary to establish the truth. Section 58a (2) shall apply accordingly.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.