CCPE-BU(2017)1

Strasbourg, 14 February 2017

      

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

In your answers, please do not send extracts of your legislation but describe the situation in brief and concise manner, including briefly what is happening in practice.

Introduction

The Opinion deals, in general, with the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, and, in particular, with the role of prosecutors in protecting these rights.

The first section deals with the definition of victims, witnesses and vulnerable persons in the way in which it exists in different member states of the Council of Europe. The second section deals with their rights. The third section concerns the role of prosecutors in protecting these rights. This section, due to the mandate of the CCPE, is the key section of the Opinion.

The Bureau and the Secretariat of the CCPE would like to strongly thank you for your cooperation and contributions.

1. Definitions

1.1      Is there in your country a definition of a victim or a witness of crime? If yes, is it established in the law or other legal instruments?

The Criminal Procedural Law does not provide a specific definition of the legal terms “victim” or “witness”, but defines in a number of provisions specific rights and duties of these persons (see 2.1. - 2.3.).

1.2      Are there in your country special regimes for victims of certain types of crimes, for example, domestic violence, sexual abuse, trafficking in human beings? If yes, can you list them?    

In general, there are no special regimes for certain types of crime. Nonetheless, in particular cases the criminal law entails certain special rules for victims of specific types of crime. E.g. the beginning of the limitation period for sexual abuses of children begins only after the 18^th birthday of the victim in order to secure an autonomous decision to initiate criminal proceedings.

1.3      Is there in your country a definition of vulnerable persons, either in general sense, or particularly within the framework of criminal procedure? If yes, is it established in the law or other legal instruments?

There is no a general definition of the term “vulnerable person” in German Law. However, there are provisions to grant special protection to certain persons during the criminal proceedings and the court hearing, e.g. children (see answers 2.6. – 2.9.).

2. The rights of victims, witnesses and vulnerable persons

2.1      Are there in your country specific rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, in addition to human rights in general?

2.2      If yes, are they established in the law or other legal instruments?

2.3      Please enumerate briefly these specific rights (e.g. the rights to protection, to be treated fairly and with dignity, to be notified, to be present and to be heard at court proceedings, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights).

Questions 2.1. – 2.3 shall be answered cohesively. German law provides the following rights for victims, witnesses and vulnerable persons:

Rights of victims:

Victims of crimes have the right to be represented by an attorney, who also may inspect the files. For certain crimes, victims can join a public prosecution as private accessory prosecutor, who shall be summoned to the main hearing before the court and is entitled to be present at the main hearing even if he is to be examined as a witness.

Furthermore, victims of crimes can bring actions for damages which are to be decided in the course of the criminal proceedings.

In case the prosecution office terminates the investigation, a person whose rights have been infringed by the alleged act in a direct way (aggrieved party) has the right to lodge a complaint with the Higher Regional Court in order to exact public charges. 

Rights of witnesses:

As a general rule, a witness is under the obligation to appear before the court (or before the prosecutor during the investigation) and to give full and true testimony in the presence of the defendant and/or the defence counsel. However, there are exceptions to this rule as to both the duty to testify and to the circumstances under which a testimony is to be given:

Due to section 52 of the German Code of Criminal Procedure close relatives of the accused are entitled to refuse testimony.

Also, certain professionals and professional-assistants who receive confidential information in a consultative capacity (e.g. clergymen, defence counsels, lawyers, and drugs dependency counsellors) are entitled to refuse testimony pursuant to section 53 and section 53a of the German Code of Criminal Procedure.

To secure the freedom of self-incrimination, pursuant to section 55 of the German Code of Criminal Procedure any witness may refuse to give evidence in case the witness would incriminate him- or herself or close relatives by answering a specific question.

Furthermore, special rules govern the protection of witnesses who are threatened by known or unknown persons. The court has a variety of measures at hand: Thus, the witness may be permitted not to provide personal identification data. Pursuant to section 247 of the German Code of Criminal Law, the removal of the defendant during the interrogation of the witness can be ordered. Alternatively, according to section 247a of the German Criminal Code, the court may order the examination of the witness in another location together with the simultaneous audio-visual transmission of the testimony 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 (see also 2.11).

Concerning public officials, their testimony may not be called for if their highest superior authority declares that it would be detrimental to the welfare of the Federation or a German Land. This also applies to the content of files or documents.

To secure their rights, due to section 68 b of the German Code of Criminal Procedure, witnesses are generally entitled to be accompanied by a legal counsel while giving their testimony before the court.

Questions concerning facts which might dishonour the witness should only be posed if unavoidable. The court may intervene at all times, especially in cross examination, to ensure a fair treatment of the witness. In order to protect the interests of a witness with regard to circumstances of his private sphere the court may also, under certain conditions, exclude the public during the testimony, unless there is an overriding interest in public discussion (section 171b German Courts Constitution Act).

However, if a witness refuses to testify without legal reason, he or she shall be subject to a coercive fine or coercive detention (section 71 of the German Code of Criminal Procedure). The witness has a judicial remedy to challenge such a decision.

Rights of vulnerable persons:

German Law does not provide for specific legal rules tailored for “vulnerable persons”. However, there are specific rules for the protection of children (see 2.6. – 2.9.).

2.4      How are victims, witnesses and vulnerable persons informed of their rights? Are there any formal arrangements or informal mechanisms, free access to relevant information and databases etc.?

According to section 406i of the German Code of Criminal Procedure, aggrieved parties have to be informed in writing as soon as possible, and where possible in a language they understand. If there are indications of a particular need for protection, the aggrieved party shall be referred to the appropriate provisions in the further procedure at a suitable point.

According to section 406j of the German Code of Criminal Procedure aggrieved parties are also to be informed about their rights beyond the criminal procedure, as damages for pain and suffering or other compensation, measures against the defendant according to the Protection against Violence Act as well as aid and support through victim aid organisations.

At an early stage of the preliminary proceedings victims, witnesses and vulnerable persons are informed by the police. The police are also under an obligation to assess personal risks for victims and witnesses that may stem from their involvement in the issue and to take protective countermeasures ex officio. Furthermore both the Federal Ministry of Justice and Consumer Protection and the judicial authorities of the Länder provide information sheets about the rights of victims and aggrieved persons in various languages and more information including links to aid agencies for the protection of victims on their homepages.

2.5      What kind of penalties and sanctions are established for violation of these rights?

The information duties are mandatory but their breach is not subject to legal sanction.

2.6      Are there in your country specific rights of vulnerable persons due to their age (children, elderly people) or disability (physical or mental), either as victims or as witnesses?

In addition to the above described rights children and their parents or legal guardians shall be informed about the possibility of recording the examination by audio-visual means and later showing the recordings during trial. In court, a witness under 18 years will only be interviewed by the presiding judge (sections 58a and 241a of the German Code of Criminal Procedure).

There are no specific provisions for disabled or elderly people. However, if a person is not able to appear in court his or her statement shall be recorded audio-visually and the recording reproduced during trial.

2.7      When a decision in criminal matters is likely to affect the rights or the situation of a vulnerable person, is it brought to the attention of other bodies dealing with the rights of that person (e.g. a measure prohibiting contact with his wife for a husband in the event of domestic violence brought to the attention of the court responsible for ruling on the custody of children)?

Any conviction will be passed on to the Federal Central Registry. The courts and the public prosecution offices can obtain information from this database.

Internal guidelines also pledge the prosecution to inform other institutions and authorities about such a decision.

2.8      Can such vulnerable persons bear testimony alone or only following authorisation by their legal representatives, and in this latter case, in what conditions?

There is no general incapacity to testify. In principle, children can bear testimony by themselves and they can be interrogated alone. The specific rules for the protection of children as described above have to be observed.

2.9      Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons? In what conditions?

If minors who have the right to refuse testimony on personal grounds (because of relationship with the defendant) have no sufficient understanding of the importance of their right of refusal to testify, testimony may be taken from such persons only if they are willing to testify and if their statutory representative also agrees to their examination. The same applies to minors or persons placed in care due to mental illness or mental or emotional deficiency when they lack the understanding of their privilege to refuse to give evidence If the statutory representative is accused himself, he may not decide on the exercise of the right of refusal to testify nor may a parent who is not accused, if both parents are entitled to act as statutory representatives (section 52 subsection 2 of the German Code of Criminal Procedure).

2.10    Who proceeds to the evaluation of vulnerable persons and how the risk is assessed? Can the vulnerable person play a role in assessing such a risk? Which protective measures may be adopted and by whom?

In principle, the prosecutor safeguards the rights of vulnerable persons for the duration of the preliminary proceedings. As soon as public charges are brought, it is the court who takes responsibility for ensuring their rights. Upon application aggrieved parties may also avail themselves of the assistance of a psycho-social support during trial (section 406g of the German Code of Criminal Procedure).

In addition, there is a statutory duty following from the Witness Protection Harmonisation Act (ZSHG) for the police to assess individual risks for physical harm and substantial financial losses and to take preventive countermeasures in accordance with the prosecutor. This also includes the possibility for new identities if necessary.

2.11    Are there, in your country, any special procedures that allow testimony to be filmed, recorded and/or given from behind a screen? If so, in what circumstances can this occur?

According to section 247a of the German Code of Criminal Procedure the court may order that the witness remains outside the court room during examination if there is an imminent risk of serious detriment to the well-being of the witness were he or she to be examined in the presence of those attending the main hearing. A simultaneous audio-visual transmission of the testimony shall be provided into 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 for establishing the truth.

2.12    How is the prevention of repeated victimisation ensured?

The prevention of repeated victimisation is ensured for example by the means of audio-visual examination and by recording the testimony of the witness according to section 247a of the German Code of Criminal Procedure (see question 2.11 above).

2.13    Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?

The German Code of Criminal Procedure does not differentiate rights of victims, witnesses and vulnerable persons according to nationalities nor does the Witness Protection Harmonisation Act.

3. Role of prosecutors in protecting the rights of victims, witnesses and vulnerable persons

3.1      How are the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure enforced and guaranteed? What is the role of prosecutors in this matter?

At an early stage of the preliminary proceedings the rights of victims, witnesses and vulnerable persons are ensured by informing them as early as possible of their rights in and beyond the criminal procedure. In practice it is the police who secure this information. Furthermore the prosecutor safeguards the rights of victims, witnesses and vulnerable persons for the duration of the preliminary proceedings.

As to witness protection, the witness has an enforceable right against the police to a fair assessment of his or her risks and the necessary countermeasures.

3.2      Is this role of prosecutors established in the law or other legal instruments? Is this role established in the rules of ethics and professional conduct of prosecutors?

The responsibility of the prosecutor for the preliminary proceedings is established in the law. This includes the safeguarding if the rights of victims, witnesses and vulnerable persons.

3.3      How is this role fulfilled in practice? How do prosecutors cooperate with other organs of state in fulfilling this role, and do prosecutors have supervisory or monitoring functions?

As part of the close cooperation of the prosecutor, who is the formal head of any investigation right from the beginning, and the police all measures of witness protection are usually the result of mutual considerations. The respective Act (section 2 subsection 4 of the Witness Protection Harmonsiation Act) obliges the police to act in mutual consent with the prosecutor.

3.4      Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?

A witness can always address the prosecutor and raise issues that may be relevant. Usually their needs are taken care of by the police who are by law (see 2.10) under the obligation to take all measures necessary to prevent any physical harm or substantial financial loss.

3.5      Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?

Prosecutors have to address the police to create awareness for potential risks for witnesses if police forces are not yet sensitive to these circumstances on their own.

3.6      Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?

There is no duty to do so but prosecutors are not banned from contacting other bodies to the benefit of a witness and will do so if they see a necessity.

3.7      Do the prosecutors benefit from specific training on the protection of the rights of victims, witnesses and vulnerable persons? Does such training also involve prosecutorial staff and law enforcement agencies? Do the prosecutors play a role in carrying out such training?

There is a wide variety of training courses on any subject in connection with criminal proceedings including the protection of witnesses. These courses are held in a special academy funded by the Länder and participation is strongly encouraged by superiors.

3.8      Any other relevant point you wish to raise?

None.