Empty courtroom with a single chair standing in front of the benches.

Trial

One word against another in German criminal proceedings

Author: Rechtsanwältin Virginia Elisabeth von Burgsdorff
Published: 22 July 2026
Last updated: 10 August 2026
Topics: Trial
8 minute read: 8 minute read

Aussage gegen Aussage (one account against another) means this: the account of a single person stands against the account of the accused person, and there is no other evidence, or only evidence at the margins. The law contains no special rule for this situation. § 261 StPO applies: the court decides on the result of the taking of evidence according to its free conviction drawn from the hearing as a whole. There is therefore no ranking under which one account would be worth more than the other from the outset, and there is no rule under which two accounts cancel each other out.

This text describes what the court examines and what rights exist in the proceedings. It does not tell anyone what to say.

What Aussage gegen Aussage means in practice

This evidential situation arises in many sets of proceedings, not only in sexual offence cases. It is just as typical in cases of assault after an argument without witnesses, in cases of insult, of threats, or where the allegations come from within the household.

What these cases have in common is that the court has to form its conviction essentially from what is said at the main hearing. Surrounding circumstances therefore carry more weight: the sequence of events in time, earlier statements to the police, message histories, medical records.

How the court assesses the evidence

Two provisions set the framework.

§ 261 StPO contains the principle that the court assesses the evidence freely. The court is bound by no rule of evidence. It has to form its conviction from the hearing as a whole and to give reasons for that conviction in its judgment.

§ 244 Abs. 2 StPO obliges the court to investigate: in order to establish the truth, it has to extend the taking of evidence of its own motion to all facts and means of evidence that are of significance for the decision. This duty exists whether or not anyone makes an application to take evidence. In a situation of one account against another, it is the lever through which the defence and the Nebenklage, the injured person taking part in the proceedings as an accessory prosecutor, can work towards having the way an account came about fully investigated.

The case law of the Federal Court of Justice places particular requirements on the assessment of the evidence and on the reasons for the judgment in this situation (the leading decision being BGH, judgment of 29 July 1998, 1 StR 94/98, BGHSt 44, 153). In particular, it is required that the judgment show that the court has considered all the circumstances that may speak for and against the accused person, and that it give reasons why it follows one account. According to that case law, this includes a careful examination of the content of the account, of how it came about and of possible motives for making it, as well as an examination of whether the statements have remained the same over time.

Why the questioning at the main hearing counts

Where proof of a fact rests on the perception of a person, that person is to be examined at the main hearing under § 250 Satz 1 StPO. Under sentence 2, the examination may not be replaced by reading out a record of an earlier examination or a written statement.

The court is to hear the person itself, to be able to ask questions and to form a direct impression. A police record does not take the place of that.

An exception is set out in § 255a StPO. Under subsection 1, the provisions on reading out records of examinations apply accordingly to the showing of an audiovisual recording of the examination of a witness. Subsection 2 allows, on narrow requirements, the examination of a witness under 18 years of age to be replaced in the case of certain offences by showing the recording of an earlier judicial examination. The law names two requirements side by side. First, the accused person and their defence lawyer must have had the opportunity to take part in the earlier examination; that is precisely why it matters whether a defence was already involved at that early stage. Second, the witness must not have objected, immediately after the recorded examination, to the showing of the recording in place of an examination. That objection is tied to the moment immediately after the examination; anyone who raises it later is not raising it within the meaning of the provision.

When does a Glaubhaftigkeitsgutachten come into consideration?

A Glaubhaftigkeitsgutachten (an expert opinion on the credibility of an account) is expert evidence. Whether one is obtained is governed by the duty to investigate under § 244 Abs. 2 StPO and by § 244 Abs. 4 StPO. Under that provision an application to hear an expert may, unless otherwise provided, also be refused where the court itself has the necessary expertise.

That is the decisive point: courts proceed on the basis that assessing an account is part of their own task. An expert opinion comes into consideration where there are particular features in the individual case that go beyond ordinary assessment. There is no right to one.

What rights witnesses have

Anyone summoned as a witness has rights about which they must be instructed.

§ 52 StPO gives relatives a Zeugnisverweigerungsrecht (a right to refuse to testify). Under subsection 1 this covers, among others, the person's fiancé or fiancée, spouses and civil partners, including after the marriage or civil partnership has been dissolved, as well as persons who are or were related in the direct line or related by marriage, or who are or were related in the collateral line up to the third degree or related by marriage up to the second degree. Under § 52 Abs. 3 StPO those entitled are to be instructed before every examination.

§ 55 StPO gives every witness an Auskunftsverweigerungsrecht (a right to refuse to answer particular questions): they may refuse to answer questions the answering of which would expose them, or one of the relatives designated in § 52 Abs. 1 StPO, to the risk of being prosecuted for a criminal offence or a regulatory offence. Instruction must be given about this as well (§ 55 Abs. 2 StPO).

§ 68a StPO limits the right to ask questions. Questions about facts that could bring dishonour or that concern the personal sphere of life should, under subsection 1, be asked only where this is indispensable. Questions about circumstances that concern the witness's credibility in the case at hand, in particular about their relationships with the accused or the injured person, are, under subsection 2, to be asked in so far as this is necessary.

§ 68b StPO governs assistance for witnesses. Under subsection 1, witnesses may make use of a lawyer as assistant, who is permitted to be present. Under subsection 2, a witness without a lawyer as assistant, whose interests worthy of protection cannot be taken into account in another way, is to be assigned one for the duration of the examination where special circumstances are present.

What false statements mean

Two provisions should be named for completeness, without any suspicion against anyone following from that.

§ 153 StGB makes a false statement not given under oath a criminal offence. Anyone who, as a witness or expert, gives a false statement not under oath before a court or before another body competent to examine witnesses or experts under oath is liable to imprisonment of three months to five years.

§ 164 StGB makes false accusation a criminal offence. Under subsection 1, anyone who, against their better knowledge, accuses another person before an authority or publicly of an unlawful act with the intention of causing official proceedings against that person to be brought or continued is liable to imprisonment of up to five years or a fine. Subsection 2 covers other assertions of fact made against better knowledge with the same aim.

Both provisions require that the incorrectness be established, and § 164 StGB requires in addition that it was against better knowledge. An account that is not confirmed in the proceedings is therefore not yet a criminal offence.

One word against another in cases under § 177 StGB

Where the allegation is sexual assault, sexual coercion or rape, this evidential situation arises frequently, because such offences typically happen without witnesses. § 177 Abs. 1 StGB makes sexual acts against the recognisable will of another person a criminal offence and provides for imprisonment of six months to five years. Subsection 2 covers further groups of cases. In particularly serious cases, imprisonment of not less than two years is to be imposed under § 177 Abs. 6 StGB; the provision names there, among other things, the performance of sexual intercourse and commission by several persons.

The rules of evidence do not change as a result. § 261 StPO and the duty to investigate under § 244 Abs. 2 StPO continue to apply.

Frequently asked questions

Is a single account enough for a conviction?

The law knows no rule of evidence that would rule this out. The court decides under § 261 StPO according to its free conviction. But it also knows no rule under which one account suffices as a matter of course. What is decisive is the overall assessment in the individual case.

Do I have to testify as a witness if the accused is a relative of mine?

§ 52 Abs. 1 StPO gives a defined group of relatives the right to refuse to testify. Instruction about that right must be given before every examination under § 52 Abs. 3 StPO. Whether and how it is exercised is a decision that can be accompanied by a lawyer; § 68b StPO provides for assistance for witnesses.

Can I apply for an expert to assess the account?

An application to take evidence is possible. Under § 244 Abs. 4 StPO it can be refused where the court itself has the necessary expertise. Whether there are particular features in the individual case that suggest an expert opinion can only be assessed after inspection of the case file.

What happens to earlier statements made to the police?

Under § 250 StPO the person is to be examined in person at the main hearing; the examination may not be replaced by reading out a record. Earlier statements can, however, play a part in the course of the examination, for instance where there are discrepancies. § 255a StPO deals separately with when a recorded examination may be shown.

This information is general in nature and does not replace advice on an individual case. It reflects the statutory texts as checked on 10 August 2026.