Summoned as a witness in Germany: when you must attend and when a Zeugenbeistand helps

Three summonses look alike and have different effects.

Court. Under § 48 Abs. 1 Satz 1 StPO witnesses are obliged to appear before the judge at the date fixed for their examination. Under § 48 Abs. 2 StPO the summons is issued with a reference to provisions that serve the interests of the witness, to the forms of witness support available and to the statutory consequences of not appearing.

Staatsanwaltschaft. Under § 161a Abs. 1 Satz 1 StPO witnesses are obliged, on being summoned, to appear before the Staatsanwaltschaft and to testify on the matter. Examination on oath remains reserved to the judge.

Police. Here lies the point that is most easily reported wrongly. § 163 Abs. 3 Satz 1 StPO obliges witnesses, on being summoned, to appear before Ermittlungspersonen of the Staatsanwaltschaft and to testify on the matter where the summons rests on an instruction from the Staatsanwaltschaft. The blanket statement that one never has to go to the police does not reflect the version in force. Whether the requirements are met can be assessed only on the basis of the particular summons.

§ 52 Abs. 1 StPO entitles certain relatives of the accused person to refuse to testify: the person's fiancé or fiancée, the spouse, including after the marriage has been dissolved, the civil partner, including after the civil partnership has been dissolved, as well as persons who are or were related to the accused person in the direct line or related by marriage, or related in the collateral line up to the third degree or related by marriage up to the second degree. Under § 52 Abs. 3 StPO instruction about this must be given before every examination; a waiver once declared may be revoked during the examination as well.

§ 53 Abs. 1 StPO gives members of professions bound to secrecy a right of their own, among them members of the clergy, defence lawyers, other lawyers, doctors and psychotherapists, in each case as regards what has been entrusted to them or become known to them in that capacity. Under § 53 Abs. 2 Satz 1 StPO the right falls away for part of these groups where they have been released from the duty of confidentiality. § 53a Abs. 1 StPO extends the protection to persons assisting them; as a matter of principle it is the members of those professions who decide whether the right is exercised.

Under § 68b Abs. 1 Satz 1 und 2 StPO witnesses may make use of a lawyer as assistant; a lawyer acting as assistant who has appeared for the examination is permitted to be present. § 68b Abs. 1 Satz 3 und 4 StPO names the cases in which the assistant can be excluded from the examination, for instance where particular facts justify the assumption that the assistant took part in the offence under investigation or does not appear committed to the interests of the witness alone.

Under § 68b Abs. 2 Satz 1 StPO a witness who has no lawyer as assistant at their examination, and 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 from which it follows that the witness cannot exercise their own powers at the examination. In the investigation proceedings this is decided by the Staatsanwaltschaft under § 163 Abs. 4 Satz 1 Nr. 3 StPO.

A Zeugenbeistand is not a defence, because a witness is not an accused person. The assistant does not have inspection of the case file in the way that the defence does. For private individuals a lawyer can obtain information from the file under § 475 Abs. 1 StPO in so far as they set out a legitimate interest; on the requirements of § 475 Abs. 2 StPO, Akteneinsicht (inspection of the case file) can be granted.

Compensation is governed by the Justizvergütungs- und -entschädigungsgesetz, the statute on judicial remuneration and compensation, abbreviated JVEG. § 19 Abs. 1 JVEG names, among other things, reimbursement of travel costs, compensation for loss of time, for disadvantages in running the household and for loss of earnings. Compensation for loss of time amounts under § 20 JVEG to 4 euros per hour, that for disadvantages in running the household under § 21 JVEG to 17 euros per hour, and that for loss of earnings under § 22 JVEG to at most 25 euros per hour. It is granted under § 19 Abs. 2 Satz 3 JVEG for no more than ten hours per day.

The time limit matters: under § 2 Abs. 1 Satz 1 JVEG the claim lapses if it is not asserted within three months before the body that called upon the person entitled. Instruction must be given about the time limit and about when it begins. Under § 1 Abs. 3 JVEG being called upon by the police on the instruction of the Staatsanwaltschaft, or with its prior approval, is equivalent to being called upon by the Staatsanwaltschaft.