What are statements and purposes

Section 55 StPO: Right to refuse to provide information

The right to refuse information according to § 55 StPO

§ 55 StPO right to refuse information

(1) Every witness can refuse to provide information on questions the answer to which he or one of the relatives referred to in Section 52 (1) would run the risk of being prosecuted for a criminal offense or an administrative offense.
(2) The witness is to be instructed about his or her right to refuse to provide information.

 

In contrast to that Right to refuse to testify According to Sections 52 ff. of the Code of Criminal Procedure (in which one has to have a special relationship with the accused), that can Right to refuse to provide information according to § 55 StPO, every witness is entitled in principle.

The prerequisite is that one would expose oneself or a relative (persons referred to in Section 52 (1)) to the risk of being prosecuted for a criminal offense or an administrative offense.

In principle, the court must instruct the witness about his or her right to refuse to provide information. As a rule, however, this only happens when there are concrete indications that the witness could incriminate himself with his testimony. This means that the court already suspects that “something could be there” or that this suspicion arises in the course of the testimony.
It is therefore advantageous to know this right before the court has such concrete evidence so as not to provide it in the first place through its testimony.

In contrast to that Right to refuse to testify concerns that Right to refuse to provide information but only those parts of the statement that could justify this danger. So one does not hold the right not to make any statements in general, but only to conceal things that could justify this danger. You have to testify to all other questions and facts.

The whole point of this rule is to protect the witness - not the defendant. In order to spare the witness an emotional predicament, it supplements the witness's freedom to testify as a conceivable accused (Section 136 StPO) and the witness's right to refuse to give evidence that the witness is neither himself nor a relative (who is not accused / accused) when giving evidence , otherwise § 52 StPO).

So it represents, so to speak, a “forward shift” of the other rights to testify, since without Section 55 StPO the witness would have to incriminate himself, then be considered a suspect of a criminal offense (ie a preliminary investigation would be initiated against him), and the accused would have the right to refuse to testify according to § 136 StPO and would then no longer have to make a statement. In this case, however, a preliminary investigation would be pending against him. Section 55 of the Code of Criminal Procedure aims to avoid this result.

In contrast to Section 52 of the Code of Criminal Procedure, the right to refuse to give evidence is “limited” to those parts of the statement that may justify the risk of criminal prosecution. This right can only extend to the entire testimony in very exceptional cases, e.g. if an accomplice of the accused is heard as a witness and practically no question is conceivable that the witness would not incriminate himself as an accomplice with answering.

In the case of the right to refuse to provide information, the witness must also substantiate the reason for refusal in accordance with Section 56 StPO.

However, this is sometimes a problem in practice.
It is true that information about the act, for which there is a risk of persecution, may not be requested. This would also not be possible at all without incriminating yourself and would therefore be in contradiction to the sense and purpose of Section 55 of the Code of Criminal Procedure. The substantiation therefore actually only extends to the witness's assumption that there is a risk of self-incriminating.
However, in practice, this principle is sometimes handled differently by the courts (for understandable but sometimes dubious reasons) if it now appears that no crime by the witness at all appears possible. Otherwise, every witness could claim "in the dark" that he does not have to testify in order not to incriminate himself, whereas in truth he only wants to protect his accused buddy.