Processes - BGH sets limits on partial waiver of right to refuse testimony
According to a decision by the Federal Court of Justice (BGH), anyone who does not want to testify against a relative in court and wishes to make use of the right to refuse to testify cannot only allow the partial use of previous statements. Rather, this means that all previous statements are unusable, the first criminal senate in Karlsruhe ruled on Friday. The only exception to this is judicial interrogations after those affected have been informed of their right to refuse to testify. In the specific case, the BGH overturned a ruling by the Constance district court against a man for multiple rapes of his sister, among other things. The case must be retried. (Ref. 1 StR 222/23)
According to the information provided, the right to refuse to testify serves to protect the witness "from having to contribute to the incrimination of a relative through his testimony, which is subject to the duty to tell the truth". This is accompanied by a ban on the use of evidence. Until the main hearing, however, a witness is free to decide whether an earlier, perhaps premature or ill-considered statement may be used. This could help to clarify the facts. However, in the interests of the accused and the general public in investigating the truth, the influence of the witness on the extent to which previous statements can be used and thus on the criminal proceedings has limits, according to the ruling.
In January, the Constance Regional Court found a 21-year-old guilty of 5 counts of rape, 10 counts of dangerous bodily harm and 40 counts of intentional bodily harm and imposed a prison sentence of four and a half years. The defendant's sister had given permission for information she had provided to a psychological expert witness to be used. The juvenile court took this into account, but not a police interrogation. According to the BGH ruling, however, the witness's waiver of the ban on the use of evidence in this form was ineffective. Despite the forensically documented injuries, it could not be ruled out that the court would have reached a different conclusion without the information provided by the witness to the expert witness.
Decision of the Code of Criminal Procedure on the right to refuse to testify
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- Despite the limitations set by the Federal Court of Justice (BGH) on the partial waiver of the right to refuse testimony, some defendants in Bodily injury cases in Baden-Württemberg still attempt to use previous statements, including in processes related to rape accusations.
- The Constancy district court's judgment, which allowed a partial use of a witness's previous statement in a case of Criminality, was overturned by the Federal Court of Justice (BGH) due to concerns regarding the constancy and reliability of evidence.
- In Germany, the right to refuse to testify serves as a safeguard against the witness being compelled to contribute to the incrimination of a relative, but this protection can be limited in the interest of fair and thorough processes in the Federal Court of Justice (BGH).
- The Federal Court of Justice (BGH) in Karlsruhe has issued several judgments on the use of evidence in cases involving Bodily injury and rape, emphasizing the importance of maintaining the constitutional principle of a fair trial and the protection of both the accused and the general public.
- Some experts argue that the constancy of testimony is a critical factor in the investigation and prosecution of Criminality cases, with potential implications for the outcome of proceedings in the Federal Court of Justice (BGH).
Source: www.stern.de
