What does it mean to be a witness?
Witnesses help the court to take the right decision. By giving evidence in court, they comply with a crucial civic duty. You may find some general information in a brochure published by the North Rhine-Westphalia Ministry of Justice, "Was Sie über Rechte und Pflichten des Zeugen wissen sollten" (available only in German).
Do I have to go to court to give evidence when I am summoned to appear as witness?
Under the law, everybody must appear before the court to give evidence when asked to do so. This also holds true when you think you are unable to say anything about the incident in question or cannot remember it, and even if you already gave evidence to the police, the public prosecutor or the court in this matter. However, a witness may be released from the obligation to appear before the court if he or she is unable to appear for good cause, e.g. in cases of illness. This does not apply to your normal occupational duties as your employer has a legal obligation to allow you the necessary time off to enable you to give evidence. If you are unable to appear as witness, you must notify the court without delay stating the reasons and - where possible – furnishing reasonable proof (e.g. a medical certificate). It is incumbent on the witness to establish whether his or her excuse has been accepted. If the excuse has not been confirmed, the witness must appear before the court.
What are the consequences if the witness fails to appear without valid excuse?
If the witness fails to appear without valid excuse, the court may impose on the witness the costs due to his or her failure to appear. On top of that, the court may impose an administrative fine or custodial sanction by way of substitution where the fine cannot be recovered. In individual cases, a court may even order compulsory attendance of a witness who failed to appear to give evidence.
As a witness, do I have a right to refuse to give evidence before the court?
Anyone who has been summoned to appear as witness must give full evidence in accordance with the truth. Under German law, there are a few exemptions where a witness has a right to refuse to give evidence, e.g. where the witness is the fiancé(e), spouse or civil partner of, or related in direct line or by marriage to the defendant or a party to the proceedings. Moreover, a witness may refuse to answer any questions the reply to which would expose him or her or a close relative to the risk of prosecution for a criminal or administrative offence or bring dishonour to the witness or a close relative or would result in any direct loss of property. Furthermore, members of certain professions have a right to refuse to give evidence which is, however, restricted to their professional activity, e.g. doctors, clergymen, lawyers, notary publics and journalists. More detailed information will be given by the court.
Can a witness be forced to give evidence?
Where a witness refuses to give evidence without good cause, the court may – just like in the case where a witness fails to appear without valid excuse - impose an administrative fine or, where appropriate, a custodial sanction to urge the witness to give evidence.
What are the consequences of giving "false evidence"?
A false statement ca. have serious consequences for the parties to proceedings. That is the reason why witnesses must give full evidence in accordance with the truth. Anyone who gives false evidence is liable to severe sanctions. For instance, a witness who commits perjury will be liable to a minimum term of imprisonment of one year. Witnesses who are not under oath and deliberately give false evidence are liable to a minimum term of imprisonment of three months. Similarly, witnesses who give false evidence under oath by negligence, though not deliberately, render themselves liable to prosecution.
When will a witness be asked to take the oath?
Witnesses have to take the oath only where the court considers this to be expedient given the relevance of the evidence or where it wants to make sure that the witness tells the truth. Children and youths below the age of 16 and – in criminal proceedings – individuals who are suspected of being involved in the crime with which the defendant is charged will not be asked to take the oath.
Can a witness prepare for giving evidence?
If you have taken notes or have other documents relating to the matter, it may be useful to read these again before the hearing begins. In that case you should bring the notes/documents to the hearing and tell the court that and how you prepared for giving evidence.
Can a witness claim expenses?
Anyone who gives evidence in court ca. claim expenses, especially for travelling to court and an allowance for loss of earnings. Witnesses ca. also request an advance for travelling expenses if they are unable to pay for travelling to court. After the hearing, the court will hand out a form to the witness with which he or she ca. claim their expenses. However, payments will be made by bank transfer only, so you should have your banking details ready.
There are security checks of people entering the court building. You should therefore allow for queues due to the security checks, especially in the morning.
Is there a separate room for witnesses?
The Landgericht Bonn has a separate room ("Zeugenzimmer") for people who have been called as witnesses. This room is intended to provide witnesses with a quiet and protected place while waiting for a hearing. It is especially meant to give people who have been victims of acts of violence a place where they ca. retreat and avoid contact with the accused person or with the general public while waiting for a hearing.
If you wish to use this room, please feel free to contact the court at +49-228-702-0 or send an email to firstname.lastname@example.org
What lay judges need to know . . .
Why are there lay judges in Germany?
The use of lay judges has a long tradition in Germany and, in fact, has never been seriously challenged irrespective of repeated amendments to the Code of Criminal Procedure (Strafprozessordnung) and the German Court System Organisation Act (Gerichtsverfassungsgesetz). The reasons for involving lay judges in criminal justice include:
Representative involvement of the public in the ajudication.
Maintaining and strengthening the public's confidence in the adjudication by immediate involvement.
Improving the public's legal knowledge and understanding of the adjudication including any problems that may occur. For anyone who is directly confronted with the accused and who has to judge his or her crime taking into consideration all the circumstances and his or her entire biography is likely to better understand a sentence that may be strongly criticised by the media.
Contributing 'common sense' to criminal proceedings leading to a sentence.
Need for regular judges to express their own – legal expert – considerations in easily understandable language.
Regular judges keep up-to-date as lay judges contribute their expertise and experience of life.
Where are lay judges used in the first place?
Lay judges assist in criminal cases before local and regional courts, i.e. they sit in criminal courts called "Schöffengerichte" at the local court, and in criminal divisions called "Kleine Strafkammer" and "Große Strafkammer" at the regional courts.
"Schöffengerichte" normally consist of one regular and two lay judges and deal with medium level offences which ca. be punished with imprisonment of up to four years, whereas petty offences which ca. be punished with imprisonment of up to two years are dealt with by a single regular judge called "Strafrichter".
Criminal cases involving serious crimes are heard and decided by the "Große Strafkammer" at the regional courts. In addition, the regional courts have "Kleine Strafkammern" which have jurisdiction with regard to appeals from judgments given or sentences passed by a "Schöffengericht" or a "Strafrichter" at the local courts.
What is the legal status of a lay judge?
During the court hearing, lay judges, by virtue of the law, exercise the same functions as the regular judge(s). Therefore, regular and lay judges jointly decide on both the question of guilt and the sentence. Moreover, lay judges, far from being confined to the role of passive listeners during the hearing, ca. address questions to the accused and to witnesses. In deliberations and when a judgment is formed, the vote of a lay judge has the same weight as that of a regular judge.
How are lay judges compensated?
Lay judges are compensated under the Judicial Remuneration and Compensation Act (Justizvergütungs- und Entschädigungsgesetz, JVEG). For the time lay judges spend on their duties they are paid € 5.00 per hour. In addition, they are compensated for loss of earnings up to certain maximum amounts and travelling expenses.
How are lay judges elected?
The total number of lay judges to be elected is fixed by the president of the regional court. On the basis of the total number of lay judges needed, the local councils within the court district of the regional court draw up shortlists comprising twice as many candidates as the required number of lay judges. The number of lay judges per municipality located in the court district of a regional court is fixed by the president of the regional court on the basis of the population of each town or municipality.
The lay judges are elected from among the candidates on the shortlists by an election committee which consists of one judge of the local court, one administrative officer and ten representatives for the counties and unincorporated cities. The election committee elects the lay judges for the "Schöffengericht" at the local court and for the criminal divisions ("Kleine und Große Strafkammer") at the regional court in accordance with the share-out key fixed by the president of the regional court.
When electing the lay judges, the election committee must see to it that all groups of the population in terms of age, gender, occupation and social status are adequately taken into consideration.
The lay judges are then distributed by lot to the various courts, i.e. "Schöffengericht", "kleine Strafkammer" and "große Strafkammer".
Duration of the term of office of a lay judge
Lay judges are elected for a period of five years. They are eligible for reelection. However, after two consecutive terms of office they cannot be reelected for a third successive term of office.
Who is eligible to become a lay judge?
In principle, every German is eligible to become a lay judge. There are, however, a few exemptions including:
People who have previous convictions or who are under investigation by the public prosecutor.
People under the age of 25 or over 70 at the time the term of office begins, people who have been living in the municipality for less than one year, and mentally or physically disabled people.
People who hold high offices, top government officials, police officers and other law enforcement officers.
People who served two consecutive terms of office as lay judges should be re-elected only after five years.
Members of the former state security service of the GDR.
People who do not have a solid command of the German language.