Witnesses in Criminal Tax Proceedings

At the outset, a common misunderstanding in respect of the obligation to appear on the basis of a subpoena by the police or tax investigator must be corrected. Contrary to common opinion, there is no such obligation to appear. A witness is only obligated to appear before a judge and a public prosecutor if subpoenaed, but not before the police or the tax investigator. The police is not entitled to enforce an appearance for questioning and is not entitled to detain a person for this purpose. This also applies, if the witness is to be questioned on behalf of the public prosecutor. Police and tax investigators often use the following sentence in their witness subpoenas: “If you fail to appear, a subpoena will be issued by the public prosecutor.”

The intention is to convey detrimental effects if the witness fails to comply. This is however not the case, because this sentence only reiterates the law in § 161a Sec 1 StPO using different words.

If a subpoena is received from a foreign country, the witness is not obligated to comply, irrespective of who has issued the subpoena. The European legal assistance treaties expressly prohibit sanctions or other detriments for witnesses due to their non-appearance, as stipulated in Art. 8 EuRHÜbk, 52 Sec 3 SDÜ.

If a witness appears before the police or the tax investigator, he is initially only obligated to give information in respect of his identity (name, date of birth, place of residence, etc.). This duty exists regardless of any right to refuse giving evidence, because the personal particulars are not considered evidence. Exception: If the questions aim at identifying the witness, he may refuse to answer them. There is no further duty to give evidence.

If the witness decides to give evidence, he must be truthful. This certainly applies to witness testimony before a judge or public prosecutor. If the witness lies, he will only be liable for prosecution if he lied to a judge. Subjecting a witness to an oath is generally not permissible in questioning a witness. Exceptions are only made for witness testimony before a court. The obligation to give evidence ends, where a witness would incriminate himself or relatives (spouse/de-facto, parents, siblings, children, etc.). The right to refuse to give evidence also exists for certain professions (attorneys, tax advisers, doctors, clergy).

There are personal and professional rights to refuse giving evidence.

Relatives of the accused have a right to refuse to give evidence for personal reasons as set out in § 52 StPO. Relatives under the law are fiancées, spouses, divorced spouses, persons related directly or by marriage, which includes children, grandchildren, great-grandchildren, parents, grandparents, great-grandparents, etc. and their spouses as well as siblings and their children (nephews and nieces), grandchildren (grand-nephew and grand-niece) etc. and their respective spouses. Same-sex partnerships enjoy full equal legal standing in criminal law. Minor adopted children have the right to refuse giving evidence in respect of their biological relatives and have equal legal standing in respect of their adopted parents, which means they have a right to refuse giving evidence in respect of their biological and adopted parents. . This survives a dissolution of the adoption. Adopted children of age are only permitted to refuse giving evidence in respect of their adopted parents, but not the relatives of the latter.

The right to refuse giving evidence based on professional reasons is limited to facts, which became known to the witness in the course of his profession. The following professions have a right to refuse giving evidence as set out in the final enumeration in § 53 StPO:

• Clergy of a recognised religious community (Christian, Jewish and Christian-Orthodox religious communities; clergy of Jehova’s Witnesses and Muslim clergy are not recognised);
• The defence attorney of the accused in respect of information learned during his mandate.
• Attorneys (other members of a bar association), patent lawyers, notaries, auditors, sworn accountants, tax advisers and tax fiduciaries, physicians, dentists, psychological psychotherapists, psychotherapists for children and juveniles, pharmacists, midwives in respect of the information learned by them in their respective capacities;
• Drug- and pregnancy counsellors,
• Members of the federal Parliament, the state parliaments and the European Parliament;
• Members of the press an public broadcasting companies (protection of the anonymity of the source of information).

Any lawyer may serve as witness assistant. If the lawyer appointed for witness assistance is at the same time the defence attorney of the accused, this is only permissible if the lawyer can represent both clients without a conflict of interests. If the facts giving rise to the witness testimony is unknown to the lawyer who is appointed to witness assistance, he will have the witness explain the facts to him.

The witness assistant will then draft possible statements and assist in their wording. It is paramount to prevent a witness risking his neck with careless talk in cases of economic crime and tax fraud. It must be noted here, that the lawyer acting as witness assistant is prohibited from abetting or facilitating false testimony.

The lawyer assisting the witness is not entitled to inspect the case files, as was expressly confirmed by the Federal Constitutional Court. Different rules apply, if the lawyer assisting the witness represents the accused at the same time. Depending on the value of the witness testimony for the police or tax investigator, it may be the case that investigation officers will nevertheless furnish extracts from the case files for the purpose of motivating the witness to give testimony.

During testimony, the witness assistance must ascertain, that the witness is able to give testimony in respect of the circumstances. Unnecessary and compromising questions must be objected against by the witness assistant by requesting the interrogating officers to stick to the case, otherwise the witness will discontinue his testimony. The witness assistant may at any time interrupt the testimony given by his client. He should interrupt it, if the witness appears to incriminate himself during testimony. It is therefore permitted, that the witness and his assistant discuss the matter in private.

Witness protection by the police is regulated in the Witness Protection Act (Zeugenschutzgesetz, ZSHG). Under § 1 Witness Protection Act, witnesses whose testimony is crucial for the investigation of a case or who hold exclusive information on the whereabouts of an accused, may be granted special protection, if their willingness to give testimony entails a risk to life and limb, freedom or material assets and are suitable for witness protection measures.

Relatives of the witness and persons close to him may also be protected. The main protection measure is anonymity as set out in § 4 ZHSG. The provision of a temporary false identity, which will be used by the person in legal transactions, as set out in § 5 ZSHG is another option. § 2 Sec 1 ZSHG stipulates, that the police or federal / state witness protection authorities are responsible for the protection of a person under the ZSHG. Such witness protection authorities are established with the Federal Agency for Criminal Matters (BKA) and in all federal states; they are legally separate from the investigating authorities.

The procedural witness protection includes a duty of care by the court. Under this duty of care, the legal position of the witness must be protected against prosecuting authorities as well as against third parties. It includes the protection of life and limb as well as personal data and the witness’ honour. One possible protection measure, among others, is the option of giving testimony via video-link, which aims at preventing local exposure of the witness.