Who is considered a witness to a criminal offence and what is his role?
Any person who has personally witnessed anything relevant to the investigation of the crime in question or anything that might be of significance to the proceedings can be a witness. In general, anyone can be a witness as long as they are able to perceive facts and report on them. Even small children can thus be witnesses. Perceptions from the occurrence by the victim – which is often the case – mostly leads to being heard in the proceedings as a witness. In this situation the victim has the rights and the duties of a witness.
A witness assists in ascertaining what actually happened. He is usually questioned by the police or the prosecutor’s office already during the investigation. However, a witness will generally have to testify again during the trial, as the judge is required to base his judgement on the content of the trial as a whole.
For the protection of the victim in certain cases the testimony can be renounced.
Does a witness has to testify?
A witness is generally required to make a true and complete statement. A summons by a prosecutor or a judge must always be obeyed. Prior to his testimony, the witness will be advised in detail of his duty to give true and complete testimony and of the legal consequences of false or incomplete testimony.
When can a witness refuse to provide testimony?
In certain cases, the law allows a witness to refuse testimony or to refuse answering specific questions.
Right to refuse testimony:
The right to refuse testimony releases the witness from the duty to testify and to give an oath. However, the witness is still required to make an appearance at court or at the prosecutor’s office and to give information relating to his own person. The right to refuse testimony already applies during the investigation. A person may be entitled to refuse testimony for personal or professional reasons. A witness who has been questioned prior to the main proceedings can still exercise his right to refuse testimony during the trial. In this case, the earlier testimony cannot be read during the trial, so as not to circumvent the right to refuse testimony.
Right to withhold information:
A witness has a right to withhold information, if this testimony would put the witness or one of his relatives at risk of prosecution for a criminal or administrative offence.
Does a witness has to bear the cost of travelling to the place where he is being heard?
The witness who is summoned is reimbursed for the cost of travelling to the court and also paid an expense allowance.
Can a witness withhold his personal information (address) from the offender?
If this is required to protect the victim or other people, the victim may refuse to give its residential address and instead give a different address (an address to which documents may be served). This could be the address of a lawyer, for example. If the witness is at risk of his life, limb or liberty, it is possible to exclude all information in the hearing about his identity in particularly serious cases. The prosecutor’s office will keep the personal information separate from the criminal files.
Is it possible to testify without the offender being present?
In exceptional, very serious cases, a direct confrontation with the offender can be avoided. This is accomplished by testifying via a video conference or the defendant can be removed from the court room during the questioning.
Is it possible to avoid appearing in court for reasons of a frail constitution or because of the length of the journey?
In general, the witness is obligated to appear before the court. Exceptions can apply in rare cases, subject to a decision by a judge. If age, illness, or other important reasons (for example foreign place of residence) make it impossible to appear before court, the court can order that the questioning be conducted via video conference. In addition, under certain circumstances, the record of a witness’ earlier testimony may be read during the trial instead of personally questioning the witness at court.
