Who is considered a witness to a criminal offence and what is his/her role?
A witness is a person who may have directly or indirectly witnessed facts which are instrumental for solving a crime or concern the subject-matter of the proceedings in any other way and who is to testify thereon in court. The witness is always a person other than the offender.
Witnesses are usually tracked down and questioned by the criminal police. Witness observations and testimonies are instrumental as evidence and for assessing whether a suspicion against an offender can be corroborated or not.
If the offender is indicted, witnesses will usually be re-examined in court by the judge and testify on what they have seen or heard.
When assessing the evidence, the judge has full discretion in giving credence to a witness testimony or not.
As a witness, am I compelled to testify and what happens if I lie?
Witnesses are under a duty to give complete and truthful testimonial evidence. If a witness lies when questioned by the criminal police, the public prosecutor or the court, or gives an incomplete testimony, he/she may be liable for punishment and criminal prosecution for giving false evidence.
Before commencing examination, every witness must be extensively cautioned on his/her duty to give a correct and complete testimony, and informed of the consequences of giving false or incomplete evidence.
As a victim, am I a witness to a criminal act?
Generally, victims are also witnesses, because they have usually witnessed the criminal act themselves and can contribute to its investigation. As witnesses, victims are equally bound to testify and to tell the truth.
When may I refuse testimony as a witness?
In specific circumstances which are clearly set out in the law, witnesses may refuse giving testimony altogether or decline answering certain questions.
Privilege to refuse testimony
Witnesses are exempted from having to give testimony in the proceedings if they would have to testify against a relative.
The following persons qualify as relatives:
- Direct-line relatives by blood or by marriage (parents, grandparents, children, sons and daughters in law, grandchildren and their spouses and/or registered partners);
- Siblings and their spouses and/or registered partners (brother/sister in law) and their children (niece/nephew) and grandchildren;
- Siblings of parents (aunt/uncle) and grandparents and their children (cousin and/or second cousin);
- Spouses, registered partners; also after divorce or dissolution of a registered partnership;
- Siblings of the spouse and/or registered partner (brother/sister in law) and their children (niece/nephew) and grandchildren;
- Life partners and their children and grandchildren; the right to refuse testimony ceases on the dissolution of the life partnership;
- Father or mother of own child
- Persons in your custody or persons who have custody for you.
Persons exempted from giving testimony who have requested civil action in criminal proceedings may not refuse testimony.
Crime victims who have not yet reached 14 years of age on the day of the hearing are not obliged to give testimony.
Likewise, victims who may have been violated in their sexual sphere by a criminal act may refuse to testify again if they have already been questioned in a contradictorial examination in the run-up to the trial. For further details on contradictorial examination in the absence of the offender see further down.
Before every examination, witnesses must be instructed about their privilege to refuse testimony and asked whether they want to exercise this right. If a witness decides to testify in spite of being exempted, he/she must be cautioned of his/her duty to give complete and truthful testimonial evidence.
Even when being exempt from the duty to testify, witnesses must still comply with a witness summons and appear in court.
The privilege not to testify
Persons who would incriminate themselves or their relatives by their statement are exempted from giving testimony.
An accused person who runs the risk of self-incrimination beyond what he/she has already testified may refuse to testify.
Moreover, defence counsels, lawyers, patent lawyers, notaries and chartered accountants have the right to refuse testimony as witnesses on matters they have learned in the exercise of their profession. The same applies to specialist psychiatric doctors, psychotherapists and psychologists, probation officers, registered mediators and staff members of recognised organisations providing counselling and assistance.
Editors, staff members and employees of a media company and media service may also refuse to testify on questions concerning the person of the author or contributor of articles and records, or about information they became aware of in the context of their work.
Every witness must be informed of his/her right to refuse testimony before his/her examination begins. If it emerges only during the examination that such right applies, the witness must immediately be informed of his/her rights.
The right to refuse answering individual questions
A witness may refuse to answer individual questions if he/she would expose him/herself to disgrace or risk a significant direct financial loss.
Victims of sexual crime may also refuse to answer individual questions, if they were to divulge details of the crime which would be unacceptable for them to describe. Likewise, they may refuse answering individual questions if this would disclose circumstances of the witness’ or any other person’s most intimate sphere of life.
However, these groups of persons may be compelled to answer these questions if the answer is indispensable given the relevance of their testimony for the course of the proceedings.
Every witness must be informed of their right to refuse to answer individual questions before the examination starts. Should it emerge only during the examination that such right may apply, the witness must be immediately informed of his/her rights.
Prohibitions to witness examination
Defined groups of persons may not be examined as witnesses; if examined, their testimony would be invalid.
Members of the clergy, for instance, must not be examined as witnesses on matters confided to them during confession, or under the seal of clerical secrecy, as well as public servants on matters subject to official secrecy, unless they have been released from the duty of secrecy. Likewise, persons who are incapable of telling the truth because of a psychic disease or mental disability or any other reason may not be examined as witnesses.
As a witness, do I have to pay for the costs of travel for my examination?
Witnesses are reimbursed for expenses accruing for travel to and from the court; moreover, they are entitled to compensation for time lost if they sustained a pecuniary loss. If a witness needs to spend the night and have meals away from home, he/she is entitled to compensation for accommodation up to a certain amount. Claims for compensation must be submitted within 14 days.
Am I allowed to make an anonymous statement if I am afraid of the offender?
If there are concerns that a witness would seriously endanger him/herself or a third party as regards their life, health, physical integrity, or freedom, by his/her statement because of disclosing their name or any other particulars, or by answering questions which allow to infer such particulars, he/she may be allowed to alter his/her external appearance in a way that does not allow to recognise the person. The face, however, must not be disguised in a way which would make it impossible to recognise their facial expressions, as this is indispensable for assessing the credibility of a testimony.
Is there a possibility to testify in the absence of the offender?
Yes, victims who are witnesses may testify in what is called a contradictorial examination (see Right to sparing treatment)
Is it possible not to appear in court because of frailty or long travel?
If a witness is unable to appear in court because of age, illness or frailty, or because of any other important reason (e.g. living abroad), the witness may be examined using video and audio technology. This will dispense them from having to appear personally in court.