116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSORGANIZED CRIME / WITNESS PROTECTION IN GERMANY
Johan Peter Wilhelm Hilger *I. INTRODUCTION
As we are aware, organized crimedemands the use of particularly effective
investigation methods for its detection andsuppression, as well as particularly
effective measures to protect witnesses.
Organized crime has the lack of scruple andthe special power to use its considerable
financial resources and connections tointerfere with detection, in particular to
intimidate witnesses and even, wherenecessary, to silence them. Detection must,of necessity, remain insufficient, andindeed fail, if witness protection does notwork1.
In Germany, there are no specific legal
provisions to protect witnesses againstorganized crime. There is however a large
number of regulations aimed to protect
witnesses - largely independently of thenature of the offence committed; such
regulations are, for instance, also
applicable to terrorist crimes or offences
against sexual self-determination, and they
can be applied in respect of the criminal
offences of organized crime. In overallterms, there is a need here to distinguishbetween B. Regulations in criminal
proceedings and C: Regulations in very
general terms to avert danger.
II. PROVISIONS IN CRIMINALPROCEDURE LAW
The provisions for the protection ofwitnesses in criminal proceedings permit* Former Head of Division of Judicial System,
Federal Ministry of Jstice, Germany
1 Government of FRG BT-Dr 13/8156.

the investigation authorities and courts toproceed in several stages2. They depend
upon the gravity of the threat to or
endangerment of the witness and the needfor a particular intensity of protection.
A. Section 68 of the Code of
Criminal Procedure (StPO)In accordance with section 68 subsection
1 second sentence, witnesses who havemade their observations in an official
capacity (such as police officers on duty)
are always entitled (but not obliged) tostate their place of work instead of theirplace of residence3.
Independently of this provision, any
witnesses may be permitted by the person
leading the questioning to state theirbusiness or workplace instead of their placeof residence, or another address where asummons may be served, if it is to be feared
that, otherwise, he/she or anotherindividual is threatened in relation to any
protected legal interest. Under the samepreconditions, the witness may bepermitted to refrain from giving
information as to where he/she can bereached (section 68 subsection 2 of the Codeof Criminal Procedure).
In accordance with section 68 subsection
3 of the Code of Criminal Procedure, theidentity of a witness (i.e. at most all

2Renzikowski JZ 1999, 605 ; Griesbaum NStZ 1998,
433.
3 The same applies as well to all other office-holders,
but not in cases where notice is taken of a matterin a business context ; here ,if need be, recourse
may be had to section 68 II 1 StPO99

RESOURCE MATERIAL SERIES No. 58
personal information) 4 may be kept
confidential if there is reason to fear (thewording of the statute does not require aparticularly high probability) that
disclosure will place at risk the life, limb
or freedom of the witness or of anotherindividual. The documents relating toidentity are kept at the public prosecution
office, in other words they are not initiallysubmitted to the court - and for this period
there is also no inspection of thedocuments. They are not to be added to
the file until the threat has ceased to apply.
If witnesses are listed in the written charge
or in a subsequent summons whose identity
is not fully disclosed, this circumstance isto be stated.
An exemption from stating one’s identity
does not release one from the duty to statein the main trial5, when asked, in what
capacity the observations were made. Thisis aimed at undercover investigators inparticular6.
B. Section 68b of the Code of
Criminal ProcedureThis provision brings about animprovement in witness protection in thatlegal counsel may be appointed to thewitness ex officio and at the expense of thestate if the witness is unable to exercise
his/her rights in person during questioning.
In the case of witnesses to major crimes orto criminal offences committed on a4

Where a wittness at risk has been given a “newidentity” it may be sufficient - and therefore
necessary in terms of the proportionality principle- for only the new identity to be kept secret.
5 This duty does not apply to interrogations during
investigation proceedings.
6 As regards those questions to which the accused’s
right to put questions also applies , the fact thatthe prosecuting authorities used under coverinvestigators may be revealed during the main
court hearing. If this is to be definitely avoided
such witnesses will have to be dispensed with.

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commercial or gang basis, i.e. offences oforganized crime, such counsel for thewitness is appointed as a rule. Counsel isto ensure in particular that the witness isable to assert his/her rights of defence andprotection, and must try to ensure that theprocedural measures available under thelaw as it stands to protect witnesses areapplied to the necessary degree.
C. Section 223 of the Code of
Criminal Procedure
In accordance with this provision, if
there is an insuperable obstacle to awitness appearing in the main trial for alonger period or indefinitely, the court mayorder the witness to be questioned by anappointed judge. However, the defence
counsel and the accused are entitled toattend such questioning. Having said that,
it is permissible for the accused to be
temporarily removed from questioning inaccordance with section 247 of the Code of
Criminal Procedure. Counsel for thedefence may not be removed fromquestioning under any circumstances, noteven for reasons of an endangerment to thewitness.
It is also permissible for the witness tobe questioned by the appointed judge using
video technology in accordance with section
247 a. This video recording may be usedlater during the main trial.7
D. Section 247 of the Code of
Criminal Procedure
In accordance with this provision, thecourt can order the accused to be removed
from the courtroom during questioning if
the fear exists that a co-accused or awitness will not tell the truth if questioned
in the presence of the accused. Thepresiding judge of the court must informthe accused of the main content of what
was testified in his/her absence once he/7

Kleinknecht/Meyer-Goßner § 223, 20.

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
she has returned.
It should be pointed out in this context
that the court may also hold theproceedings in camera in accordance withsection 172 of the Courts Constitution Act(Gerichtsverfassungsgesetz) if there is fearof a danger to state security or to publicorder or to the life, limb or freedom of awitness or of another person.
The court is under a duty to safeguard
witnesses. The witness must be protectedagainst a danger to life or limb to which
he/she may be subjected as a result ofparticipating in the court proceedings8.
E. Section 96 of the Code of
Criminal Procedure.
In accordance with section 96, the court
may not require an authority to submit files
or information if the highest service
authority states that the disclosure of thecontent of the files would bedisadvantageous to the state. In similar
application of this provision, it is also
possible to refuse to provide to the court
information on the name and address of
witnesses who are being kept secret byauthorities. Thus, a witness who cannot
be otherwise protected, for instancebecause of an unusual danger, can bebarred from the main trial by the police
and the public prosecution office inapplication of section 96 of the Code of
Criminal Procedure. This means that his/
her identity and address are kept secretby the criminal prosecution authorities sothat he/she cannot be summoned to themain trial - instead, the individuals (police,public prosecutor, judge) who havequestioned this witness in the investigation
proceedings are questioned as hearsay
witnesses. Furthermore, in the event ofsuch a bar, the reports of the questioningof the witness may be read out at the main
8

BVerfGE 57 , 250 , 284.

trial (section 251 of the Code of CriminalProcedure). Witness protection by meansof this provision is most often applicablein the case of police officers, and undercoverinvestigators in particular.
Furthermore, the court must examine at
all times and on its own responsibility
whether it should dispense withquestioning a witness not barred inaccordance with section 96 of the Code of
Criminal Procedure because of a particularrisk to this witness, for instance becauseof a danger to life or limb9.
F. Sections 110 b and 110 d
In particular the identity of undercoverinvestigators who are working under anassumed name, i.e. a new cover, may be
kept secret even after their deployment hascome to an end. Only the publicprosecution office and the judge responsiblefor deciding on deployment may demand
the real identity to be revealed to them.
Otherwise, it is permissible to keep theidentity secret in criminal proceedings, inaccordance with the abovementioned
section 96 of the Code of Criminal
Procedure, in particular when there isreason to fear that disclosing the realidentity might place at risk the life, limb
or freedom of the undercover investigator,
or of another person, or reduce thepossibility to deploy the undercoverinvestigator in the future. Decisions anddocuments relating to the deployment ofan undercover investigator are not inserted
into the criminal files, but are kept by thepublic prosecution office. These documents
are only to be included in the files if this ispossible without endangering the purposeof the investigation or public security, andwithout placing at risk the life or limb of aperson, or the possibility to deploy theundercover investigator again.

9BGHSt 39 , 141 ; BGH NStZ 1984 , 31.

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G. Witness Protection Act(Zeugenschutzgesetz)10 sections
58 a, 168 e, 247 a and 255 a
In accordance with these provisions,witnesses may be questioned by a judge
separately from the other persons
concerned by the proceedings as early asin the investigation proceedings. In themain trial, witnesses do not always haveto appear in the courtroom for questioning.
In both cases, the testimony of the witness
may be transmitted simultaneously via apermanent video connection and recorded
on a picture and sound carrier if thestatutory preconditions are met. It is also
possible to record questioning by the policeand public prosecutors.
The recording of questioning and its
subsequent use as a substitute forquestioning allows, in particular, witnesses
to organized crime who are in serious
danger to be released from appearing at
the main trial and to submit their
testimony to the main trial using the video
questioning procedure. In detail:
(i)

(ii)

10 BGBl.

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In accordance with section 58 a of
the Code of Criminal Procedure,
any witness questioning may berecorded at any stage of theproceedings. It must be recorded
if there is reason to fear that thewitnesses cannot be questioned in
the main trial and that therecording is required in order toascertain the truth.
Section 168 e of the Code of
Criminal Procedure stipulates thatthe judge is to carry out
questioning separately from theother persons involved in theproceedings, during theinvestigation proceedings, in theevent of a serious danger to the1998 I , 820 .

well-being of a witness whichcannot otherwise be averted.
Pictures and sound of thequestioning are to be transmitted
to the other persons involved in theproceedings simultaneously. The
judge remains contactable bytelephone or radio. It is thus
ensured that defence counsel inparticular is able to intervene in
the questioning at any time withinterjectory questions.
Questioning may be recorded inorder to avoid repeat questioning.
(iii) Under the same preconditions,section 247 a of the Code of
Criminal Procedure governs video
questioning of a witness who is ina different location to thecourtroom. The witness cantherefore be in an adjacent roomin the court building or in a safe
place at home or abroad, forinstance if it would be too
dangerous for him/her to appear incourt.
(iv) P l a y i n g t h e v i d e o w h i c hsubstitutes questioning isgoverned by section 255 a of theCode of Criminal Procedure. The
videotape may be played in all
instances in which it would bepermissible to read out a report ofthe questioning.
The following aspects are particularly
significant:(i)With video questioning, forinstance with optical transmissionof the questioning of the witness
during the main trial, where thewitness is not in the courtroom but
in a secret location, no opticalbarrier is permissible, such as
distortion of the monitor picture ora bar over the face of the witness11.
If video questioning of the witness
where face of the witness remains

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
recognisable does not sufficiently
reduce or remedy the risk, thewitness must be barred altogether
in accordance with section 96 of theCode of Criminal Procedure.
(ii) Several protective measures may
be linked: It is for instanceconceivable to apply for video
questioning of the witness in thecourtroom, to hold the proceedings
in camera during questioning andto permit the witness to refuse togive personal details in accordancewith section 68 subsection 3 of theCode of Criminal Procedure.
(iii) In its decision as to which witness
protection measure to implement,
the court has to take into accountseveral criteria and to balance
their significance in accordancewith the facts of the individual
case, namely:(a) the duty to effectively detect thecriminal offence in a manner inline with the principles of justice,(b) the respect for the interests of
the accused to have theopportunity to defend him/
herself effectively, which is also
necessary under the rule of law,in particular to be able to askwitnesses comprehensive
questions,(c) the duty to protect the witness,where necessary, such as becauseof a serious personal danger orbecause of state interests whichtake priority.
Therefore, a more comprehensive
witness protection measure may
only be ordered if a milder
measure, which would prove lessdetrimental to detection or to
11 BGHSt 32 , 221 ; Renzikowski JZ 1999 , 605 ;Kleinknecht/ Meyer-Goßner § 68 , 18 - all with morereferences.

(iv)

defence, would not be sufficient.12
There is no questioning the factthat measures to protect witnesseswho are in danger may have aconsiderable impact in individual
cases on the potential for
ascertaining the truth and on theinterests of the defence. They must
therefore be applied with greatcaution. The evaluation of theevidence by the court, in particularin the case of indirect evidence,must take this danger into
account, and the principle“innocent until proved guilty” (Art.
6 II of the Convention forProtection of Human Rights andFundamental Freedoms) may takeon outstanding significance inindividual cases.13

III. REGULATIONS UNDERPOLICE LAW
The potential for protection provided bycriminal procedural law is insufficient.
Such protection is only effective during thecriminal proceedings, but not outside theproceedings or for the subsequent period.
However, a danger to witnesses may
remain, or even increase, once the criminal
proceedings have been concluded. During
the criminal proceedings, and afterwards,
the witness protection regulations ofpreventive law, i.e. of police law, also apply.
Such measures may be, for instance:(i)
Psychological care of the witnesses
and advice on conduct;(ii) The witness is provided with police
protection for a longer period, in
12 Renzikowsky JZ 1999 , 605.
13 Perhaps where the evidencee is doubtful and wherethe defence`s chances of examining the sources ofevidence and the evidence itself, eg by conducting
their own enquiries, have been restricted becauseof the need to protect witnesses.

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other words monitoring and escortby police officers working openly or
under cover;(iii) The witness is given a new identity,
in other words a new name andnew identity documents, a newhome, a new job, perhaps inanother state or abroad;(iv) He/she receives assistance andmoney for a temporary period tobuild a new life, in particular a newprofession.
The regulations contained in police law
supplement criminal procedure law during
the criminal proceedings; the police mustalso respect the control of the proceedings
to be exercised by the public prosecution
office and the court. Such police law
protection arrangements are important, forinstance, in the case of organized crime inthe shape of trafficking in human beingsand prostitution.
In Germany at present, studies are inprogress to determine whether a statute isnecessary to govern this and similar
measures in greater detail than waspreviously the case and to supplement
them. The police laws 14 have as yet
frequently only contained general clauses
on which measures can be based inindividual cases when the time comes.
IV. PRACTICE

the witness protection programme. As far
as is known, there have as yet not been any
serious problems, neither was theascertainment of the truth or the defenceof the accused seriously affected, nor were
the witness protection measuresinsufficient.
V. FINAL REMARKSEffective witness protection isindispensable to detect and suppress
organized crime, but must not lead toserious difficulties in ascertaining thetruth, or pose a detriment to the possibilityof defence of the accused to a degree which
is objectionable or indeed unjustifiable interms of the rule of law. On the other hand,
it is not a matter of ascertaining the truthat any price, and especially not at theexpense of endangering the life or limb ofa witness. In this difficult area, criminal
prosecution authorities, courts and thepreventive police, if possible in cooperation
with counsel for the defence, must findviable compromises which are justifiable
for all interests.
Witness protection is a task not solely
for the judiciary and the police, but forsociety as a whole, in particular for all statebodies, which need to accept and support
the witness protection measures
implemented by the judiciary and thepolice.

The police and judiciary have built up a“witness protection programme” which isapplied to endangered witnesses.
Accordingly, there are special witness
protection agencies with experience inwitness protection, as well as joint
guidelines15 by the Ministers of Justice andthe Interior which provide greater detailfor and govern the application of thestatutory provisions. In Germany, roughly
650 witnesses per year are provided for by

In practice, effective witness protection
requires from all involved a high degree ofsensitivity, mutual consideration andunderstanding for the interests of the stateand of all concerned, as well as courage and,in particular, trust in the state measureson the part of witnesses, as well as
imagination and discernment in selecting
the right measures; money should not playa major role here!

14 See §§ 6 , 26 BKAG.

15 Griesbaum NStZ 1988 , 433.

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116TH INTERNATIONAL TRAINING COURSE
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The statutory provisions in Germany
may be in need of improvement, but they
are currently sufficient if properly applied
to meet all the interests which need to betaken into account.

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