SECURING PROTECTION AND COOPERATION OF WITNESSESAND WHISTLE-BLOWERS
An Overview of the Law as it stands in Germany
Anne Katharina Zimmermann＊

I. INTRODUCTION
A. The Significance of Witness Protection in General
German criminal procedure law obliges the criminal prosecution authorities to prosecute all suspects
provided there are “sufﬁcient factual indications” of a criminal offence which may be prosecuted (section 152
subs. 2 of the Code of Criminal Procedure [StPO]1). This so-called principle of mandatory prosecution entails
an obligation to prosecute each suspect and, if the prerequisites for this apply, an obligation to prefer charges.
The principle of mandatory prosecution however encounters restrictions when it comes to serious and themost serious criminal offences, in particular from the field of organised crime, where the conspirative
structures are difﬁcult to penetrate with the existing investigation methods.
It is frequently not possible to penetrate the largely sealed off networks of groups of offenders who
associate in gangs using investigation measures from the outside and to obtain the information particularly
required to solve serious criminal offences. The criminal prosecution authorities hence particularly depend on
information from individuals from the criminal world who can provide the necessary information on
structures and on those running the operation from behind the scenes. One way of making the latter willing totestify is by “rewarding”, in one form or another, information which incriminates others and leads to theirconviction.
Another means of obtaining witnesses who are willing to testify, in particular in ﬁelds of crime inwhich factual information cannot be obtained or is difficult to obtain because of the particular level ofprofessionalism of the offenders, is to structure witness protection so well that such witnesses lose their fearof the offenders and remain willing to testify during the entire proceedings.
B. Definition of “Organised Crime”
Because of the diverse manifestations of organised crime, it is rather difficult to find a conclusive
deﬁnition. The German Federal Parliament established the following deﬁnition2 in 1992 when adopting the“Act on Suppression of Illegal Drug Trafﬁcking and other Manifestations of Organised Crime” (Gesetz zur
Bekämpfung des illegalen Rauschgifthandels und anderer Erscheinungsformen der Organisierten
Kriminalität – OrgKG)3:“Organised crime is understood to mean planned commission by several parties of criminal offences(which are of considerable signiﬁcance individually or as a whole), determined by the pursuit of proﬁt and/or
power, working together for a prolonged or indeﬁnite period of time, dividing tasks, using commercial or
business-like structures or use of violence or other means suitable for intimidation, or attempting to exert aninﬂuence on politics, the media, public administration, judicial authorities or the economy.”＊

Public Prosecutor, Legal Desk Ofﬁcer, Division RB2 – Criminal Procedure (Court Proceedings), Directorate-General for the Judicial
System, Federal Ministry of Justice, Germany.
1 German Code of Criminal Procedure (Strafprozessordnung), Federal Law Gazette 1987 part I, p.1319.
2 Federal Parliament printed paper 12/989; this is at the same time the practical deﬁnition which is binding on the public prosecutionofﬁces, cf. Guidelines for Criminal and Administrative Fines Proceedings (RiStBV) Annex E No. 2.
3 Federal Law Gazette, 1992 Part I, p.1302.

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The term “organised crime” however goes further in the view of the European Union and the United
Nations; accordingly, at least six of the following eleven characteristics must apply4:
・involvement of more than two people,
・for a prolonged or indeﬁnite period of time,・suspected of involvement in serious crimes,
・determined by the pursuit of proﬁt and/or power,・separate roles for each member,・use of some form of discipline or control within the group,・active internationally,・use of violence or other means suitable for intimidation,
・use of commercial or business-like structures,・engagement in money laundering, and・inﬂuence on politics, the media, public administration, judicial authorities or the economy.
The scale of organised crime is made clear if one takes a look at its global annual turnover:
Approximate estimates put this ﬁgure at Euro 500 to 1,000 billion. For comparison: South Korea’s GDP wasapprox. Euro 640 billion in 2009; India’s was Euro 950 billion and Germany’s was approx. Euro 2,500
billion. This is therefore a phenomenon of considerable dimensions, not only in terms of criminal law, butalso in economic terms.

II. THE CURRENT SITUATION, ISSUES AND CHALLENGES IN GERMANYREGARDING WITNESS/WHISTLE-BLOWER PROTECTION AND
EFFORTS TO IMPROVE THE SITUATION
Witnesses in Germany are on principle obliged to appear before the public prosecution ofﬁce and incourt in response to a summons, to testify truthfully and to swear an oath on their testimony if requested to doso (unless the right to refuse testimony or to refuse to provide information applies in accordance with sections
52 et seqq. StPO). These are civil duties which are not established by the Code of Criminal Procedure, but are
imposed as a condition, and are now explicitly provided in section 48 subs. 1 StPO. The State has thepossibility to enforce this obligation through coercive procedural measures (section 51 StPO). On the basis of
this obligation which has been imposed by the law, a particular obligation is incumbent on the State to protect
the witness’ legal interests, above all of life, limb and certain assets, if these are placed at risk as a result of
the testimony.
It is important to make clear that there is a difference between witness protection (in its classicalsense) and witness support and assistance measures, although there might be measures which serve both
purposes. In Germany there exist a wide range of services to (victims-) witnesses regarding their assistance,
e.g. information rights, psychological assistance or assistance in obtaining compensation (section 406h StPO).
In the following the focus will be on witness protection measures only.
A. The Legal Basis of Witness Protection
The legislature has continually refined witness protection in the past two decades. The “Act on
Suppression of Illegal Drug Trafﬁcking and other Manifestations of Organised Crime”5 already entailed major
improvements in this ﬁeld. For instance, the possibility was created for the ﬁrst time to limit statements onplace of residence and identity and personal particulars when examining witnesses, depending on the degreeof endangerment, or to do without them altogether (section 68 StPO).

4 Art. 2 of the United Nations Convention Against Transnational Organized Crime; Annual European Union Organised Crime Situation
Report (6204/1/97 ENFOPOL 35 REV 2) GD H II.
5 cf. footnote 4.

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With the Act on the Federal Criminal Police Office (Bundeskriminalamtgesetz) 6, the legislature
introduced in 1997 a special empowerment provision of the Federal Criminal Police Office for witness
protection at national level.
The Witness Protection Act (Zeugenschutzgesetz) 7, which came into force on 1 December 1998,
provided with sections 58a, 168e, 247a and 255a StPO a statutory basis for the deployment of video
technology in examinations, as well as its subsequent use in the main hearing.
With the Act to Harmonise Witness Protection (Zeugenschutzharmonisierungsgesetz – ZSHG)8, whichcame into force on 31 December 2001, the legislature ﬁnally created a clear statutory basis for measures of
witness protection.
The culmination of legislative developments in witness protection for the time being is formed by theSecond Victims’ Rights Reform Act (2. Opferrechtsreformgesetz – 2. ORRG)9, which came into force on 1
October 2009, which in particular enhanced the rights of (victim) witnesses.
1. The Witness-Protection Provisions of the Code of Criminal ProcedureSigniﬁcance attaches in witness protection in criminal procedure ﬁrst and foremost to the possibility
not to have to state certain personal and address data, and moreover to the deployment of video technology.
(i)

The Protection of Address Data
Growing signiﬁcance attaches to the protection of witnesses’ privacy in criminal proceedings, giventhat many witness are afraid of giving their personal particulars when being examined. A witness isfundamentally obliged to state his/her ﬁrst and family name, birth name, age, position or trade and place ofresidence when being examined (section 68 subs. 1 StPO). The purpose of the provision is to avoid mistaken
identity; it is however also to create a reliable basis for evaluating credibility and to make it possible for thoseconcerned to obtain information. The obligation is then incumbent on the State to protect witnesses from theirdata becoming known beyond the degree that is necessary in criminal proceedings. It must however always
strike a balance between the necessary protection of witnesses’ rights of personality and the purposes of thecriminal proceedings, in particular taking account of the right of the accused to a fair trial10, of the degree ofendangerment of the witnesses and where appropriate of the nature of the data which are to be protected.
This is ensured in Germany in many instances by a graduated system of possibilities for conﬁdentiality
being provided for, depending on the degree of endangerment, which applies both to witness examination andthe bill of indictment, and to the documentation in the files. The Second Victims’ Rights Reform Act hasretained this graduated system, has further improved the coordination of the individual protection
mechanisms, and has also appropriately expanded them with regard to witnesses’ rights.
(a) Statement of the Witness’ Residential Address on Examination
Even before the Second Victims’ Rights Reform Act came into force, there were exceptions to theprinciple that certain information is to be provided (section 68 StPO). For instance, witnesses could bepermitted on examination in accordance with section 68 subs. 2 sentence 1 StPO to state their businessaddress or place of work or another address at which documents can be served, instead of their place ofresidence, if there is reason to fear that the witness or another person might be endangered by the witness
stating his/her place of residence. Such an endangerment may be feared for instance if an attack on thewitness or a third party has previously taken place or has been threatened, or if the endangerment emerges
Act on the Federal Criminal Police Ofﬁce and on Cooperation between the Federation and the Länder in Criminal Police Matters(Gesetz über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen
Angelegenheiten), Federal Law Gazette 1997 part I, p.1650.
7 Act on the Protection of Witnesses on Examination in Criminal Proceedings and to Improve Victim Protection (Gesetz zum Schutze
von Zeugen bei Vernehmungen im Strafverfahren und zur Verbesserung des Opferschutzes), Federal Law Gazette 1998 part I, p.820
8 Act to Harmonise the Protection of Endangered Witnesses (Gesetz zur Harmonisierung des Schutzes gefährdeter Zeugen), Federal
Law Gazette 2001 part I, p.3510.
9 Federal Law Gazette 2009 part I, p.2280.
10 Codiﬁed in Article 6 the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 in theversion of 17 May 2002 (Federal Law Gazette II 1054).
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because of criminalistic indications, criminological experience or experience of life11.
This reduced statement of personal particulars in accordance with section 68 subs. 2 StPO was also
reﬂected in the investigation ﬁles, given that the provision applies not only to examination by a judge, but via
section 161a subs. 1 sentence 2 StPO also to examination by a public prosecutor.
In accordance with section 68 subs. 3 sentence 1 StPO, it was also possible for witnesses to bepermitted not to state personal particulars on examination if there was reason to fear that revealing the identity
or the place of residence or whereabouts of the witness would endanger the life, limb or liberty of the witness
or of another person. Documents establishing the witness’ identity are kept at the public prosecution ofﬁce
and are only included in the files when the danger has ceased (section 68 subs. 3 sentence 3 and subs. 4
StPO).
Since implementation of the Second Victims’ Rights Reform Act there is now a comprehensive list in
section 163 StPO to clarify that the provision contained in section 68 StPO is already to be adhered to by thepolice in the investigation proceedings.
Also with the aim in mind of witness protection, the right of the witness not to have to state their placeof residence in certain cases was additionally expanded to the required degree (section 68 subs. 2 and 3
StPO). This possibility now also exist if there is justiﬁed reason to fear that an unfair inﬂuence will be exerted
on the witness. Moreover, if there is a corresponding endangerment, the witness’ information regarding his/
her identity or place of residence may not be revealed in the file to the person potentially posing a risk,
including after conclusion of their examination (section 68 subs. 5 StPO). The measures described whichwere carried out in the protection of address data however relate not only to investigation proceedings, butalso to court proceedings.
(b) Statement of the Witness’ Residential Address in the Bill of Indictment
In the event of an endangerment (in accordance with section 68 subs. 1 sentence 1 and subs. 2
sentence 1 StPO), it was sufﬁcient to state in the bill of indictment the witness’ address at which documents
can be served (section 200 subs. 1 sentence 3 StPO). Corresponding to the measures that have been described,
in order to better consider all witnesses’ rights of personality (not only those of endangered witnesses), it has
now been clariﬁed by the Second Victims’ Rights Reform Act that the bill of indictment does not have tocontain a witness’ complete address (section 200 subs. 1 sentence 3 StPO) and in special cases even only his/her name (section 200 subs. 1 sentence 4 StPO).
Because it was previous practice in Germany to state (non-endangered) witnesses’ full address in thebill of indictment when they were named, this often led to the undesirable situation that the accused washence automatically aware of the addresses of all witnesses in each set of proceedings since the bill of
indictment is to be communicated to the indicted accused in accordance with section 201 StPO. It is however
not necessary in the vast majority of cases for the indicted accused to know the witnesses’ residential address.
Where this might nonetheless be necessary in individual cases in the interest of checking credibility, he/she
can be informed of the address where appropriate through inspecting the ﬁles.
Finally, when naming witnesses, their identity, place of residence or whereabouts in accordance withsection 68 subs. 3 StPO is not to be disclosed, only this fact is to be indicated in the bill of indictment (section
200 subs. 1 sentence 5 StPO).
(ii) Protection by means of the Provisions on Video Examination
Not only the abovementioned data protection provisions, but also provisions on the deployment ofvideo technology, may contribute towards effective witness protection in criminal proceedings. Firstly, thepossibility exists to examine witnesses separately, with simultaneous audio-visual transmission for otherparties to the proceedings (sections 168e and 247a StPO), whilst it is permissible to record witness
11. Meyer-Goßner, StPO, 53rd edition, 2010, section 68, margin number 12.

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examinations on an audio-visual medium – video recording – for the purpose of their subsequent use in themain hearing (sections 58a and 255a StPO). The provisions are not limited to specific fields of crime orcertain groups of witnesses.
(a) Simultaneous Audio-Visual Transmission
Section 168e StPO provides for the investigation proceedings that if there is an imminent risk ofserious detriment to the well-being of the witness, he/she may be examined by the judge such that the judge
carries out the examination separately from the other persons entitled to be present (in particular the accusedand his/her defence counsel). The examination is transmitted to them simultaneously by means of an audiovisual transmission. Additionally, this video examination by the judge may be recorded and used later in themain hearing, so that the witness is spared a confrontation with the indicted accused (section 168e sentence 4
StPO).
There is however always a requirement of a concrete risk to the well-being of the witness, the cause ofwhich must particularly lie in an examination in the presence of the persons entitled to be present.
For the main hearing, section 247a StPO provides for video examination of the witness such that thepresiding judge and the other parties to the proceedings do not leave the courtroom, and the witness is in
another place outside the courtroom, the examination being transmitted to the courtroom using a direct audiovisual link. The examination may take place in a separate room in the court building or in another place athome or abroad where the preconditions for audio-visual transmission are guaranteed. This is possible, ﬁrstly– as in section 168e StPO – if there is an imminent risk of serious detriment to the well-being of the witness.
It may however also be carried out if the personal appearance of the witness in the main hearing is opposedby a particular obstacle.
The testimony may also be recorded in the case of a video examination in the main hearing. In fact, it
should be recorded if there is a danger that the witness cannot be examined during a future main hearing (forinstance in an appeal proceeding) and if the recording is required in order to establish the truth. Whether thisis the case is to be decided by the court at its duty-bound discretion, albeit it follows from the manifestation asa directory provision that, should the statutory prerequisites apply, it is to be ordered as a rule.
(b) Video Recording
The recording of a witness examination on audio-visual media in the investigation proceedings isregulated by law in the shape of section 58a StPO. This recording may be played in the main hearing subject
to certain preconditions (cf. section 255a StPO in conjunction with sections 251 et seqq. StPO) – in particularwith the consent of the indicted accused and of his/her defence counsel, or if the witness cannot be examinedin the foreseeable future. A recording should be made if the examined witness is less than 18 years of age12 orif there is a fear that the witness cannot be examined during the main hearing and if the recording is requiredin order to establish the truth, section 58a subs. 1 No. 2 StPO; section 247a StPO.
(c) Possible Detriment to the Rights of the Accused
The implementation of video examination in the main hearing in accordance with section 247 StPO is
at the duty-bound discretion of the court. When exercising its discretion, the court must consider that theexamination of the witness in person in the courtroom (section 250 sentence 1 StPO) was regarded by thelegislature as being the standard case, and hence video examination, as an exception to this principle, iscontingent on preconditions subject to a narrow interpretation. Only if these prerequisites are met is there
latitude for a discretionary decision. A proper balance is to be struck here between the justiﬁed interest of the

12 This age limit was increased from 16 to 18 by the Second Victims’ Rights Reform Act, so that there is now greater latitude to spare
the witness an encounter with the accused by means of playing the recording. This new age limit also corresponds to the age limit ofmany international agreements on the protection of children and juveniles.

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witness (witness protection) on the one hand and the rights of the indicted accused, which also haveconstitutional status, to a fair trial on the other hand. In particular, the inalienable rights of the indictedaccused, in addition to the presumption of innocence, also include his/her right to a legal hearing and his/herright to ask questions. Furthermore, he/she also has a right to accelerated proceedings and at the same timecomprehensive clariﬁcation of the criminal offence. The indicted accused must have an effective possibility
to question a witness and to question his/her credibility and reliability. All this is at least made more difﬁcult
by video examination, if not actually prevented.
The principle of examination in person (section 250 StPO) is largely granted by simultaneoustransmission (section 247 sentence 3 StPO), since only the physical presence of the witness in the courtroom
is done without13. Having said that, the duty to investigate ex officio emerging from section 244 subs. 2
StPO14 is affected if direct communication between the parties to the proceedings, in particular between the
court and the witness, is not possible, but is ﬁltered through a technical medium. This may cause a major
detriment to the formation of judicial conviction. Also, spontaneous questions on the part of both the court
and of the indicted accused are made more difficult. Finally, the motivation to testify truthfully may be
reduced if there is no direct confrontation with the court and the parties to the proceedings.
(iii) The Undertaking of Confidentiality
In order to make it possible to verify the statement of a witness by consulting other evidence, the court
must on principle know the identity of the witness. Statements regarding the identity may therefore not berefused as a rule. A witness may however exceptionally be assured by the criminal prosecution authorities(public prosecution office or police) that his/her identity will be kept secret if there is a particularendangerment to the witness. This can be considered namely with serious crime, in particular organised
crime. The statement of the witness is then presented in the main hearing by the police ofﬁcer who examined
the witness. This approach is however very seldom taken in practice, especially since it is not binding for the
court proceedings and does not eliminate the court’s duty to ascertain the truth. Detailed guidelines for thisprocedure are provided in Annex D to the Guidelines for Criminal and Administrative Fines Proceedings15.
2. Witness Protection in accordance with the Act to Harmonise Witness Protection16
It is particularly important in proceedings related to criminal offences of organised crime to win overwitnesses who are willing to testify and to maintain their willingness to testify over the entire proceedings.
Criminal prosecution authorities and courts frequently and particularly rely here on witnesses who come fromamong the offenders and can provide valuable information particularly because of their high degree offamiliarisation with the planning of the offence and its commission. The willingness of a witness to testify iscontingent on guaranteeing comprehensive protection. This is not only a matter of protecting the witness him/
herself, but also his/her relatives and other persons close to him/her.
With the adoption of the Act to Harmonise Witness Protection in 2001, the legislature created astatutory basis for speciﬁc witness protection measures, and hence for greater legal security in this ﬁeld. The
legislature opted not to limit the area of application to the ﬁelds of crime “organised crime” and “terrorism”17.
Having said that, section 2 subs. 2 sentence 2 of the Act to Harmonise Witness Protection contains a special
proportionality clause according to which witness protection measures in accordance with the Act toHarmonise Witness Protection are ultimately only considered in cases of serious crime.
(i)

Scope and Competence in Application of the Act to Harmonise Witness Protection
Section 1 subs. 1 of the Act to Harmonise Witness Protection lists the prerequisites under which

13 cf. on this Fischer in JZ (JuristenZeitung) 1998, p.820.
14 Meyer-Goßner, StPO, 53rd edition, 2010, section 244, margin number 12.
15 Guidelines for Criminal and Administrative Fines Proceedings, Annex D I. (Use of informants and deployment of cooperating
witnesses in criminal prosecution).
16 cf. footnote 9.
17 The Draft of the Federal Council still provided for such a restriction. (Federal Council printed paper [BR-Dr.] 458/98).

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witness protection may be provided in criminal proceedings. The witness to be protected must be in danger
speciﬁcally because of his/her willingness to testify. An endangerment which is only abstract is not sufﬁcient.
The analysis of endangerment, which is carried out by the competent witness protection units, must reveal
factual indications that damage is likely to occur to the legal interests of the witness.
Admission to witness protection is contingent on it being impossible to research the facts, or to
identify the accused, or on this being made much more difﬁcult, without the statement of the person who is tobe protected. Less incisive measures therefore take priority.
The witness must have consented to the protection measures; he/she may therefore not be included ina witness protection programme against his/her will.
A person must be suited for the implementation of witness protection measures. The person to beprotected may for instance be unsuited if he/she makes false statements, fails to meet agreements or is unable
to do so, is not willing to maintain conﬁdentiality or commits criminal offences.
In accordance with section 1 subs. 2 of the Act to Harmonise Witness Protection, the Act also applies
to relatives of the witness or accused or to other persons close to him/her, given that dangers may also
threaten this group of individuals. Even if a witness or accused person were to be willing to testify,
suppressing their own endangerment, this is frequently questioned when the endangerment threatens persons
close to him/her.
In accordance with section 1 subs. 4 sentence 1 of the Act to Harmonise Witness Protection, witness
protection measures may be terminated if one of the preconditions mentioned above did not apply (from theoutset) or has subsequently ceased to apply. The termination of criminal proceedings by itself does not
however entail rescission of the witness protection measures if the endangerment continues to exist (section 1
subs. 4 sentence 1 of the Act to Harmonise Witness Protection)18.
(ii) The Witness Protection Unit, Section 2 of the Act to Harmonise Witness Protection
Special witness protection units have been set up both at the Federal Criminal Police Ofﬁce and in all
Federal Länder. These special units are as a rule separated from the investigative units, which is considerednecessary for reasons of police tactics.
Inclusion in a witness protection programme is as a rule suggested by the individual criminal
prosecution authority/public prosecution ofﬁce dealing with the investigation proceedings; only then does the
special witness protection unit start work, which then takes a formal decision on inclusion in the witness
protection programme.
In accordance with section 2 subs. 2 of the Act to Harmonise Witness Protection, there is nofundamental legal right to the commencement of protection measures by the witness protection unit. Rather,
the decision on the commencement, nature, scope and termination of such measures is in any case contingent
on an examination of proportionality in which in particular the gravity of the offence, the degree of theendangerment, the rights of the accused against whom the testimony is to be given, and the impact of witness
protection, are to be taken into account.
Accordingly, all witness protection measures taken, such as the issuance of cover documents, ﬁnancial
benefits or the termination of witness protection must be comprehensible at any time, thus obliging thewitness protection units to provide seamless documentation. This information, which is subject to
conﬁdentiality, is kept in ﬁles in the witness protection units and does not constitute a part of the investigationﬁle. The ﬁles are however to be made available to the public prosecution ofﬁce for criminal proceedings onrequest. Officials of the public prosecution office and witness protection units are also obliged to provide
information on witness protection in criminal proceedings in accordance with general principles. In

18 If measures in accordance with the Act to Harmonise Witness Protection can no longer be considered because the preconditions do
not apply (or no longer apply), but the endangerment continues to apply to major legal interests of the individual in question, thecompetent police authorities must ensure their protection by taking measures under police law. In this case, the legal basis changes
under which protection is granted, and possibly also the methods and the police ofﬁcers in persona, but protection continues to beguaranteed.

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accordance with section 54 StPO, they however require consent to testimony, which is to be granted, but may
however also be restricted where appropriate, taking account of the purposes of witness protection.
The judicial control of the proceedings exercised by the public prosecution ofﬁce remains unaffected(section 2 subs. 4 of the Act to Harmonise Witness Protection). Until the ﬁnal conclusion of a set of criminal
proceedings, all important decisions are to be taken subject to agreement between the public prosecutionofﬁce and the witness protection unit. Also, once the proceedings have been concluded, the public prosecution
office is to be provided with information because it may have information, for instance from follow-up
proceedings, which is signiﬁcant to the decision on the termination of witness protection.
(iii) Confidentiality, Obligation in accordance with Section 3 and Section 10 of the Act to Harmonise Witness
Protection
The solution of the tension between properly safeguarding the necessary conﬁdentiality of witness
protection measures, on the one hand, and the right to a fair trial on the other, is served by sections 3 and 10of the Act to Harmonise Witness Protection. Here, the safeguarding of effective witness protection iscontingent inter alia on the confidentiality of the witness protection measures. Office-holders are alreadyobliged to observe conﬁdentiality in accordance with provisions of service law; unauthorised disclosure of
information is subject to criminal punishment in accordance with section 353b subs. 1 No. 1 of the Criminal
Code (Strafgesetzbuch – StGB)19 – up to five years’ imprisonment or a fine. In the main, the provision ofsection 3 of the Act to Harmonise Witness Protection hence serves to safeguard confidentiality by otherpersons (ﬁrstly, the persons to be protected themselves, and secondly those private individuals who can beclaimed against for measures in accordance with the Act to Harmonise Witness Protection), who inaccordance with the Obligations Act (Verpflichtungsgesetz)20 can be “formally obliged to carry out their
obligations in a conscientious manner”. In this respect, these individuals are equated to ofﬁce-holders, so thatthey are threatened in the event of violating this obligation with criminal prosecution in accordance withsection 353b subs. 1 No. 2 StGB. The person to be protected will need to be placed under an obligation as arule since the willingness to be placed under an obligation (with the consequences of criminal prosecution in
the event of a violation), is a major criterion for the suitability of a person who is to be protected.
Section 10 of the Act to Harmonise Witness Protection, by contrast, regulates obligations to provide
information in formal judicial proceedings, that is before courts and committees of enquiry. It must be ensured
in these proceedings too that the personal particulars under which a person who is to be protected lives, aswell as his/her current whereabouts, are not disclosed and hence their endangerment increased. Section 10
subs. 3 of the Act to Harmonise Witness Protection clarifies for criminal proceedings that the provisions
contained in sections 68 and 110b subs. 3 StPO remain, that is that the accused and the defence do not have toaccept any further restrictions. For all other court proceedings, a person enjoying protection, in derogationfrom the provisions of the respective rules of procedure, is entitled to make a statement on the person only
regarding a former identity, and may refuse to give information which allows conclusions to be drawn as tothe current personal particulars and place of residence and whereabouts.
(iv) Utilisation of Personal Data, Section 4 of the Act to Harmonise Witness Protection
Section 4 subs. 1 of the Act to Harmonise Witness Protection determines as one of the central
provisions of the Act that the witness protection units may refuse to provide any information to public andnon-public agencies apart from the public prosecution ofﬁces regarding personal data of the person who is tobe protected, where this is necessary for his/her protection.
Section 4 subs. 2 of the Act to Harmonise Witness Protection contains a blanket clause granting public

19 Criminal Code in the version of the promulgation of 13 November 1998 (Federal Law Gazette. I p.3322), most recently amended by
Article 3 of the Act of 2 October 2009 (Federal Law Gazette. I p.3214).
20 section 2 subs. 2 No. 2 of the Act on the formal Obligation of Persons who are not Tenured Civil Servants (Gesetz über die förmliche
Verpflichtung nicht beamteter Personen) of 2 March 1974 (Federal Law Gazette Part I, 469, 547).

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agencies the power, on request by the witness protection units, to block data or not to forward them. The
requested authorities must comply with the request of the witness protection units unless there are prevailingthird-party interests which are eligible for protection or such interests of the general public. The generalclause applies to public ﬁles and registers, such as the registration, identity card, passport, driving licence andvehicle registers.
The further blanket clause contained in section 4 subs. 3 of the Act to Harmonise Witness Protection
obliges agencies outside the public domain to comply with the request of the witness protection units to block
the transmission of data. This provision is necessary because considerable amounts of data processing are also
carried out in the private domain, for instance in banks, insurance companies and utilities. Furthermore,
public and non-public agencies must ensure for the area of their internal data processing that witness
protection is not impaired (section 4 subs. 4 of the Act to Harmonise Witness Protection). The reference tosections 161 and 161a StPO contained in section 4 subs. 5 of the Act to Harmonise Witness Protection makes
it clear that these restrictions do not apply in relations to the public prosecution office exercising judicial
control of the proceedings. The recognition and prevention of spying attempts by third parties is served by theprovision that public and non-public agencies must notify each request to release blocked data to the witness
protection unit (section 4 subs. 6 of the Act to Harmonise Witness Protection).
(v) Temporary Cover, Section 5 of the Act to Harmonise Witness Protection
Section 5 of the Act to Harmonise Witness Protection regulates the structure of temporary covers.
Persons who are to be protected must be equipped with documents by means of which a ﬁctitious life can betraced, which is for instance necessary to take up work or to register children for school or to change schools.
As a blanket clause, section 5 subs. 1 of the Act to Harmonise Witness Protection clariﬁes that public agencies
are empowered to produce and alter cover documents at the request of the witness protection units and toprocess the altered data. This refers for instance to identity cards, driving licences, wage tax cards orcertiﬁcates.
The blanket clause contained in section 5 subs. 2 of the Act to Harmonise Witness Protection obliges
non-public agencies to comply with the request of the witness protection units to issue cover documents. Thisis significant because identity cards, as well as documentation of entitlements and performance, are also
drawn up in the non-public sphere to document life events.
In accordance with section 5 subs. 3 of the Act to Harmonise Witness Protection, persons to beprotected may take part in legal transactions under their cover, for instance by renting apartments or holdingbank accounts.
(vi) Benefits from the Witness Protection Unit, Section 8 of the Act to Harmonise Witness Protection
With the provision on beneﬁts from the witness protection units paid to the persons to be protected,
section 8 of the Act to Harmonise Witness Protection touches on one of the most controversial topics in theﬁeld of witness protection, given that it relates to the tension between effective provision of protection for
endangered individuals on the one hand and the right of each accused person to put up defence and to a fairtrial on the other.
Section 8 subs. 1 of the Act to Harmonise Witness Protection makes it possible to provide temporary
economic support by the witness protection units unless in individual cases the persons to be protected canuse their own resources. On principle, these persons must continue to support themselves. They must haverecourse to their own savings where necessary.
The fundamental prohibition of economic advantage is one of the fundamental requirements of the
Act to Harmonise Witness Protection. Potential witnesses are not to be able to hope to enjoy material
advantages through inclusion in witness protection, such as a larger home or higher monthly payments. This
provision details the legal concept from section 136a StPO, in accordance with which inter alia the promise of― 28 ―

advantages not provided for by the law is prohibited, including for witness protection.
A strict standard is to be applied to the nature and scope of possible beneﬁts which is orientated in linewith the weighing up criteria of section 2 of the Act to Harmonise Witness Protection. Hence, the accusation
is prevented which would otherwise be possible that the testimony of the person who is to be protected was,so to speak, bought with material advantages.
Section 8 sentence 2 of the Act to Harmonise Witness Protection makes it clear that beneﬁts from thewitness protection units which a person to be protected has deceptively and unfairly obtained, such as byknowingly making untrue statements about the preconditions for witness protection, can be demanded back.
These prerequisites will not normally apply if the content of a statement is simply corrected.
3. Impairment of the Defence through Measures in accordance with the Act to Harmonise Witness
Protection?
The provisions of the Act to Harmonise Witness Protection offer good possibilities to achieve effective
protection of an endangered witness. Disadvantages may however be caused to the accused and the indictedaccused with regard to an effective defence as a result of measures provided for in the Act to Harmonise
Witness Protection. Since inclusion in a witness protection programme as a rule is proposed by the respective
criminal prosecution authority dealing with the investigation proceedings (section 2 subs. 2 sentence 1 of the
Act to Harmonise Witness Protection, see above), case constellations are conceivable in which the protectionof the witness is not primarily focussed on, but procedural tactical considerations of the criminal prosecution
authorities also at least play a role21. Instead of strengthening the ascertainment of the truth, witnesses who
are willing to testify may also be influenced in particular by the prospect of being included in a witness
protection programme and nicen up their testimony so as to make themselves more important for the criminal
prosecution authorities than they actually are. This may encourage false testimony. It is also possible for thewitness to be protected to portray the endangerment potential more dramatically than it is in reality, given that
inclusion in a witness protection programme is associated with measures which might be understood toconstitute not inconsiderable advantages22.
There is no empirical proof of these fears, and these would probably also be difﬁcult to establish, but
because of the comprehensible motivation of the witness they cannot however be fully ruled out. It is howeverﬁrst and foremost a matter for those who deal with inclusion in the witness protection programme to recognisesuch tendencies and nip them in the bud. The judge in the main hearing must however also be aware that he/she might need to pay particular attention to the motivation of the witness, and concomitantly to the value of
his/her testimony.
B. Witness Protection as an Obligation incumbent on Employers: Federal Constitutional Court’s“Whistleblower” Ruling
The “ whistleblower ”-problematic does not refer to witness protection in its classical sense as“whistleblowers” do not necessarily become witnesses in a criminal proceeding. In general they alert to thecompetent authorities important information on wrongful acts in private companies or even in the public
sector. This is more an aspect of civil-/labour-law. In the “Whistleblower” ruling of the German Federal
Constitutional Court it has been pointed out that in addition to the state’s obligation to protect witnesses, (civil
and public-law) employers also have an obligation in individual cases to protect a witness who has provided
information on irregularities within the company to the criminal prosecution authorities, in criminal
proceedings against civil law sanctions or other disadvantages with which they may be threatened during or
after the conclusion of criminal proceedings. This is not witness protection in the classical sense; nonetheless,this area is highly signiﬁcant since it repeatedly occurs in current political discussions in Germany.
21 More on this: Ulrich Eisenberg, Zeugenschutzprogramme und Wahrheitsermittlung im Strafprozess, in Festschrift für Gerhard Fezer,
p. 197 et seqq.
22 Such as creation of a cover (section 5 subs. 1-3 of the Act to Harmonise Witness Protection) and material beneﬁts (section 8 sentence
1 of the Act to Harmonise Witness Protection).

― 29 ―

The Federal Constitutional Court found in its “Whistleblower” ruling of 2 July 200123 that testimonyof an employee in the investigation proceedings against his/her employer did not necessarily entitle it toterminate employment. Particularly the obligation to testify was said to be a general civic duty. It was said not
to be compatible with this duty in a state based on the rule of law for those who complied with it to suffer
disadvantages under civil law. The Court found that this was the only way to satisfy the constitutional duty of
the State to guarantee a functioning administration of justice in the public interest.
The case-law of the labour courts which has been handed down since the “whistleblower” ruling has
not been able to prevent non-uniform and partly contradictory handling of this prohibition of discrimination
pronounced by the Federal Constitutional Court. The legislature has hence been planning for quite some timeto include a “whistleblower section” in the Civil Code (Bürgerliches Gesetzbuch) to eliminate the legal andfactual uncertainties in this ﬁeld24. However, so far without any results.

III. EFFECTIVE MEASURES TO ENCOURAGE COOPERATION OF
WITNESSES OF ORGANISED CRIME IN GERMANY WITH A FOCUS ON
THE “CROWN WITNESS” SYSTEM
Before the crown witness system in Germany is explained in more detail, it is important to know thatthese regulations do only apply to persons who themselves have committed a criminal offence and who aresubject to mitigation principles due to the fact that they are willing to cooperate with the judicial authorities.
A. The Crown Witness Arrangements in Germany prior to the Entry into Force of the Act Amending
the Criminal Code25
The ﬁgure of the crown witness was fundamentally alien to German criminal procedure law for a longtime. A crown witness arrangement was included in criminal law, including those criminal provisions which
are not contained in the Criminal Code, for the first time in 1981 with section 31 of the Narcotics Act(Betäubungsmittelgesetz)26. This provides that the court may mitigate the sentence, or can refrain from
imposing punishment, if the offender・has made a major contribution by voluntarily revealing his/her knowledge to discovering the offence
over and above his/her contribution to it, or・voluntarily reveals his/her knowledge to a unit in such good time that considerable criminal offences inaccordance with the Narcotics Act with regard to which he/she has become aware of the planning canstill be prevented.
Further “ crown witness arrangements ” for specific criminal offences are provided for by theapplicable law in the ﬁeld of organised crime (sections 129 subs. 6 and 261 subs. 9 StGB), as well as in theﬁeld of terrorism (section 129a subs. 7 StGB).
Controversial discussions have been going on in Germany for decades and are continuing on the
introduction of a crown witness arrangement covering all crimes 27. This is partly because crown witness
arrangements are in a certain state of tension with the principle of mandatory prosecution and the guilt
principle: A criminal offender may buy him/herself free of criminal prosecution by means of denunciation.
The punishment distances itself from its function of being a fair compensation for guilt28. Art. 3 of the Basic

23 Order of the Federal Constitutional Court of 2 July 2001, ref. 1 BvR 2049/00.
24 German Federal Parliament, Committee on Food, Agriculture and Consumer Protection: Proposal for the statutory establishment of
informant protection for employees in the Civil Code of 30 April 2008. (Committee printed paper 16(10)849 – This proposal did not
ﬁnd political favour.)25 Act Amending the Criminal Code – Assessment of Punishment with Assistance in Solving and Preventing Crimes (Gesetz zurÄnderung des StGB – Strafzumessung bei Aufklärungs- und Präventionshilfe), Federal Law Gazette. Part I 2009, 2288.
26 Act on Trafﬁcking in Narcotics (Gesetz über den Verkehr mit Betäubungsmitteln), of 28 July 1981 (Federal Law Gazette. I, 681).

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Law (Grundgesetz) (the principle of equality) is also affected given that those who are entangled in a criminal
environment can obtain advantages more easily than a person committing a single crime, who cannot
denounce anyone. What is more, the criminal prosecution authorities place themselves under suspicion ofnegotiating with crime.
German legal policy has also repeatedly tackled the question in recent years of the degree to which thestructure of crown witness arrangements should be improved or expanded in the law, particularly in view ofthe fact that the threat not only of organised crime, but in recent years especially also of terrorist attacks,
appeared to grow29.
The discussions in this respect touched on the same questions again and again: Should crown witness
arrangements be regulated for speciﬁc crimes in the individual elements of the offences themselves (as in theabovementioned sections 129 and 129a StGB), or should a multi-crime provision be introduced? Should theadvantages granted only be considered if the testimony of the crown witness relates to offences in which he/she was personally involved, or should they also apply if he/she can provide information regarding offences
which are unrelated to the offence of which he/she is being accused? And, ﬁnally, also the question of whether
one should adopt a US system of “corroboration”, according to which no conviction may be handed downsolely on the basis of the testimony of a crown witness.
B. The So-called “Big Crown Witness Arrangement” adopted as Law
With the “Act Amending the Criminal Code - Assessment of Punishment with Assistance in Solving
and Preventing Crimes”, which came into force on 1 September 200930, a multi-crime “big” crown witness
arrangement was opted for, whilst retaining the provisions contained in sections 31 of the Narcotics Act andsections 129 and 129a StGB. A provision was included in the Criminal Code31 with which all offenders ofparticularly serious criminal offences are to be covered if they make a major contribution by voluntarily
disclosing their knowledge towards solving or preventing criminal offences, including those in which they
were not personally involved (“multi-crime” application). It was particularly pointed out as a reason for thenecessity of such a broad crown witness arrangement that “there are considerable evidentiary problems whenit comes to crimes from the area of organised crime and terrorism” and that it was hence necessary to provide
adequate and suitable tools to offer an incentive to offenders who might be willing to cooperate in solving
crimes and to assist in their prevention32.
As to the crimes for which assistance in solving and preventing crimes is to be provided, the newprovision is linked to the lists of criminal offences contained in section 100a StPO. These are in particularcriminal offences which as a rule are committed in connection with organised crime.
The legal consequences of assistance in solving crimes within the meaning of section 46b StGB are
placed at the discretion of the courts: In accordance with section 49 subs. 1 StGB they can mitigate sentence– including life imprisonment – or refrain from imposing sentence if the offence is only threatened with timelimited imprisonment and the offender has not incurred a prison sentence of more than three years. The
discretion of the court in this term is guided by section 46b subsection 2 of the Criminal Code which statesthat the court shall have particular regard to the nature and scope of the disclosed facts and their relevance tothe discovery or prevention of the offence, the time of disclosure, the degree of support given to theprosecuting authorities by the offender and the gravity of the offence to which his disclosure relates, as wellas the relationship of the circumstances mentioned before to the gravity of the offence committed by and the27 The so-called Crown Witness Act, promulgated on 16 June 1989 (Federal Law Gazette. I 1989, 1059), on which – having been
expanded to include the prosecution of (other) organised crime – a sunset clause was ultimately imposed up to 31 December 1999,
and which was then no longer extended, was of little signiﬁcance in practice.
28 Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts) 45, 259.
29 On the development of the legislative procedure cf. König in Neue Juristische Wochenschrift (NJW) 2009, 2481.
30 cf. footnote 26.
31 Section 46b of the Criminal Code “Assistance in solving or preventing serious criminal offences”.
32 Federal Parliament printed paper 16/6268, p. 1 et seq.

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degree of guilt of the offender.
In order to avoid any misuse of the concessions made possible under section 46b of the Criminal
Code, a time limit is stipulated for the submission of information as a witness for the prosecution.
Mitigation of punishment or dispensing with punishment are excluded if the perpetrator discloses theinformation at his disposal after the decision has been issued to open the main proceedings against him(section 207 of the Code of Criminal Procedure). This cut off point for considering submissions by theperpetrator is designed to enable the courts to examine the statements of witnesses for the prosecution as totheir veracity before judgment is handed down. Should the perpetrator provide information relevant to theinvestigation during interlocutory proceedings (section 199 et seqq. of the Code of Criminal Procedure), thecourt may have these examined before the decision is taken to open the main proceedings, and send the ﬁlesto the public prosecution ofﬁce for further investigation if necessary.
However, even if the perpetrator contributes to discovery or prevention only during the course of themain proceedings (thus excluding the possibility of applying section 46b of the Criminal Code), there is thepossibility of honouring this during sentencing in accordance with section 46 subsection 2 of the Criminal
Code.
It is not yet possible to say with certainty whether the new Act fulfils its purpose; there are no
authoritative ﬁgures on this. The Coalition Agreement of the current government however provides in turn tostructure the crown witness arrangement in such a way that the possibility to mitigate punishment may only
be opened up if the offender’s disclosure is linked to with his/her own criminal offence33.

IV. WITNESS PROTECTION AT EU LEVEL
Witness protection is not only of national interest; this topic is also becoming more and more thesubject of debate in the cross-border domain. Considerations to regulate witness protection EU-wide havebeen in existence for several years. It was suggested back in 1997 in Recommendation 16 of the “Action
Programme on the Prevention and Fight against Organised Crime”34 to examine the needs of protection of
witnesses and persons who collaborate in the action of justice. The Council Declaration of 25 March 200435
on combating terrorism and the Hague Action Plan36 also refer to a proposal on the protection of witnesses
and collaborators.
The European Commission in particular has also been calling for a long time for the introduction of
obligatory minimum standards for witness protection at European level; to this end, it presented already in1996 a “Resolution on individuals who cooperate with the judicial process in the fight against organised
crime”37. Furthermore, a Commission Working Document on 13 November 2007 on the feasibility of EU
legislation in the area of protection of witnesses and collaborators with justice was presented38. This document
provides an overview of the state of legislation and the general procedure to be followed at national, European
and international levels; it furthermore contains an analysis of the problems, goals and possible political
options.
But not only the European Commission, also the Council of Europe has made big efforts when it
comes to witness protection. Especially the “Recommendation concerning intimidation of witnesses and theright of the defence”39 and the “Recommendation on the protection on witnesses and collaborators of

33 “Growth, Education, Unity": The coalition agreement between the CDU, CSU and FDP for the 17th legislative period, Nos. 4945 etseqq. (http://www.cdu.de/doc/pdfc/091215-koalitionsvertrag-2009-2013-englisch.pdf).
34 Ofﬁcial Journal of the European Union C 251 of 15 August 1997.
35 In English at: http://www.ena.lu/declaration_combating_terrorism_extract_concerning_establishment_position_coordinator_brussels_march_2004-020007089.html
36 Ofﬁcial Journal of the European Union C 65/120 of 17 March 2006 - COM(2005) 184 ﬁnal.
37 Ofﬁcial Journal C 010, 11/01/1997, p. 0001-0002.
38 Commission of the European Communities, Brussels, 13 November 2007 - COM(2007) 693 ﬁnal.

― 32 ―

justice”40 provide for speciﬁc guidance in the ﬁeld of witness protection.
Therefore, it has been shown in recent years that, on the one hand, there has been progress in the ﬁeldof EU-wide cooperation; for instance both the Council Framework Decision on combating terrorism41 and theCouncil Framework Decision on the standing of victims in criminal proceedings42 offer possibilities toalleviate punishment in exchange for information and protection rights of (victim) witnesses. Most EU
Member States also have a witness protection regulation either in a separate statute or in their Code of
Criminal Procedure43. These as a rule contain deﬁnitions of terms (protected witness, anonymous witness,
person collaborating with the judiciary), procedural (special precautions in the proceedings, alternative
procedures for testimony), as well as non-procedural measures (physical protection, change of place ofresidence, cover identity).
However, there are also differences: Some countries consider witness protection to be primarily amatter for the police, whilst others allot a primary role to the judiciary and the ministries. The countries also
differ widely in the manner of the measures with which witnesses’ collaboration is to be made easier. In somecases different legal traditions and contexts also have a role to play. These differences show that, all in all, aframework for binding minimum standards is not in place.
One can however gather from practitioners that the necessary protection can be provided in most casesby means of bilateral agreements which – where necessary – are concluded on an ad hoc basis, as well as
through an increased informal exchange of experience and information, as well as cooperation. Those
practitioners often give the opinion that there is no need for an EU-wide regulation on minimum standards inthis ﬁeld and that such a regulation would not have any added value.

V. STATISTICAL INFORMATION
A. On Witness Protection Cases
It is difficult to obtain reliable figures on witness protection measures and programmes in that the
responsible authorities are unwilling to reveal certain information because of the priority of the protection andconfidentiality of witness protection measures. This is to prevent amongst other things interested groups
obtaining a picture of the speciﬁc means and methods with which witness protection is provided by collating
information in a mosaic-like manner.
The Federal Criminal Police Ofﬁce has released the following ﬁgures from 2006 for publication:
・Numbers of cases:
witness protection cases 2006
330
carried over from 2005
266
new cases
64
completed cases
55
・Fields of crime:
organised crime262
national security crimes
10
other serious crime
58
・Protected witnesses: witnesses (total)
330
male
229
female101
nationality German
154
nationality not German
176
others involved
328

39
40
41
42
43

Council Recommendation No. R (97) 13 as of 10 September 1997.
Council Recommendation No. R (2005) 9 as of 20 April 2005.
Ofﬁcial Journal of the European Union L 164 of 22 June 2002, 3 Article 6.
Ofﬁcial Journal of the European Union L 82 of 22 March 2001, 1 Article 8.
A separate Witness Protection Act exists in 18 EU Member States; 9 EU Member States do not have such a law (these include
Denmark, Finland, France, Greece, Luxembourg, the Netherlands, Austria, Spain and Cyprus).

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For the above reasons, virtually no information is also available when it comes to the question of thecost and stafﬁng needs in the context of witness protection. According to unveriﬁable estimates, an average ofsix to eight witness protection ofﬁcers per witness protection unit in Germany appears to be sufﬁcient. Special
response units, mobile response units, or also investigation groups, are also deployed in some cases, each ofwhich is independent of the witness protection unit in terms of stafﬁng.
Taking a look at the budget plans of the individual Federal Länder is also no more informative since
the funds officially entered for the purposes of witness protection frequently do not reflect the actual
circumstances (for instance because financial resources used for witness protection are “hidden” in otheritems of the budget plan in order not to permit conclusions to be drawn here either).
B. On the Impact of the Crown Witness Arrangements in Germany
One can observe that the crown witness arrangement on terrorism, which was not extended beyond
1999, was applied with particular success in the cases of former RAF (Rote Armee Fraktion) terrorists and in
the exposure and prosecution of the PKK [Kurdistan Workers ’ Party]. There are also several sets ofproceedings in which the arrangement which was brought into the ﬁeld of organised crime made it possible tosolve cases.
In terrorist crime committed by foreigners, and when it comes to trials of members of the PKK in
particular, crown witness statements have made it possible to indict senior PKK cadres and made a major
contribution towards their conviction, in some instances sentencing them to long prison terms. The lion’sshare of these indictments could presumably never have been laid without the contribution towards detection
made by “crown witnesses”. The successes in investigation at that time made it possible not only to expose
the structures of the PKK; they are also likely to have made a major contribution towards the PKK’s decision
to cease violent terrorist activities in Germany. In terms of German terrorism, the crown witness arrangement
was applied to former RAF members who had gone into hiding in the GDR and who were taken into custody
after uniﬁcation. Their testimony made a major contribution towards solving crimes from the seventies. It
remains to be seen whether the “big crown witness arrangement”, which has now been adopted as law44, willlead to comparable successes in investigation.
In the criminal law on narcotics, the “crown witness arrangement”, which has been in existence since1982 (section 31 of the Narcotics Act), has been well received by practitioners. It was already applied in morethan 2,300 cases in the few years subsequent to its entry into force, namely from 1985 to 198745. According topractitioners, the regulation led to considerable successes in investigation, particularly in the ﬁght againstorganised narcotics-related crime.

VI. CONCLUSION
The constitutional system of the German Basic Law obliges the state agencies to also consider theinterests of witnesses in criminal proceedings. The legislature is in this regard faced by a challenge to achieve
optimum protection of witnesses without in doing so impairing the justified interests of the accused in a
defence. Measures to protect witnesses must be compatible in general terms with the purposes of criminal
proceedings, given that the state bodies are primarily obliged to solve crimes and to ﬁnd the guilt or innocenceof an accused person in a fair trial based on the rule of law. Under this premise, an attempt should be made toensure that the measures have as concrete an impact as possible: Witnesses of criminal offences primarilyneed the best possible protection in practice.
In the ﬁeld of witness protection within criminal procedure, the legislature once more took a major

44 cf. footnote 26.
45 Körner, Kommentar zum Betäubungsmittelgesetz, Arzneimittelgesetz; 6th ed. 2007: section 31 marginal no. 8.

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step towards improving this protection in 2009 with the Second Victims’ Rights Reform Act.
It is possible to state for the period prior to this that the legislative activities to improve witness
protection in Germany took a major step forward with the adoption of the Act to Harmonise Witness
Protection. The discussion on stepping up the ﬁght against organised crime, which started in the mid-eighties,
brought about improvements in witness protection in a total of three steps: First of all, with the Act on
Suppression of Illegal Drug Trafficking and other Manifestations of Organised Crime from 1992, witness
protection in criminal procedure was considerably improved by enabling endangered witnesses when
examined to refrain from stating their personal details or place of residence, or to limit the information
provided. The Witness Protection Act from 1998 led especially to a statutory provision of the deployment ofvideo technology in the Code of Criminal Procedure. Finally, the Act to Harmonise Witness Protection placed
witness protection by the police, which has a long tradition, on a statutory footing, and hence closed aloophole in the law to combat particularly serious manifestations of crime. It can be regarded as a slight
blemish that it has not been possible to integrate the provisions of the Act to Harmonise the Protection ofEndangered Witnesses in the Code of Criminal Procedure. However, this reflects the fact that witness
protection lies in the grey area between risk aversion and criminal prosecution, and that at least when it comesto police witness protection the two aspects cannot be separated from one another.
Through its “whistleblower” ruling in 2001, the Federal Constitutional Court made it clear thatstatements of an employee in the investigation proceedings against his/her employer do not necessarily entitle
it to terminate employment if the witness was merely carrying out his/her general civic duty.
When it comes to the harmonisation of witness protection at EU level, it can be found that on the one
hand there are many efforts to establish joint minimum standards, but that because of the highly-differing
witness protection systems which the EU Member States have implemented nationally, there is no common
consensus on how this has to take place.

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