Right to refuse to give evidence (Section 53 StPO): Review and extend the scope
Federal Ministry of Justice and Consumer Protection (BMJV) survey of the federal states on the right to refuse to give evidence for staff at specialist counselling centres for victims of (sexualised) violence, dated 21/01/2021
The issue of the right to refuse to give evidence for staff at specialist counselling centres requires a broad professional discussion, which is already reflected, among other things, in the statement by the Paritätischer Gesamtverband on the planned changes to the right to refuse to give evidence (ZVR) under Section 53 StPO of 26/09/2019. The aforementioned BMJV survey of the federal states also makes it clear that a reassessment of the legal basis is necessary in coordination with the professionalisation of social work and counselling centres whose social mandate is to provide counselling for both victims and perpetrators of criminal offences.
As the Federal Working Group for Work with Perpetrators of Domestic Violence (BAG TäHG), we emphasise that the problems identified for those counselling victims arise to the same extent for those counselling the accused: the basis of work with perpetrators is the relationship of trust required on the part of the accused towards the counsellors in order to address the criminal offences they are alleged to have committed. Being able to address offences openly from both sides is a fundamental prerequisite for reflection and a critical examination of the allegations and the events of the crime, working towards future violence prevention. Many studies have shown that a combination of criminal prosecution and support services is necessary for offence groups involving interpersonal violence in close social relationships (domestic and sexualised violence, stalking) in order to reduce the risk of reoffending. The same applies to professionals in independent offender assistance.
If, on the other hand, the accused have to fear – as the current legal situation allows – that statements made within the confidential relationship with their counsellors can be used through witness summonses in criminal courts to assess guilt and sentencing, this renders the work of perpetrator counselling centres obsolete.
How a balance can be struck between the search for truth and the protection of confidentiality, and how the existing mistrust towards a profession can be reduced, requires further professional and legal-political discussion.
The proposal to extend professional secrecy for specific professional groups (such as lawyers, psychological psychotherapists, doctors) to graduates with a degree in social work appears unspecific, as it would not need to cover all the diverse fields of social work. Furthermore, various professional groups work together interdisciplinary in perpetrator work facilities, so that in our view, the right to refuse to give evidence should rather be linked to the specific clientele and the counselling content. A model based on the legally standardised right to refuse to give evidence for staff at drug counselling centres and pregnancy counselling services would be appropriate here.
The paths outlined in the 2018 expert report by Schruth and Simon, “Need for reform of the right to refuse to give evidence in social work under criminal procedure law…”, also seem feasible for the field of perpetrator counselling centres. A provider-specific application procedure to be submitted to the administrative court for the recognition of a right to refuse to give evidence may be considered, provided this has already proven successful in other areas.
The requirements of the Istanbul Convention regarding the funding of victim support and perpetrator programmes for domestic violence, which aims, among other things, at a nationwide expansion of perpetrator work facilities, result in a significant need for regulation regarding the right to refuse to give evidence. This can create a working basis that offers staff legal certainty and security of action in their responsible field of activity.
For the BAG Täterarbeit Häusliche Gewalt e.V.
Roland Hertel
Chairman of the Board
with the collaboration of
Wolf Ortiz-Müller
