May a Witness in German Civil Litigation refuse to give Testimony?

Under German Rules of Civil Procedure, any natural person, including minors, can be named as a witness (Zeuge) by a party to a civil procedure. The civil court then decides on whether and to what extent these witnesses (as designated by the parties in their briefs to the court) need to be heard, i.e. whether — in the view of the court — the specific issue which the witness shall give testimony on, is:

(i) relevant for the court’s decision; and

(ii) still in dispute between Plaintiff and Defendant after the exchange of briefs.

If the answer to both requirements is yes, the respective witnesses will consequently be summoned (geladen) by the German civil court. In practice, each witness will be sent a letter by the civil court (Zeugenladung) which demands the witness to attend an oral hearing in order to be questioned as a relevant witness on one or several specific issue(s), the so called „topics for questioning“ (Beweisthema), see s. 377 German Civil Procedure Code. Thus, the witness is informed a few weeks prior to the actual oral hearing date what the court will ask him to testify on. The witness summons only describes this topic in rather broad terms. Normally, the witness summons letter does not contain any specific questions (this is different when it comes to expert witnesses). A typical example of the content of such a German civil court summons letter to a witness of fact would be:

„In the civil lawsuit between A and B regarding a car accident on Z-street on the … around … o’clock you have been named as a witness. You shall give testimony about the details how the accident occurred.“

In some cases, the court may permit the witness to testify in writing, i.e. by answering the questions by sending in a letter. This is, however, the exception to the rule.

Duties of a Witness under German Civil Procedure Law

The standard procedure is that the witness must attend the court hearing in person. Every person summoned by a German civil court has the duty to appear in court, to testify truthfully (s. 390 et seqq. German Civil Procedure Rules) and to swear an oath if this is demanded by the court (which it very rarely is, as I have explained here).

This general obligation of a German witness to give testimony in a civil lawsuit exists, however, exclusively vis-a-vis the court itself. There are no pre-trial depositions in Germany. Instead, the witness is questioned only in court and primarily by the judge. mehr lesen…