Mosaic theory (investments)

After the mosaic theory of the Federal Court is assessed in the case law as to whether a witness can make a right to silence asserted in a criminal trial.

The Federal Supreme Court in a landmark decision ( 5 I BGs 286/87 ) a witness is required to withhold information pursuant to § 55 Code of Criminal Procedure ( CCP) granted on 6 February 2002, as an answer to the question posed would have resulted in certain circumstances to evidence against himself obtain.

Right to withhold information

The right to withhold information pursuant to § 55 Code of Criminal Procedure states that each witness may refuse to answer questions, the answers themselves or any of the members referred to in § 52 paragraph 1 would pull him the danger of being prosecuted for a criminal offense or a misdemeanor.

Thereafter, a witness refuse to answer such questions, the answer would expose him to the risk of being prosecuted for a crime or misdemeanor ( nemo tenetur se ipsum accusare principle), because the right to withhold information of § 55 Code of Criminal Procedure does not serve the protection of the accused but the protection of witnesses. This right is general and regardless of whether the witness has already made incriminating information.

To withhold information after the " mosaic theory "

The right to withhold information existed but only if all of the content can lead to a predicament of the witness. However, are only fragments of the testimony of the witness problematic this, the information could not refuse and should thus reveal parts to his own persecution. The Bundesgerichtshof This indirect threat is countered with the judgment of 6 February 2002. Thus, a witness to provide information even refuse altogether if his testimony with his own possible criminal behavior in such a close relationship is that a separation of the self-loading and self- incriminating statement not parts is not possible. It must, therefore, involve questions, not cause their truthful answer to a criminal prosecution, but which relate to parts of a " mosaic " of evidence building and therefore can result in exposure of the witness. For this is basically already sufficient if the witness facts would indicate that person would only indirectly the suspicion of a fact. Following a decision by the Federal Constitutional Court can even the unfavorable impact on the sentence in another method to trigger such refusal in favor of the witness.

For example, should a witness to the question of the court as to how he has come before the Court on the day of its hearing on venue clauses above, then refuse if he has traveled in the car, but does not possess a required license or has traveled by public transport, in this case, however, the required fee has not been paid, as it was in both cases, each instance of a crime would have to accuse myself and would run the risk of prosecution. This even though it has nothing to do with the actual testimony.

Given the very low threshold to support an initial suspicion of § 152 paragraph 2 Code of Criminal Procedure is a leading to a right to withhold information in the affirmative already far from direct exposure.

Assertion of the right to withhold information pursuant to § 55 Code of Criminal Procedure

A witness wants to invoke the right to withhold information of § 55 Code of Criminal Procedure with regard to possible " pieces of the puzzle ," has him or at least be known to his lawyer that the prosecutor has obtained any further information which could then result in an overall assessment to a prosecution of the witness. Mere conjecture or theoretical capacity is insufficient for the adoption of such a danger.

The refusal of information must be explicitly declared. To this end, the witness has opportunity to the end of his interrogation. After that, he can not revoke the statements.

The law according to § 55 Code of Criminal Procedure is not only given if a subsequent prosecution of the witness is undoubtedly excluded.