The duties of the witness essentially include:
- Duty to appear in court:
Unless the taking of evidence is associated with considerable difficulties, for example because the witness is physically or for health reasons unable to do so, witnesses are obliged to appear in court. An unexcused absence can be enforced by means of coercive measures—this includes, for example, reimbursement of the costs incurred, a new summons or the imposition of an administrative fine. The penalty is doubled in the event of a further absence, and a compulsory summons must be issued.
- Duty to testify:
The enforceable duty to testify includes the duty to state the truth and to make a complete statement about all perceptions. There is a right to refuse to testify only on certain grounds specified by law. This applies, for example, where answering a question would expose certain relatives to the risk of criminal prosecution, entail pecuniary disadvantages, circumstances that became known to a witness in his capacity as a lawyer or the endangering of art or business secrets.
In case of unjustified refusal to testify, the testimony can be enforced by fines or even imprisonment (up to 6 weeks).
- Swearing an oath:
The obligation to take an oath obliges the witness to confirm his or her statement by taking an oath. In practice, however, the witness is not sworn in.
In addition to those persons who are entitled to refuse to testify, the law regulates some cases in which certain persons may not be heard as witnesses—this is referred to as testimonial incapacity. This applies, for example, to persons who are incapable of communicating their perceptions (e.g. mental illness), clergymen with regard to confession, public officials with regard to the violation of official secrecy, or registered mediators with regard to circumstances entrusted to them in the course of mediation.
