An important procedural principle is immediacy, according to which only those circumstances may be used as the basis for a decision that took place before the recognizing court. This also includes that evidence by witnesses may in principle only be taken by the recognizing court. Only in exceptional cases determined by law may indirect evidence be taken or protocols from other proceedings be adopted. This concerns:
- Questioning on the spot (crime scene), if it is about the special local knowledge of the witness and his or her impression of the crime scene
- Taking of evidence before the discerning court would be associated with considerable difficulties
- Examination of witnesses before the recognizing court involves disproportionate effort
- Witness is prevented from appearing, for example, due to necessary care duties or long-lasting professional obligations
In these cases, the hearing is conducted via legal assistance channels. It should be noted here that the courts are obliged to conduct the hearing by means of video conferencing, insofar as this is possible according to the technical circumstances.
In the event of a violation of the principle of immediacy, the judgment is usually set aside, and the case is subsequently retried.
The witnesses are then examined individually, with witnesses to be examined later being absent during the examination. If the individual witness statements contradict each other, a confrontation may occur. The witness questioning itself proceeds as follows:
- Instruction on the duty to testify truthfully and on the criminal consequences of false testimony
- Instruction on reasons for refusal to testify
- Questioning about personal data and the relationship of the witness to the parties to the proceedings
- Questioning on the merits—this is done first by the judge, then the parties can participate in the questioning, and unreasonable questions can be rejected
- Recording the statement for the transcript
If the civil case is related to criminal proceedings, special rules apply to victims of violent crimes with regard to interrogation (see FAQ Criminal Law).
