Auf der Grundlage der Übersetzung von Brian Duffett und Monika Ebinger, aktualisiert durch Kathleen Müller-Rostin und Iyamide Mahdi

Vollständige Überarbeitung und laufende Aktualisierung durch Ute Reusch

Original translation by Brian Duffett and Monika Ebinger, updated by Kathleen Müller-Rostin and Iyamide Mahdi

Translation completely revised and regularly updated by Ute Reusch

Stand: Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 3 des Gesetzes vom 11. Juli 2019 (BGBl. I, S. 1066)

Version information: The translation includes the amendments to the Act by Article 3 of the Act of 11 July 2019 (Federal Law Gazette I, p. 1066)

Zur Nutzung dieser Übersetzung lesen Sie bitte den Hinweis unter "Translations".

For conditions governing use of this translation, please see the information provided under "Translations".

German Code of Criminal Procedure

(Strafprozeßordnung – StPO)

Full citation: Code of Criminal Procedure as published on 7 April 1987 (Federal Law Gazette I, p. 1074, 1319), as last amended by Article 3 of the Act of 11 July 2019 (Federal Law Gazette I, p. 1066)

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Book 1

General provisions

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Chapter 1

Substantive jurisdiction of courts

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Section 1

Operation of Courts Constitution Act

Substantive jurisdiction of the courts shall be determined by the Courts Constitution Act (Gerichtsverfassungsgesetz).

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Section 2

Joinder and severance of criminal cases

(1) Connected criminal cases which individually would fall within the jurisdiction of courts of different rank may be tried jointly by the court of superior jurisdiction. Connected criminal cases of which individual cases would fall within the jurisdiction of particular criminal divisions pursuant to section 74 (2) and sections 74a and 74c of the Courts Constitution Act may be tried jointly by the criminal division which enjoys precedence pursuant to section 74e of the Courts Constitution Act.

(2) Such court may make an order severing connected criminal cases on grounds of expediency.

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Section 3

Meaning of ‘connected’

Cases shall be deemed to be connected if one person is accused of having committed more than one offence or if, in the case of one offence, more than one person is charged as an offender or participant, or is charged with handling stolen data, aiding after the fact, obstructing prosecution or punishment, or handling stolen goods.

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Section 4

Joinder and severance of pending criminal cases

(1) The court may make an order directing the joinder of connected or the severance of joined criminal cases even after the opening of the main proceedings, upon application by the public prosecution office, the defendant or ex officio.

(2) The court of higher rank to whose district the other courts belong shall be competent to make the order. If there is no such court, it shall be for the common upper court to decide.

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Section 5

Decisive proceedings

For the duration of the connection, the criminal case which falls within the jurisdiction of the court of higher rank shall be decisive in respect of the proceedings.

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Section 6

Review of substantive jurisdiction

At all stages of the proceedings the court shall, ex officio, review its substantive jurisdiction.

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Section 6a

Jurisdiction of particular criminal divisions

Prior to the opening of the main proceedings, the court shall, ex officio, review whether particular criminal divisions have jurisdiction pursuant to the provisions of the Courts Constitution Act (section 74 (2) and sections 74a and 74c of the Courts Constitution Act). Thereafter, it may take account of its lack of jurisdiction only upon an objection being filed by the defendant. The defendant may file such an objection in the course of the main hearing only prior to commencement of his examination on the charges.

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Chapter 2

Venue

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Section 7

Venue at place of commission

(1) Venue shall be deemed to be established in the court in whose district the offence was committed.

(2) If essential elements of an offence are established by the content of a publication appearing within the territorial scope of this federal statute, only the court in whose district the publication appeared shall be deemed to have jurisdiction pursuant to subsection (1). However, in cases of insult initiated by private prosecution, the court in whose district the publication was distributed shall also have jurisdiction if the person insulted has his domicile or habitual residence in that district.

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Section 8

Venue at domicile or habitual residence

(1) Venue shall also be deemed to be established in the court in whose district the indicted accused has his domicile at the time the charges are preferred.

(2) If the indicted accused has no domicile within the territorial scope of this federal statute, venue shall also be determined by his habitual residence and, if such place of residence is not known, by his last domicile.

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Section 9

Venue at place of apprehension

Venue shall also be deemed to be established in the court in whose district the accused was apprehended.

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Section 10

Venue for offences committed abroad on board ships or aircraft

(1) If the offence was committed outside the territorial scope of this statute on a ship authorised to fly the federal flag, the competent court shall be the court in whose district the ship’s home port is located or the port within the territorial scope of this statute first reached by the ship after commission of the offence.

(2) Subsection (1) shall apply accordingly to aircraft authorised to bear the nationality sign of the Federal Republic of Germany.

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Section 10a

Venue for offences committed abroad at sea

If no venue is established for an offence committed at sea outside the territorial scope of this statute, the venue shall be Hamburg; the competent local court shall be Hamburg Local Court.

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Section 11

Venue for offences committed abroad by extraterritorial German nationals and German civil servants

(1) In the case of Germans who enjoy the right of extraterritoriality, as well as of civil servants of the Federal Government or of one of the Länder employed abroad, venue shall be determined by the domicile which they had in Germany. If they had no such domicile, the seat of the Federal Government shall be considered their domicile.

(2) These provisions shall not apply to honorary consuls.

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Section 11a

Venue for offences committed abroad by soldiers on special foreign deployment

If an offence is committed outside the territorial scope of this statute by soldiers of the Federal Armed Forces on special deployment abroad (section 62 (1) of the Act on the Legal Status of Military Personnel (Soldatengesetz)), venue shall be deemed to be established in the court competent for the City of Kempten.

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Section 12

Concurrence of more than one venue

(1) If more than one court has jurisdiction pursuant to the provisions of sections 7 to 11a and 13a, the court which first opened the investigation shall take precedence.

(2) The investigation and decision may, however, be transferred to one of the other competent courts by the common upper court.

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Section 13

Venue for connected criminal cases

(1) Venue for connected criminal cases each of which, pursuant to the provisions of sections 7 to 11, would be subject to the jurisdiction of different courts, shall be deemed to be established in each court having jurisdiction over one of the criminal cases.

(2) If more than one connected criminal case is pending before different courts, they may be joined, in whole or in part, before one of the courts where such courts so agree, upon application by the public prosecution office. If no such agreement is reached, the common upper court shall, upon application by the public prosecution office or an indicted accused, decide whether and in which court the cases shall be joined.

(3) Cases which have been joined may be severed in the same manner.

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Section 13a

Determination of jurisdiction by Federal Court of Justice

If venue cannot be established in any court within the territorial scope of this federal statute or if such court cannot be ascertained, the Federal Court of Justice shall decide which court shall be competent.

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Section 14

Determination of jurisdiction by common upper court

If a dispute arises between courts as regards jurisdiction, the common upper court shall decide which court shall conduct the investigation and give the decision.

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Section 15

Venue established by assignment due to competent court’s impediment

If a competent court is, in an individual case, legally or factually hindered from exercising its judicial authority or if it is feared that a hearing before such a court might endanger public safety, the next upper court shall assign the investigation and decision to an equivalent court in another district.

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Section 16

Review of local jurisdiction; objection of lack of jurisdiction

Prior to the opening of the main proceedings, the court shall, ex officio, review its local jurisdiction. Thereafter, it may declare its lack of jurisdiction only upon an objection being filed by the defendant. The defendant may file such an objection in the course of the main hearing only prior to the commencement of his examination on the charges.

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Sections 17 and 18

(repealed)

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Section 19

Determination of jurisdiction in event of disputed jurisdiction

Where more than one court, one of which is competent, has stated in decisions which are no longer contestable that it lacks jurisdiction, the common upper court shall designate the competent court.

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Section 20

Investigatory acts by court lacking jurisdiction

Individual investigatory acts by a court lacking jurisdiction shall not be ineffective by virtue of that lack of jurisdiction alone.

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Section 21

Powers in exigent circumstances

A court lacking jurisdiction must conduct those investigatory acts which are to be undertaken in its district where delay is likely to jeopardise the success of the investigation.

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Chapter 3

Exclusion and challenge of court personnel

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Section 22

Debarment from exercising judicial office by law

A judge shall be barred by law from exercising his judicial office

1. if he himself was aggrieved by the offence;

2. if he is or was the spouse, the life partner, the guardian or the carer of the accused or of the aggrieved person;

3. if he is or was lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree to the accused or to the aggrieved person;

4. if he has acted in the case as an official of the public prosecution office, as a police officer, as a lawyer (Rechtsanwalt) representing the aggrieved person or as defence counsel;

5. if he has been heard in the case as a witness or expert.

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Section 23

Debarment of judges for participating in contested decision

(1) A judge who was involved in reaching a decision contested by way of appellate remedy shall be barred by law from participating in the decision of the court of higher instance.

(2) A judge who was involved in reaching a decision which was contested by application to reopen the proceedings shall be barred by law from participating in decisions related to proceedings to reopen the case. If the contested decision was taken by a court of higher instance, a judge who participated in the original decision of the court of lower instance shall also be barred. Sentences 1 and 2 shall apply accordingly to participation in decisions to prepare the reopening of the proceedings.

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Section 24

Challenge of judge; fear of bias

(1) A judge may be challenged both where he has been barred by law from exercising judicial office and for fear of bias.

(2) A challenge for fear of bias may be brought where there is reason to doubt the impartiality of a judge.

(3) The public prosecution office, the private prosecutor and the accused may exercise the right of challenge. The court personnel appointed to participate in the decision shall be named upon the request of the parties entitled to exercise the right of challenge.

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Section 25

Time point for challenge

(1) The challenge on grounds of fear of bias of an adjudicating judge shall be admissible prior to commencement of examination of the first defendant as to the defendant’s personal circumstances or, during the main hearing on an appeal on points of fact and law (Berufung) or an appeal on points of law (Revision), prior to commencement of the rapporteur’s statement. All grounds for the challenge shall be stated at the same time.

(2) Thereafter, a judge may be challenged only

1. if the circumstances on which the challenge is based occurred later or became known to the person entitled to challenge at a later date and

2. if the right of challenge is asserted without delay.

A challenge shall no longer be admissible once the defendant has had the last word.

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Section 26

Procedure for challenge

(1) The motion for challenge shall be filed with the court of which the judge is a member; it may be made orally to be recorded by the court registry. The court may request that the applicant provide, within an appropriate period, written grounds for a motion for challenge which was filed in the main hearing.

(2) The grounds for the challenge and, in the case under section 25 (2), the fact that the request was submitted in time must be substantiated. The taking of an oath to substantiate a challenge shall not be admissible. To substantiate a challenge, reference may be made to the testimony of the challenged judge.

(3) The challenged judge shall make an official statement concerning the grounds for challenge.

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Section 26a

Rejection of inadmissible motion for challenge

(1) The challenge of a judge shall be rejected by the court as being inadmissible if

1. the challenge is not made in time,

2. there is no disclosure of the grounds for the challenge or of any means of substantiating the challenge, or such disclosure is not made within the time limit specified in section 26 (1) sentence 2 or

3. it is obvious that the challenge is made merely to delay the proceedings or for purposes which are irrelevant to the proceedings.

(2) The court shall reach a decision on a rejection pursuant to subsection (1) without excluding the challenged judge from the bench. In the case under subsection (1) no. 3, a unanimous decision and disclosure of the circumstances constituting the grounds for rejection shall be required. If a commissioned or requested judge, a judge in preparatory proceedings or a criminal court judge is challenged, he shall decide himself whether the challenge is to be rejected as inadmissible.

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Section 27

Decision on admissible motion for challenge

(1) If the challenge is not rejected as inadmissible, the court of which the challenged person is a member shall decide on the motion of challenge without the challenged person’s participation.

(2) If a judge of the adjudicating criminal division is challenged, the criminal division shall decide the issue in the composition of the court prescribed for decisions made outside the main hearing.

(3) If a judge at the local court is challenged, another judge of the same court shall decide. A decision shall not be required if the person challenged considers the motion for challenge to be well-founded.

(4) If the court which is to give a decision lacks a quorum after exclusion of the challenged judge, the next superior court shall decide.

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Section 28

Appellate remedy

(1) An order declaring a challenge to be well-founded shall not be contestable.

(2) An immediate complaint may be lodged against an order rejecting the challenge as inadmissible or unfounded. If the order concerns an adjudicating judge, it may only be contested together with the judgment.

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Section 29

Performance of non-deferrable acts

(1) Prior to conclusion of the motion for challenge, a challenged judge shall perform only such acts as may not be deferred. If a judge is challenged before the commencement of the main hearing and the decision on the challenge would delay the commencement of the main hearing, the main hearing may be held before a decision is taken on the motion for challenge, up until the point at which the public prosecutor reads out the bill of indictment.

(2) If a judge is challenged during the main hearing and if the decision on the challenge (sections 26a and 27) would require an interruption of the main hearing, the main hearing may be continued until such time as a decision on the challenge may be taken without delaying the main hearing; a decision on the challenge shall be taken no later than the beginning of the day following the next day of the hearing and always prior to commencement of the closing speeches. If the challenge is declared well-founded and the main hearing thus need not be suspended, that part of the hearing completed after submission of the motion for challenge shall be repeated. This shall not apply to such acts as may not be deferred. After submission of the motion for challenge, decisions which may also be taken outside the main hearing may be taken with the participation of the challenged person only if they may not be deferred.

(3) If the court has requested, pursuant to section 26 (1) sentence 2 that the applicant provide, within a specified period, written grounds for the motion for challenge, subsection (2) shall apply accordingly, with the proviso that a decision is to be taken on the motion for challenge by the start of day following the next day of the hearing and always prior to commencement of the closing speeches.

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Section 30

Judge’s self-recusal and ex officio challenge

The court competent to decide on a motion for challenge shall also decide where no such motion has been filed but a judge reports circumstances which might justify his being challenged or if for other reasons doubts arise as to whether a judge is barred by law.

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Section 31

Lay judges, registry clerks

(1) The provisions of this chapter shall apply accordingly to lay judges as well as to registry clerks and to other persons assisting as recording clerks.

(2) It shall be for the presiding judge to decide. In a grand criminal division and a criminal division with lay judges, it shall be for the judicial members of the bench to decide. If a recording clerk has been assigned to a judge, the latter shall decide on his challenge or disqualification.

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Chapter 4

Management of files and communications in proceedings

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Section 32

Electronic file management; authorisation to issue statutory instruments

(1) Files may be kept in electronic form. The Federal Government and the Land governments shall each, by statutory instrument, determine for their respective area of responsibility the date from which files may be kept in electronic form. They may restrict the introduction of electronic file management to individual courts or prosecuting authorities or to generally determined proceedings, and they may determine that files which are being kept in paper form are to continue to be kept in paper form even after electronic file management has been introduced; where such restrictions are applied, the statutory instrument may specify that it be determined, in an administrative provision of which public notice is to be given, in which proceedings which files are to be kept in electronic form. This authorisation may also be delegated, by statutory instrument, to the competent federal or Land ministries.

(2) The Federal Government and the Land governments shall each, by statutory instrument, determine for their respective area of responsibility which organisational and technical parameters reflecting the state of the art are to apply to the management of electronic files, including the data protection, data security and accessibility requirements to be complied with. They may, by statutory instrument, delegate this authorisation to the competent federal or Land ministries.

(3) The Federal Government shall determine, by statutory instrument requiring the approval of the Bundesrat, which standards apply in respect of the transmission of electronic files between the prosecuting authorities and the courts. It may, by statutory instrument not requiring the approval of the Bundesrat, delegate this authorisation to the competent federal ministries.

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Section 32a

Electronic communications with prosecuting authorities and courts; authorisation to issue statutory instruments

(1) It shall be permissible to submit electronic documents to the prosecuting authorities and courts in accordance with the provisions of the following subsections.

(2) Electronic documents must be suitable for being processed by the prosecuting authority or the court. The Federal Government shall determine, by statutory instrument requiring the approval of the Bundesrat, those technical parameters which are suitable for the transmission and processing of such files.

(3) When kept as electronic documents, documents requiring the written form and a signature must bear a qualified electronic signature of the person responsible for them or else must be signed by the person responsible and submitted via a secure method of transmission.

(4) ‘Secure method of transmission’ means

1. the postbox and mailing service which is linked to a De-Mail account if the sender is securely logged in within the meaning of section 4 (1) sentence 2 of the De-Mail Act (De-Mail-Gesetz) when he sends the message and he requests confirmation of being securely logged in pursuant to section 5 (5) of the De-Mail Act,

2. the method of transmission between a special electronic legal mailbox pursuant to section 31a of the Federal Code for Lawyers (Bundesrechtsanwaltsordnung), or a corresponding electronic mailbox established on a legal basis, and the authorityʼs or the courtʼs electronic mailroom,

3. the method of transmission between an authorityʼs or a public-law legal entityʼs mailbox which has been established by means of an identification procedure and the authority’s or the courtʼs electronic mailroom; further details shall be regulated by statutory instrument as referred to in subsection (2) sentence 2,

4. other methods of transmission which are standardised across Germany and which have been determined by statutory instrument issued by the Federal Government with the approval of the Bundesrat for which the authenticity and integrity of the data and accessibility are guaranteed.

(5) An electronic document shall be deemed to have been received as soon as it has been stored on the device designated by the authority or court for such receipt. The sender shall be sent automatic confirmation of the date and time of receipt.

(6) If an electronic document is not suitable for being processed by the authority or court, the sender shall be promptly notified thereof, with reference being made to the fact that the document has not been validly received and to applicable technical parameters. An electronic document shall be deemed to have been received on the date and time of its earlier submission if the sender promptly re-submits it in a form which is suitable for being processed by the authority or the court and he substantiates that it corresponds exactly to the content of the initially submitted document.

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Section 32b

Creation and transmission of electronic documents used by prosecuting authorities and courts; authorisation to issue statutory instruments

(1) If a document used by the prosecuting authorities or courts is drawn up as an electronic document, all those persons responsible for the document must add their names to the document. Documents requiring the written form and a signature must in addition bear a qualified electronic signature of all the persons responsible for them.

(2) An electronic document shall be deemed to have been added to the files as soon as it has been stored in the electronic file by a person responsible or such person has occasioned such storage.

(3) If files are kept in electronic form, the prosecuting authorities and the courts are, as a rule, to transmit documents to each other as electronic documents. Bills of indictment, applications for the making of summary penalty orders outside of main hearings, appeals on points of fact and law and their grounds, appeals on points of law, their grounds and responses, as well as court decisions drawn up as electronic documents are to be transmitted as electronic documents. Where this is temporarily not possible for technical reasons, transmission in paper form shall be permissible; upon request, an electronic document is also to be filed.

(4) Copies and certified copies may be issued in paper form or in electronic form. Electronically certified copies must bear a qualified electronic signature of the person certifying the copies. If a certified copy is issued in paper form by transferring an electronic document which bears a qualified electronic signature or which was submitted via a secure method of transmission, the note certifying the document must include the result of an authenticity and integrity check of the electronic document.

(5) The Federal Government shall, by statutory instrument requiring the approval of the Bundesrat, determine the standards applicable to the drawing up of electronic documents and their transmission between the prosecuting authorities and the courts. It may, by statutory instrument not requiring the approval of the Bundesrat, delegate this authorisation to the competent federal ministries.

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Section 32c

Electronic forms; authorisation to issue statutory instruments

The Federal Government may, by statutory instrument requiring the approval of the Bundesrat, introduce electronic forms. The statutory instrument may determine that the information contained in the form is to be transmitted, in full or in part, in a structured, machine-readable format. The forms are to be made available for use on an Internet communications platform specified in the statutory instrument. The statutory instrument may determine that, in derogation from section 32a (3), identification of the user of the form may be provided by means of electronic proof of identity pursuant to section 18 of the Act on Identity Cards (Personalausweisgesetz), section 12 of the eID Card Act (eID-Karte-Gesetz) or section 78 (5) of the Residence Act (Aufenthaltsgesetz). The Federal Government may, by statutory instrument not requiring the approval of the Bundesrat, delegate this authorisation to the competent federal ministries.

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Section 32d

(not yet in force)

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Section 32e

Conversion of documents for file management purposes

(1) Documents which do not correspond to the form in which a particular file is being kept (source documents) are to be converted into the corresponding form. It shall be permissible to convert source documents being held as evidence into the corresponding form.

(2) When converting documents, technology reflecting the state of the art is to be used to ensure that the converted document corresponds to the source document both visually and in terms of content.

(3) When converting a non-electronic source document into an electronic document, proof of conversion is to be added which records which procedures were used in the conversion and that it corresponds both visually and in terms of content to the source document. If the electronic document serves to replace papers used by the prosecuting authorities or courts which have been signed by hand by the person responsible, the proof of conversion must bear a qualified electronic signature of the registry clerk of the court registry. When converting an electronic source document which bears a qualified electronic signature or which was submitted via a secure method of transmission, an entry is to be made in the files of the result of the authenticity and integrity check done on the source document.

(4) In ongoing proceedings, source documents which are not being held as evidence must be stored or held in safekeeping for at least six months following conversion. They may be stored or held in safekeeping up to the end of that calendar year, at most, in which statutory limitation commences. Once proceedings have been concluded, source documents which are not being held as evidence may be stored or held in safekeeping up to the end of that calendar year, at most, which follows the conclusion of the proceedings.

(5) Source documents which are not being held as evidence may be examined under the same conditions as apply to secured evidence. Whoever is authorised to inspect the files shall be authorised to examine them.

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Section 32f

Inspection of files; authorisation to issue statutory instrument

(1) Inspection of electronic files shall be granted by means of making the content of the file available for retrieval. Upon specific request, inspection of the files shall be granted by means of inspection of the electronic files on official premises. A hard copy of the files or a data carrier containing the content of the electronic file shall be transmitted on the basis of a request, which must include specific reasons, only if the person making the application has a justified interest therein. Where important reasons constitute an obstacle to inspection of the files in the manner provided for under sentence 1, such inspection may also be granted without a request in the manner provided for under sentences 2 and 3.

(2) Inspection of files which are available in paper form shall be granted by means of inspection of the files on official premises. Unless precluded for important reasons, inspection of the files may also be granted by making the content of the files available for retrieval or by making a copy of the files available to be taken away. Upon special request, defence counsel or lawyers shall be given the files to take away for inspection on their own business or private premises, unless this is precluded for important reasons.

(3) Decisions concerning the manner in which inspection of the files is to be granted in accordance with subsections (1) and (2) shall not be contestable.

(4) Technical and organisational measures are to be taken to guarantee that third parties cannot obtain knowledge of the content of the files whilst the files are laid open for inspection. The name of the person to whom inspection of the files is granted is to be identified in perpetuity by applying technical measures reflecting the state of the art to the files retrieved and to transmitted electronic documents.

(5) Persons who are granted inspection of the files may, neither in full nor in part, publicly disseminate those files, documents, hard copies or copies which were surrendered to them pursuant to subsection (1) or (2), nor may they be transmitted or made available to third parties for purposes other than the proceedings in question. They may use personal data which they have acquired in accordance with subsection (1) or (2) only for the purpose for which they were granted inspection of the files. They may use these data for other purposes only if they could be permitted information about them or inspection of the files for those purposes. Persons who are granted inspection of the files are to be made aware of the limitations as to use.

(6) The Federal Government shall, by statutory instrument requiring the approval of the Bundesrat, determine the standards applicable to inspection of electronic files. It may, by statutory instrument not requiring the approval of the Bundesrat, delegate this authorisation to the competent federal ministries.

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Chapter 4a

Court decisions

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Section 33

Right to be heard before decision is rendered

(1) A decision of the court rendered in the course of the main hearing shall be taken after hearing the parties to the proceedings.

(2) A decision of the court rendered outside a main hearing shall be taken after a written or oral declaration by the public prosecution office.

(3) If a decision has been taken pursuant to subsection (2), another party shall be heard before facts or evidentiary conclusions in respect of which he has not yet been heard are used to his detriment.

(4) If remand detention, seizure or other measures have been ordered, subsection (3) shall not apply if the prior hearing would jeopardise the purpose of such an order. Special provisions governing the hearing of the parties shall not be affected by subsection (3).

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Section 33a

Restoration of status quo ante following breach of right to be heard

If the court has, in an order, violated the right of a party to be heard in a manner which might affect the outcome of the case and if such party has no right to lodge a complaint nor any other legal remedy against this order, then as far as the detriment still exists the court shall make an order, either ex officio or upon application, reverting the proceedings to the situation before the decision in question was given. Section 47 shall apply accordingly.

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Section 34

Reasons for contestable and rejection decisions

Decisions which may be contested by appellate remedy as well as those refusing an application shall include reasons.

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Section 34a

Legal force by virtue of order following rejection of appellate remedy

If, after an appellate remedy has been sought in time, the contested decision immediately enters into force by virtue of an order, it shall be deemed to have entered into force at the end of the day on which the order was given.

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Section 35

Notification of decisions

(1) Decisions which are delivered in the presence of the person to whom they refer shall be notified to him orally. He shall be given a copy upon request.

(2) Other decisions shall be notified by service thereof. Where notification of the decision does not start time running in respect of a time limit, the decision may be notified informally.

(3) Papers served on individuals who are not at liberty shall be read out to them upon request.

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Section 35a

Instruction on appellate remedies

Upon notification of a decision which is contestable by way of appellate remedy within a given time limit, the person concerned shall be informed of the options for contesting such decision and of the relevant time limits and the procedures prescribed. Upon notification of a judgment, the defendant shall also be informed of the legal consequences arising out of section 40 (3) and out of section 350 (2) and, if an appeal on points of fact and law is admissible against the judgment, about the legal consequences arising out of sections 329 and 330. Where a negotiated agreement (section 257c) has preceded a judgment, the person concerned shall also be informed that he is in any case free in his decision to seek an appellate remedy.

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Chapter 4b

Procedure in respect of service

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Section 36

Service and enforcement of decisions

(1) The presiding judge shall order service of the decisions. The court registry shall ensure that service is effected.

(2) Decisions requiring enforcement shall be submitted to the public prosecution office, which shall take any necessary action. This shall not apply to decisions concerning order during the sittings.

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Section 37

Procedure for service

(1) The provisions of the Code of Civil Procedure (Zivilprozessordnung) shall apply accordingly to the procedure for service.

(2) If service which is intended to be made on a party is effected on several persons authorised to receive it, time limits shall be calculated from the date on which the last person was served.

(3) If a translation of the judgment is to be made available to a party to the proceedings pursuant to section 187 (1) and (2) of the Courts Constitution Act, the judgment shall be served together with the translation. In such cases, service on the other parties to the proceedings shall be effected at the same time as service pursuant to sentence 1.

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Section 38

Direct summons

Persons participating in criminal proceedings who have the authority to summon witnesses and experts directly shall charge the court bailiff with service of the summons.

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Section 39

(repealed)

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Section 40

Service by publication

(1) If service on an accused upon whom a summons to the main hearing has not yet been served cannot be effected in Germany in the prescribed manner and if compliance with the provisions for service abroad appears impracticable or will presumably be unsuccessful, service by publication shall be admissible. Service shall be considered effected where two weeks have elapsed since the notice was displayed.

(2) If the summons to the main hearing has previously been served on the defendant, then service on him by publication shall be admissible if it cannot be effected in Germany in the prescribed manner.

(3) In proceedings concerning an appeal on points of fact and law or an appeal on points of law filed by the defendant, service by publication shall already be admissible if it is not possible to effect service at an address at which service was last effected or which the defendant last provided.

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Section 41

Service on public prosecution office

Service on the public prosecution office shall be made by electronic transmission (section 32b (3)) or by producing the original copy of the paper to be served. If a time limit begins to run upon service and service is made by producing the original copy, the public prosecution office shall make a note on the original of the day of production. In the case of electronic transmission, the date and time of receipt (section 32a (5) sentence 1) must be included in the records.

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Chapter 5

Time limits and restoration of status quo ante

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Section 42

Calculation of time limits determined in days

When calculating a time limit determined in days, the day on which the time or the event determining the beginning of the time limit falls shall not be counted.

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Section 43

Calculation of time limits determined in weeks and months

(1) A time limit determined in weeks or months shall expire at the end of the day of the last week or the last month whose name or number corresponds to the day on which the time limit began; if the last month lacks such a day, the time limit shall expire at the end of the last day of that month.

(2) If the end of a time limit falls on a Sunday, a general public holiday or a Saturday, the time limit shall expire at the end of the next working day.

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Section 44

Restoration of status quo ante following failure to observe time limits

If a person was prevented from observing a time limit through no fault of his own, he shall be granted restoration of the status quo ante upon application. Failure to observe the time limit for filing an appellate remedy shall not be considered a fault if instruction pursuant to section 35a sentences 1 and 2, section 319 (2) sentence 3 or section 346 (2) sentence 3 has not been given.

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Section 45

Requirements of application for restoration of status quo ante

(1) The application for restoration of the status quo ante shall be filed with the court where the time limit should have been observed within one week after the reason for non-compliance no longer applies. To observe the time limit, it shall be sufficient for the application to be filed in time with the court which is to decide on the application.

(2) The facts justifying the application shall be substantiated at the time the application is filed or during the proceedings concerning the application. The omitted act shall subsequently be undertaken within the time limit for filing the application. Where this is done, restoration may also be granted without an application being filed.

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Section 46

Jurisdiction, appellate remedy

(1) The decision on the application shall be taken by the court which would have been competent to decide on the facts of the case if the act concerned had been completed on time.

(2) A decision granting the application shall not be contestable.

(3) An immediate complaint may be lodged against a decision refusing an application.

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Section 47

No suspension of enforcement

(1) An application for restoration of the status quo ante shall not suspend enforcement of a court decision.

(2) The court may, however, order that enforcement be postponed.

(3) If restoration of the status quo ante annuls the legal effect of a court decision, then warrants of arrest or orders for placement, as well as other orders which were in force at the time the court decision took effect, shall become effective again. In the case of a warrant of arrest or an order for placement, the court granting restoration of the status quo ante shall make an order revoking such warrant of arrest or order for placement if it is evident that the requirements therefor are no longer met. If this is not the case, the court competent pursuant to section 126 (2) shall review the detention without delay.

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Chapter 6

Witnesses

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Section 48

Obligations on witnesses; summons

(1) Witnesses shall be obliged to appear before the judge on the date set down for their examination. They shall have the duty to testify if no exception admissible by statute applies.

(2) A witness summons shall specify procedural requirements serving the interests of the witness, the forms of assistance available to witnesses as well as the legal consequences of failure to appear.

(3) If the witness is also the aggrieved person, then account shall be taken at all times of his particular vulnerability throughout hearings, examinations and other investigatory acts concerning him. An examination shall, in particular, be made

1. as to whether an imminent risk of serious detriment to the witness’s well-being requires measures to be taken pursuant to section 168e or section 247a,

2. as to whether any of the witness’s overriding interests meriting protection require that the public be excluded pursuant to section 171b (1) of the Courts Constitution Act and

3. as to what extent it is possible to refrain from asking non-essential questions concerning the witness’s personal sphere of life pursuant to section 68a (1).

Account is, further, to be taken of the witness’s personal situation and the nature and circumstances of the offence.

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Section 49

Examination of Federal President

The Federal President shall be examined in his place of abode. He shall not be summoned to the main hearing. The record of his examination by the court shall be read out at the main hearing.

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Section 50

Examination of members of parliament and of government

(1) Members of the Bundestag, of the Bundesrat, of a Land parliament or of a second chamber shall be examined whilst present at their place of assembly.

(2) Members of the Federal Government or of a Land government shall be examined at their government office or, if they are not there, at the place where they are.

(3) Any deviation from the foregoing provisions shall require,

in the case of members of a body mentioned in subsection (1), the approval of that body,

in the case of members of the Federal Government, the approval of the Federal Government,

in the case of members of a Land government, the approval of the Land government.

(4) Members of the legislative bodies mentioned in subsection (1) and members of the Federal Government or of a Land government, if examined outside the main hearing, shall not be summoned to such hearing. The record of their judicial examination shall be read out at the main hearing.

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Section 51

Consequences of witness’s failure to appear in court

(1) A witness who has been properly summoned yet fails to appear shall be charged with the costs attributable to his failure to appear. At the same time, an administrative fine shall be imposed on him and an order made for arrest for disobedience to court orders if the administrative fine cannot be collected. A witness may also be brought before the court by force; section 135 shall apply accordingly. In the case of repeated non-appearance, the administrative measure may be imposed a second time.

(2) No costs shall be charged nor any administrative measure imposed if the witness provides a sufficient and timely excuse for his non-appearance. If such excuse is not provided in time pursuant to sentence 1, the charging of costs and the imposition of a administrative measure shall be dispensed with only if it is demonstrated that the delayed excuse is not the witness’s fault. If the witness is sufficiently excused thereafter, the orders made shall be revoked subject to the conditions of sentence 2.

(3) Authority to order such measures shall also be vested in the judge in the preliminary investigation as well as in a commissioned and a requested judge.

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Section 52

Right of accused’s relatives to refuse testimony

(1) The following persons may refuse to testify:

1. the accused’s fiancé or fiancée;

2. the accused’s spouse, even if the marriage no longer exists;

2a. the accused’s life partner, even if the life partnership no longer exists;

3. a person who is or was lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree to the accused.

(2) If minors, due to the lack of intellectual maturity, or minors or persons placed in care, due to mental illness or disability, have no sufficient understanding of the importance of their right of refusal to testify, then testimony may be taken from such persons only if they are willing to testify and if their statutory representative also agrees to their examination. If the statutory representative is himself accused, he may not decide on the exercise of the right of refusal to testify; if both parents are entitled to act as statutory representative, the same shall apply to the parent who is not accused.

(3) Persons who are entitled to refuse to testify and, in cases under subsection (2), also their representatives authorised to decide on the exercise of the right of refusal to testify shall be instructed concerning their right prior to each examination. They may revoke the waiver of this right during the examination.

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Section 53

Right to refuse testimony on professional grounds

(1) The following persons may also refuse to testify:

1. clergy, concerning that information which was confided to them or which became known to them in their capacity as spiritual advisers;

2. defence counsel of the accused, concerning that information which was confided to them or which became known to them in this capacity;

3. lawyers and non-lawyer providers of legal services who have been admitted to a bar association, patent attorneys, notaries, certified public accountants, sworn auditors, tax consultants (Steuerberater) and tax representatives (Steuerbevollmächtigte), doctors, dentists, psychological psychotherapists, psychotherapists specialising in the treatment of children and juveniles, pharmacists and midwives, concerning that information which was confided to them or which became known to them in this capacity; subject to section 53a, the same shall not apply to in-house lawyers (section 46 (2) of the Federal Code for Lawyers) and in-house patent attorneys (section 41a (2) of the Federal Code for Patent Attorneys (Patentanwaltsordnung)) in respect of that which was confided to them or became known to them in this capacity;

3a. members or representatives of a recognised counselling agency under sections 3 and 8 of the Act on Pregnancies in Conflict Situations (Schwangerschaftskonfliktgesetz), concerning that information which was confided to them or which became known to them in this capacity;

3b. drug dependency counsellors in a counselling agency recognised or set up by an authority, a body, an institution or a foundation under public law, concerning that information which was confided to them or which became known to them in this capacity;

4. Members of the Bundestag, of the Federal Convention, of the European Parliament from the Federal Republic of Germany or of a Land parliament, concerning persons who have confided certain facts to them in their capacity as members of these bodies or to whom they have confided facts in this particular capacity, as well as concerning the facts themselves;

5. individuals who are or have been professionally involved in the preparation, production or dissemination of printed matter, broadcasts, film documentaries or in the information and communication services involved in instruction or in the formation of opinion.

The persons designated in sentence 1 no. 5 may refuse to testify concerning the author or contributor of comments and documentation or concerning any other informant or the information communicated to them in their professional capacity, including its content, as well as concerning the content of materials which they have produced themselves and matters which have received their professional attention. This shall only apply insofar as this concerns contributions, documentation, information and materials for the editorial element of their activity or information and communication services which have been editorially reviewed.

(2) The persons designated in subsection (1) sentence 1 nos. 2 to 3b may not refuse to testify if they have been released from their obligation of secrecy. The right of the persons designated in subsection (1) sentence 1 no. 5 to refuse to testify concerning the content of materials which they themselves have produced and matters which have received their professional attention shall lapse if the testimony is required to assist in investigating a serious criminal offence (Verbrechen) or if the subject of the investigation is

1. a crime against peace and of endangering the democratic state under the rule of law or of treason and of endangering external security (sections 80a, 85, 87, 88, 95, also in conjunction with sections 97b, 97a, 98 to 100a of the Criminal Code (Strafgesetzbuch)),

2. a crime against sexual self-determination under sections 174 to 176 and section 177 (2) no. 1 of the Criminal Code or

3. money laundering or concealing unlawfully acquired assets under section 261 (1) to (4) of the Criminal Code

and an investigation of the facts and circumstances or an investigation as to the whereabouts of the accused would otherwise offer no prospect of success or would be much more difficult. The witness may refuse to testify even in such cases, however, where testimony would result in disclosure of the identity of the author or contributor of comments and documentation or of any other informant, or of the information communicated to him in his professional capacity pursuant to subsection (1) sentence 1 no. 5 or of the content of such communications.

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Section 53a

Right of persons involved to refuse testimony

(1) Persons who, in the context of

1. a contractual relationship,

2. a measure preparatory to vocational training or

3. some other ancillary activity,

are involved in the professional activity of persons who have the right to refuse testimony on professional grounds pursuant to section 53 (1) sentence 1 nos. 1 to 4 shall be equal to those persons. The decision as to whether or not such persons shall exercise their right to refuse to testify shall be taken by the persons with the right to refuse testimony on professional grounds, unless such a decision cannot be obtained within a foreseeable time.

(2) Release from the obligation of secrecy (section 53 (2) sentence 1) shall apply equally to the persons involved referred to in subsection (1).

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Section 54

Authorisation for members of public service to testify

(1) The special provisions of civil service law shall apply to the examination of judges, civil servants and other persons in the public service as witnesses concerning circumstances covered by their official obligation of secrecy, as well as to permission to testify.

(2) Members of the Bundestag, of a Land parliament, of the Federal Government or of a Land government, as well as employees of a federal or Land parliamentary group shall be subject to the special provisions applicable to them.

(3) The Federal President may refuse to testify if his testimony would be detrimental to the welfare of the Federation or of one of the Länder.

(4) These provisions shall also apply if the persons referred to in the above are no longer members of the public service or employees of a parliamentary group or if their terms of office have expired, insofar as the events concerned occurred or became known to them during their terms of service, employment or office.

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Section 55

Right to refuse to give information

(1) Any witness may refuse to answer any questions the reply to which would subject him or one of the relatives indicated in section 52 (1) to the risk of being prosecuted for an offence or a regulatory offence.

(2) The witness shall be instructed as to his right to refuse to answer.

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Section 56

Substantiation of grounds for refusal to testify

The fact on which a witness bases his refusal to testify in the cases under sections 52, 53 and 55 is to be substantiated upon request. A sworn declaration by the witness shall be sufficient.

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Section 57

Instruction

Before examination, witnesses shall be warned that they must tell the truth and shall be instructed as to the criminal law consequences of incorrect or incomplete statements. They shall be informed of the possibility that they may be placed under oath. If they are placed under oath, they shall be instructed on the importance of the oath and on the fact that the oath may be taken with or without religious affirmation.

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Section 58

Examination; confrontation

(1) Witnesses shall be examined individually and in the absence of the witnesses who are to be heard subsequently.

(2) A confrontation with other witnesses or with the accused in the preliminary investigation shall be admissible if this appears necessary for the further proceedings. Defence counsel shall be permitted to be present during a confrontation with the accused. He is to be given prior notice of the date set down for the confrontation. He shall not be entitled to have the date postponed on account of his being prevented from attending.

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Section 58a

Video and audio recording of examination

(1) A video and audio recording may be made of the examination of a witness. The examination shall, after evaluation of the relevant circumstances, be recorded and conducted as a judicial examination

1. if the interests meriting protection of persons under 18 years of age as well as of persons who as children or juveniles have been aggrieved by one of the offences under section 255a (2) can thus be better safeguarded or

2. if there is a concern that it will not be possible to examine the witness during the main hearing and the recording is required in order to establish the truth.

(2) Use of the audio-visual recording shall be admissible only for the purposes of the criminal prosecution and only insofar as it is required in order to establish the truth. Section 101 (8) shall apply accordingly. Sections 147 and 406e shall apply accordingly, subject to the proviso that copies of the recording may be made available to persons entitled to inspect the files. The copies may not be duplicated nor may they be passed on. They are to be returned to the public prosecution office as soon as there is no further legitimate interest in using them. The transfer of the recording or the release of copies to persons or authorities other than those aforementioned shall be subject to the consent of the witness.

(3) If the witness does not consent to a copy of the recording of his examination as a witness being made available pursuant to subsection (2) sentence 3, then instead a written transcript of the recording shall be released to the persons entitled to inspect the files in accordance with sections 147 and 406e. The person who produces the transcript shall sign, making the addendum that he confirms the accuracy of the transcript. The right to view the recording pursuant to sections 147 and 406e shall remain unaffected. The witness is to be informed of the right to refuse his consent under sentence 1.

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Section 58b

Examination by way of audio-visual transmission

The examination of a witness outside the main hearing may be effected in such a way that the witness is located somewhere other than the place where the person is being examined and the examination is simultaneously transmitted audio-visually to the place where the witness is located and to the examination room.

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Section 59

Administration of oath

(1) Witnesses shall not be placed under oath unless the court, at its discretion, deems it necessary because of the decisive importance of the statement or in order to obtain a true statement. The reason why the witness is placed under oath need not be specified in the record, unless the witness is examined outside the main hearing.

(2) Witnesses shall be placed under oath individually after they have been examined. Except as otherwise provided, the oath shall be taken at the main hearing.

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Section 60

Prohibitions in respect of administration of oath

An oath shall not be administered

1. to persons who are under 18 years of age at the time of the examination or who have no sufficient understanding of the nature and importance of the oath due to their lack of intellectual maturity or mental illness or disability;

2. to persons who are suspected of having committed the offence which forms the subject of the investigation or of having participated in it, or who are suspected of handling stolen data, aiding after the fact, obstructing prosecution or punishment, or handling stolen goods, or who have already been sentenced in respect thereof.

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Section 61

Right to refuse to give testimony under oath

The relatives of the accused indicated in section 52 (1) shall have the right to refuse to give testimony under oath. They are to be instructed accordingly.

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Section 62

Administration of oath in preparatory proceedings

Administration of an oath in the preparatory proceedings shall be admissible

1. in exigent circumstances or

2. if the witness is expected to be unavailable at the main hearing

and the conditions of section 59 (1) apply.

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Section 63

Administration of oath on examination by commissioned or requested judge

If the witness is examined by a commissioned or requested judge, an oath shall be administered where admissible if so demanded in the commission or request from the court.

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Section 64

Form of oath

(1) An oath with religious affirmation shall be administered in such a way that the judge addresses the following words to the witness:

‘You swear by God the Almighty and Omniscient that, to the best of your knowledge, you have told the pure truth and have not concealed anything’,

whereupon the witness says the words:

‘I swear, so help me God’.

(2) The oath without religious affirmation shall be administered in such a way that the judge addresses the following words to the witness:

‘You swear that, to the best of your knowledge, you have told the pure truth and have not concealed anything’,

whereupon the witness says the words:

‘I swear’.

(3) If a witness indicates that, as a member of a religious denomination or of a community professing a creed, he wants to use a formula of affirmation used by such denomination or community, he may add it to the oath.

(4) The person swearing the oath shall raise his right hand when taking the oath.

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Section 65

Affirmation of truth of testimony equivalent to oath

(1) If a witness states that he does not wish to swear an oath for reasons of faith or conscience, he shall affirm the truth of his testimony. The affirmation shall be equivalent to an oath; the witness shall be informed of this fact.

(2) The truth of the statement shall be affirmed in such a way that the judge addresses the following words to the witness:

‘You are aware of your responsibility before the court and affirm that, to the best of your knowledge, you have told the pure truth and have not concealed anything’,

whereupon the witness says:

‘Yes’.

(3) Section 64 (3) shall apply accordingly.

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Section 66

Taking of oath by hearing or speech impaired persons

(1) Hearing or speech impaired persons may choose to take the oath by repeating the form of oath or by writing down and signing the form of oath or with the help of a person who facilitates communication to be appointed by the court. The court shall provide appropriate technical aids. The hearing or speech impaired person is to be instructed as to his right to choose.

(2) The court may require that the oath be taken in written form or order the attendance of a person who facilitates communication if the hearing or speech impaired person has not exercised his right to choose under subsection (1) or if it is not possible, or only with disproportionate effort, to take the oath in the manner chosen pursuant to subsection (1).

(3) Sections 64 and 65 shall apply accordingly.

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Section 67

Reliance on prior oath

If a witness, after having been examined under oath, is examined a second time in the same preliminary investigation or in the same main proceedings, the judge, instead of administering a second oath, may have the witness confirm the accuracy of his statement by reference to the oath previously taken.

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Section 68

Examination as to witness’s identity; limitation of information, victim protection

(1) The examination shall begin with the witness being asked to state his first name, last name, name at birth, age, occupation and place of residence. A witness who has made observations in his official capacity may state his place of work instead of his place of residence.

(2) A witness shall, furthermore, be permitted to state his business address or place of work or another address at which documents can be served instead of stating his place of residence if there is well-founded reason to fear that legally protected interests of the witness or of another person might be endangered or that witnesses or another person might be improperly influenced if the witness states his place of residence. If the conditions of sentence 1 obtain at the main hearing, the presiding judge shall permit the witness not to state his place of residence.

(3) If there is well-founded reason to fear that revealing the identity or the place of residence or whereabouts of the witness would endanger the witness’s or another person’s life, limb or liberty, the witness may be permitted not to provide personal identification data or to provide such data only in respect of an earlier identity. However, if so asked at the main hearing, he shall be required to state in what capacity the facts he is indicating became known to him.

(4) If there are sufficient indications that the conditions of subsection (2) or (3) obtain, the witness is to be advised of the rights provided thereunder. In the case under subsection (2), the witness shall be assisted in specifying an address at which documents can be served. Documentation establishing the witness’s place of residence or identity shall be kept by the public prosecution office. They shall only be included in the files when the fear of danger ceases.

(5) Subsections (2) to (4) shall also apply after conclusion of the examination of the witness. Insofar as the witness was permitted not to provide data, it must be ensured in the course of the provision of information from or inspection of the files that these data are not made known to other persons, unless a danger within the meaning of subsections (2) and (3) appears to be ruled out.

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Section 68a

Limitation of right to ask questions to protect privacy

(1) Questions concerning facts which might dishonour the witness or a person who is his relative within the meaning of section 52 (1) or which concern their personal sphere of life are to be asked only if they cannot be dispensed with.

(2) Questions concerning circumstances justifying the witness’s credibility in the case at hand, in particular concerning his relationship with the accused or the aggrieved person, are to be asked insofar as this is necessary. A witness is to be asked about his previous convictions only if their establishment is necessary in order to decide whether the conditions of section 60 no. 2 have been met or to determine his credibility.

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Section 68b

Assistance of legal counsel for witnesses

(1) Witnesses may avail themselves of the assistance of legal counsel. Assisting legal counsel who appears at the examination of a witness shall be permitted to be present. He may be barred from the examination if certain facts justify the assumption that his presence would not only negligibly hinder the orderly taking of evidence. As a rule, this shall be the case if, on the basis of certain facts, it can be assumed that

1. assisting counsel participated in the offence to be investigated or in handling stolen data, aiding after the fact, obstruction of prosecution or punishment, or handling of stolen goods connected therewith,

2. the testimony of the witness will be influenced by the fact that assisting counsel appears to be committed not only to the interests of the witness or

3. assisting counsel will use information obtained during the examination for the suppression of evidence within the meaning of section 112 (2) no. 3 or will pass on such information in a manner which is detrimental to the purpose of the investigation.

(2) A witness who does not have the assistance of legal counsel at his examination and whose interests meriting protection cannot be taken into account in another way shall be assigned such counsel for the duration of the examination if special circumstances obtain from which it is evident that the witness is unable to exercise his rights himself at his examination. Section 142 (1) shall apply accordingly.

(3) Decisions pursuant to subsection (1) sentence 3 and subsection (2) sentence 1 shall not be contestable. The grounds therefor shall be documented, insofar as this does not jeopardise the purpose of the investigation.

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Section 69

Examination as to subject matter

(1) The witness shall be directed to state, without prompting or interruption, all he knows about the subject of his examination. The subject of the investigation and the name of the accused, if there is an accused, shall be indicated to the witness before the examination.

(2) If so required, further questions shall be asked in order to clarify and complete the statement as well as to establish the grounds on which the witness’s knowledge is based. Witnesses who have been aggrieved by the offence shall in particular be given the opportunity to make submissions concerning the effects which it had on them.

(3) The provision in section 136a shall apply accordingly to the examination of a witness.

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Section 70

Consequences of undue refusal to testify or take oath

(1) A witness who without having a legal reason therefor refuses to testify or to take an oath shall be charged with the costs caused by such refusal. At the same time an administrative fine shall be imposed on him and, if the fine cannot be recovered, an order shall be made for arrest for disobedience to court orders.

(2) Detention may also be ordered to force a witness to testify; such detention shall not, however, extend beyond the termination of those particular proceedings, nor beyond a period of six months.

(3) The judge in the preliminary investigation and any commissioned or requested judge shall also have the authority to order such measures.

(4) If these measures have been exhausted, they may not be repeated in the same proceedings or in other proceedings if the same offence is the subject of the proceedings.

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Section 71

Compensation of witnesses

Witnesses shall be compensated pursuant to the Judicial Remuneration and Compensation Act (Justizvergütungs- und -entschädigungsgesetz).

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Chapter 7

Experts and inspection

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Section 72

Application of provisions concerning witnesses to experts

The provisions of Chapter 6 concerning witnesses shall apply accordingly to experts, except as otherwise provided under the following sections.

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Section 73

Selection of experts

(1) The judge shall select the experts to be consulted and shall determine their number. He shall agree with them on a time limit within which their opinions may be rendered.

(2) If experts are publicly appointed for certain kinds of opinions, other persons are to be selected only if this is required by special circumstances.

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Section 74

Challenge of experts

(1) An expert may be challenged for the same reasons that a judge may be challenged. However, the fact that the expert was examined as a witness shall not be a ground for challenge.

(2) The public prosecution office, the private prosecutor and the accused shall have a right of challenge. The appointed experts shall be made known to the persons entitled to challenge, unless special circumstances present an obstacle thereto.

(3) The ground for challenge shall be substantiated; the taking of an oath to substantiate a challenge shall be precluded.

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Section 75

Expert’s obligation to render opinion

(1) A person appointed as an expert must comply with the appointment if he has been publicly appointed to render opinions of the required kind or if he publicly and commercially practises the science, art or trade the knowledge of which is a prerequisite for rendering an opinion or if he has been publicly appointed or authorised to exercise such profession.

(2) The obligation to render an opinion shall also be incumbent upon a person who has stated his willingness to do so before the court.

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Section 76

Expert’s privilege of refusal to render opinion

(1) An expert may refuse to render an opinion for the same reasons for which a witness may refuse to testify. An expert may also be released from his obligation to render an opinion for other reasons.

(2) The special provisions of civil service law shall apply to the examination of judges, civil servants and other persons in the public service as experts. Members of the Federal Government or of a Land government shall be subject to the special provisions applicable to them.

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Section 77

Expert’s failure to appear in court or undue refusal to render opinion

(1) In the case of the non-appearance or refusal of an expert obliged to render an opinion, he shall be charged with the costs caused by his non-appearance or refusal. An administrative fine shall be imposed on him at the same time. In the case of repeated disobedience, the administrative fine may be assessed a second time in addition to the costs.

(2) If an expert obliged to render an opinion refuses to agree upon a reasonable time limit pursuant to section 73 (1) sentence 2 or if he fails to observe the time limit agreed upon, an administrative fine may be imposed on him. The assessment of an administrative fine must be preceded by a warning and the setting of an extension to the time limit. In the case of repeated failure to observe the time limit, the administrative fine may be assessed again.

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Section 78

Judicial direction of expert’s activity

The judge shall guide the expert’s participation insofar as he deems this necessary.

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Section 79

Administration of oath to expert

(1) An expert may be placed under oath at the discretion of the court.

(2) The oath shall be taken after the opinion has been rendered; it shall contain the assurance that the expert has rendered his opinion impartially and to the best of his knowledge and belief.

(3) If the expert has been sworn generally to render opinions of the kind concerned, a reference to his oath shall be sufficient.

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Section 80

Preparation of opinion through further clarification

(1) The expert may, at his request, be given further details in order to be able to prepare his opinion by means of examining witnesses or the accused.

(2) He may, for the same purpose, be permitted to inspect the file, to be present at the examination of witnesses or of the accused, and to address questions to them directly.

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Section 80a

Preparation of opinion during preliminary investigation

An expert shall already be given the opportunity during the preliminary investigation to prepare the opinion to be rendered at the main hearing if it is expected that an order will be made for the accused’s placement in a psychiatric hospital, in an addiction treatment facility or in preventive detention.

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Section 81

Placement of accused during preparation of opinion

(1) When preparing an opinion on the accused’s mental condition the court may, after hearing an expert and defence counsel, order that the accused be taken to a public psychiatric hospital and placed under observation there.

(2) The court shall make the order pursuant to subsection (1) only if the accused is strongly suspected of having committed the offence. The court may not make this order if it is disproportionate to the importance of the matter or to the penalty or measure of reform and prevention to be expected.

(3) In the preparatory proceedings, it shall be for the court which would be competent to open the main proceedings to decide.

(4) An immediate complaint against the order shall be admissible. It shall have suspensive effect.

(5) The period of placement in a psychiatric hospital pursuant to subsection (1) may not exceed a total of six weeks.

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Section 81a

Physical examination of accused; permissible physical interventions

(1) A physical examination of the accused may be ordered for the purposes of establishing facts which are of relevance for the proceedings. For this purpose, the taking of blood samples and other bodily intrusions which are effected by a physician in accordance with the rules of medical science for the purpose of examination shall be admissible without the consent of the accused, provided no detriment to his health is to be expected.

(2) The authority to give such order shall be vested in the judge and, if a delay would endanger the success of the examination, also in the public prosecution office and its investigators (section 152 of the Courts Constitution Act). In derogation from sentence 1, the taking of blood samples shall not require a judicial order if certain facts give rise to the suspicion that one of the offences under section 315a (1) no. 1 and (2) and (3), section 315c (1) no. 1 (a) and (2) and (3) or section 316 of the Criminal Code has been committed.

(3) Blood samples or other cell tissue taken from the accused may be used only for the purposes of the criminal proceedings for which they were taken or in other criminal proceedings pending; they shall be destroyed without delay as soon as they are no longer required for such purposes.

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Section 81b

Photographs and fingerprints of accused

Photographs and fingerprints of the accused may be taken, even against his will, and measurements may be made of him and other similar measures taken with regard to him insofar as is required for the purposes of conducting the criminal proceedings or of the police records department.

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Section 81c

Examination of other persons

(1) Persons other than the accused who might be called as witnesses may be examined without their consent only insofar as establishing the truth involves ascertaining whether their body shows a particular trace or consequence of an offence.

(2) Examinations to ascertain descent and the taking of blood samples from persons other than the accused shall be admissible without such persons’ consent provided no detriment to their health is to be expected and the measure is indispensable for establishing the truth. The examinations and the taking of blood samples may only ever be carried out by a physician.

(3) Examinations or the taking of blood samples may be refused for the same reasons as testimony may be refused. If minors, due to the lack intellectual maturity, or if minors or persons placed in care, due to mental illness or disability, do not have sufficient understanding of the importance of their right of refusal, their statutory representative shall decide; section 52 (2) sentence 2 and (3) shall apply accordingly. If the statutory representative is precluded from taking a decision (section 52 (2) sentence 2) or is prevented from taking a decision in time for other reasons and the immediate examination or taking of blood samples appears necessary to secure evidence, such measures shall be admissible only upon special order by the court and, if the court cannot be reached in time, by the public prosecution office. The decision ordering the measures shall not be contestable. The evidence furnished pursuant to sentence 3 may be used in further proceedings only with the consent of the statutory representative authorised to give such consent.

(4) Measures under subsections (1) and (2) shall be inadmissible if, on evaluation of the circumstances as a whole, the person concerned cannot reasonably be expected to undergo such measures.

(5) The authority to give such order shall be vested in the court and, if a delay would endanger the success of the examination, also in the public prosecution office and its investigators (section 152 of the Courts Constitution Act); subsection (3) sentence 3 shall remain unaffected. Section 81a (3) shall apply accordingly.

(6) The provisions of section 70 shall apply accordingly to cases where the person concerned refuses to undergo an examination. Direct force may be used only upon special order of the judge. The order shall presuppose either that the person concerned insists upon the refusal despite the imposition of an administrative fine or that there are exigent circumstances.

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Section 81d

Physical examination by persons of same sex

(1) If the physical examination might violate the sense of shame of the person to be examined, it shall be carried out by a person of the same sex or by a female or male physician. Where there is a legitimate interest, a request that a physician of a particular sex be appointed to perform the examination shall be granted. Upon the request of the person concerned, a trusted person is to be admitted. The person concerned is to be instructed as to the provisions of sentences 2 and 3.

(2) This provision shall also be applicable where the person concerned consents to the examination.

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Section 81e

Molecular and genetic analysis

(1) Material obtained by means of measures under section 81a (1) or section 81c may be subjected to molecular and genetic analysis in order to establish the person’s DNA profile, descent and sex, and these data may be matched with reference material insofar as this is necessary to establish the facts. Other determinations may not be made; examinations designed to make such determinations shall be inadmissible.

(2) Examinations which are admissible pursuant to subsection (1) may also be carried out on material which has been found, secured or seized. Subsection (1) sentence 2 and section 81a (3) half-sentence 1 shall apply accordingly. Section 81f (1) shall apply accordingly if the identity of the person from whom this material was taken is known.

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Section 81f

Procedure for molecular and genetic analysis

(1) Without the written consent of the person concerned, examinations pursuant to section 81e (1) may be ordered only by the court and, in exigent circumstances, by the public prosecution office and its investigators (section 152 of the Courts Constitution Act). A person who consents is to be instructed as to the purpose for which the data to be obtained will be used.

(2) The written order shall only appoint experts who are publicly appointed, who are obliged under the Obligations Act (Verpflichtungsgesetz) or who are publicly appointed and who are not members of the authority conducting the investigations or who belong to an organisational unit of such authority which, both in terms of its organisation and its area of work, is separate from the official agency conducting the investigations to carry out the examinations pursuant to section 81e. The experts shall take technical and organisational steps to ensure that no inadmissible molecular and genetic analyses can be carried out and that no unauthorised third parties have access to information concerning the analyses. The material to be analysed shall be given to the expert with no indication of the name, address, or date or month of birth of the individual concerned. If the expert is not a public agency, section 38 of the Federal Data Protection Act (Bundesdatenschutzgesetz) shall apply, subject to the proviso that the supervisory authority shall also monitor compliance with data protection rules even if it has no sufficient indication that such rules are being violated and the expert is not automatically processing personal data in data files.

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Section 81g

DNA profiling

(1) If the accused person is suspected of having committed an offence of substantial significance or a crime against sexual self-determination, then for the purposes of establishing identity in future criminal proceedings cell tissue may be collected from him and subjected to molecular and genetic analysis for the purposes of establishing the accused person’s DNA profile or sex if the nature of the offence or the way it was committed, the personality of the accused or other information provide grounds for assuming that criminal proceedings will be conducted against him in the future in respect of a criminal offence of substantial significance. If the person concerned habitually commits other offences, this may be deemed to be equivalent to an offence of substantial significance by reference to the level of the injustice done.

(2) The cell tissue collected may be used only for the molecular and genetic analysis referred to in subsection (1); it shall be destroyed without delay once it is no longer required for that purpose. Information other than that required in order to establish the accused person’s DNA profile or sex may not be ascertained during the examination; tests to establish such information shall be inadmissible.

(3) Without the written consent of the accused, the collection of cell tissue may be ordered only by the court and, in exigent circumstances, by the public prosecution office and its investigators (section 152 of the Courts Constitution Act). Without the written consent of the accused, the molecular and genetic analysis of cell tissue may be ordered only by the court. Persons who are to give their consent are to be instructed as to the purpose for which the data to be obtained will be used. Section 81f (2) shall apply accordingly. In its written reasons the court shall specify, in relation to the particular case concerned,

1. the determining facts relevant to ascertaining the severity of the offence,

2. the information giving rise to the assumption that the accused will be the subject of criminal proceedings in the future as well as

3. an evaluation of the relevant circumstances in each case.

(4) Subsections (1) to (3) shall apply accordingly if the person concerned has been convicted of the offence with binding effect or was not convicted merely on the grounds that

1. lack of criminal responsibility has been proved or cannot be ruled out,

2. he is unfit to stand trial on the grounds of insanity or

3. lack of criminal responsibility has been proved or cannot be ruled out (section 3 of the Youth Courts Act (Jugendgerichtsgesetz)),

and the corresponding entry in the Federal Central Criminal Register or the Youth Register has not yet been deleted.

(5) The data collected may be stored at the Federal Criminal Police Office and used in accordance with the Federal Criminal Police Office Act (Bundeskriminalamtgesetz). The same shall apply

1. subject to the conditions of subsection (1) to the data obtained pursuant to section 81e (1) in respect of an accused person as well as

2. to the data obtained pursuant to section 81e (2).

The data may be transmitted only for the purposes of criminal proceedings, to avert a danger and to provide international mutual assistance in respect thereof. In the case under sentence 2 no. 1 the accused is to be informed without delay that the data have been stored and is to be instructed that he may apply for a court decision.

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Section 81h

Serial DNA screening

(1) If certain facts give rise to the suspicion that a serious criminal offence against life, physical integrity, personal liberty or sexual self-determination has been committed, then, with their written consent, persons who manifest certain significant features which may be assumed to apply to the offender

1. may have cell tissue collected from them,

2. such cell tissue shall be subjected to a molecular and genetic analysis to establish a person’s sex and the DNA profile and

3. the DNA profiles established automatically matched against the DNA profiles of trace material,

insofar as this is necessary in order to ascertain whether the trace material originated from such persons or from their relatives in the direct line or in the collateral line up to the third degree and the measure is not disproportionate to the severity of the offence, in particular in view of the number of persons affected by the measure.

(2) Any measure under subsection (1) shall require a court order. This order shall be made in writing. The order shall designate the persons concerned by reference to certain significant features and shall give reasons. A prior hearing of the persons concerned shall not be required. The decision ordering the measure shall not be contestable.

(3) Section 81f (2) shall apply accordingly to implementation of the measure. The cell tissue collected shall be destroyed without delay as soon as it is no longer needed for the purposes of the analysis referred to in subsection (1). Insofar as the data relating to the DNA profiles established by the measure are no longer needed to investigate the facts, they shall be deleted without delay. The fact of the destruction and deletion shall be documented.

(4) The persons concerned are to be instructed in writing that the measure may only be implemented with their consent. Before giving their consent, they shall also be notified in writing that

1. the cell tissue collected is to be used exclusively to establish a person’s DNA profile, descent and sex and that it will be destroyed without delay as soon as it is no longer required for this purpose,

2. the test result will be automatically matched against the DNA profiles of trace material to establish whether the trace materials originate from them or from their relatives in the direct line or collaterally up to the third degree,

3. the result of the matching can be used to the detriment of the person concerned or a person related to him in the direct line or collaterally up to the third degree and

4. that the DNA profiles established shall not be stored by the Federal Criminal Police Office for the purposes of establishing identity in future criminal proceedings.

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Section 82

Form of opinion in preliminary investigation

In the preliminary investigation the judge shall decide whether the experts are to render their opinion in writing or orally.

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Section 83

Order for rendering of new opinion

(1) The judge may order that a new opinion be rendered by the same or by other experts if he considers the opinion insufficient.

(2) The judge may order that an opinion be rendered by another expert if the first expert was successfully challenged after rendering his opinion.

(3) In important cases, the opinion of a specialist authority may be obtained.

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Section 84

Compensation of experts

Experts shall be compensated pursuant to the Judicial Remuneration and Compensation Act.

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Section 85

Expert witnesses

The provisions concerning evidence by witnesses shall apply where experienced persons have to be examined to prove past facts or conditions the observation of which required special professional knowledge.

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Section 86

Judicial inspection

If a judicial inspection takes place, the facts as found shall be stated in the record and such record shall include information regarding any missing traces or signs whose presence could have been expected given the special nature of the case.

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Section 87

Post-mortem, autopsy, exhumation

(1) A post-mortem examination shall be carried out by a member of the public prosecution office, upon application by the public prosecution office also by the judge, with a physician being called in as an expert. The physician shall not be called in if this is evidently unnecessary for the clarification of the facts.

(2) An autopsy shall be performed by two physicians. One of them must be a court physician or the head of a public forensic or pathology institute or a physician of the institute entrusted with this task and having specialist knowledge of forensic medicine. The autopsy is not to be performed by the physician who treated the deceased person during the illness which directly preceded his death. However, that physician may be asked to attend the autopsy to give information relating to the deceased’s medical history. The public prosecution office may attend the autopsy. Upon application by the public prosecution office, the autopsy shall be carried out in the judge’s presence.

(3) For the purpose of examination or autopsy, it shall be admissible to exhume a corpse which has been interred.

(4) The autopsy and exhumation of an interred corpse shall be ordered by the judge; the public prosecution office shall be authorised to order such action if a delay would endanger the success of the investigation. Where exhumation is ordered, notification of a relative of the deceased person shall be ordered at the same time if the relative can be located without particular difficulty and such notification does not jeopardise the purpose of the investigation.

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Section 88

Identification of deceased before autopsy

(1) The identity of the deceased person shall be established before autopsy. In particular, persons who knew the deceased person may be questioned to this end and forensic identification measures taken. Cell tissue may be removed and subjected to a molecular and genetic analysis for the purpose of establishing identity and sex; section 81f (2) shall apply accordingly to the molecular and genetic analysis.

(2) If there is an accused, the corpse shall be shown to him for the purpose of identification.

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Section 89

Extent of autopsy

Insofar as the condition of the corpse permits it, the autopsy shall always include the opening of the head, the chest cavity and the abdomen.

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Section 90

Autopsy of newborn

If an autopsy is performed on a newborn child, the examination shall in particular be directed at answering the question of whether it was alive after or during birth and whether it was mature or at least capable of continuing its life outside the womb.

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Section 91

Examination of corpse upon suspicion of poisoning

(1) If poisoning is suspected, the suspicious substances found in the corpse or elsewhere shall be examined by a chemist or by a specialist authority appointed for such examination.

(2) An order may be made for this examination to be performed with the assistance or under the direction of a physician.

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Section 92

Opinions upon suspicion of counterfeiting of money or official stamps

(1) If counterfeiting of money or official stamps is suspected, the money or official stamps shall, if necessary, be submitted to the authority which issues genuine money or genuine official stamps of that kind. The opinion of this authority shall be obtained as to the falsity or falsification as well as concerning the probable method of counterfeiting.

(2) If money or official stamps of a foreign currency are involved, the opinion of a German authority may be sought in lieu of an opinion by the respective foreign authority.

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Section 93

Handwriting analysis

Experts may be called in to conduct a handwriting comparison to ascertain the authenticity or falsity of written papers as well as to ascertain their author.

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Chapter 8

Investigation measures

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Section 94

Securing and seizure of objects for evidentiary purposes

(1) Objects which may be of importance, as evidence, for the investigation shall be taken into custody or otherwise secured.

(2) Such objects shall be seized if they are in the custody of a person and are not surrendered voluntarily.

(3) Subsections (1) and (2) shall also apply to driving licences which are to be confiscated.

(4) The surrender of movable property shall be governed by sections 111n and 111o.

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Section 95

Obligation to surrender

(1) A person who has an object of the above-mentioned kind in his custody shall be obliged to produce it and to surrender it upon request.

(2) In the case of non-compliance, the administrative measures and means of compulsion set out in section 70 may be used against such person. This shall not apply to persons who are entitled to refuse to testify.

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Section 96

Papers in official custody

The submission or surrender of files or other papers which are in the official custody of authorities or public officials may not be requested if their highest service authority declares that publication of the content of such files or papers would be detrimental to the welfare of the Federation or of one of the Länder. Sentence 1 shall apply accordingly to files and other papers held in the custody of a Member of the Bundestag or of a Land parliament or of an employee of a federal or Land parliamentary group if the authority responsible for granting authorisation to give testimony has made the relevant declaration.

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Section 97

Prohibition of seizure

(1) The following objects shall not be subject to seizure:

1. written correspondence between the accused and the persons who, under section 52 or section 53 (1) sentence 1 nos. 1 to 3b may refuse to testify;

2. notes made by the persons referred to in section 53 (1) sentence 1 nos. 1 to 3b concerning confidential information confided to them by the accused or concerning other circumstances covered by the right of refusal to testify;

3. other objects, including the findings of medical examinations, which are covered by the right of the persons referred to in section 53 (1) sentence 1 nos. 1 to 3b to refuse to testify.

(2) These restrictions shall only apply if these objects are in the custody of a person entitled to refuse to testify, unless the object concerned is an electronic health card as defined in section 291a of the Fifth Book of the Social Code (Sozialgesetzbuch V). The restrictions on seizure shall not apply if certain facts give rise to the suspicion that the person entitled to refuse to testify participated in the offence or in handling stolen data, aiding after the fact, obstructing prosecution or punishment, or handling stolen goods, or if the objects concerned were derived from an offence or have been used or are intended for use in committing an offence or if they emanate from an offence.

(3) Subsections (1) and (2) shall apply accordingly insofar as those persons who are involved, pursuant to section 53a (1) sentence 1 in the professional activity of the persons referred to in section 53 (1) sentence 1 nos. 1 to 3b have the right to refuse to testify.

(4) The seizure of objects shall be inadmissible insofar as they are covered by the right of the persons referred to in section 53 (1) sentence 1 no. 4 to refuse to testify. This protection from seizure shall also extend to objects which have been entrusted by the persons referred to in section 53 (1) sentence 1 no. 4 to the persons involved in their professional activity pursuant to section 53a (1) sentence 1. Sentence 1 shall apply accordingly insofar as the persons who are involved, pursuant to section 53a (1) sentence 1 in the professional activity of those persons referred to in section 53 (1) sentence 1 no. 4 are entitled to refuse to testify.

(5) The seizure of papers, audio and video media, data carriers, images or other depictions in the custody of persons referred to in section 53 (1) sentence 1 no. 5 or of the editorial office, the publishing house, the printing works or the broadcasting company shall be inadmissible insofar as they are covered by the right of such persons to refuse to testify. Subsection (2) sentence 3 and section 160a (4) sentence 2 shall apply accordingly, the provision on participation in subsection (2) sentence 3, however, only where the particular facts give rise to a strong suspicion of participation; in these cases, too, seizure shall only be admissible, however, where it is not disproportionate to the importance of the case having regard to the basic rights arising out of Article 5 (1) sentence 2 of the Basic Law (Grundgesetz) and the investigation of the factual circumstances or the establishment of the whereabouts of the offender would otherwise offer no prospect of success or would be much more difficult.

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Section 98

Procedure for seizure

(1) Seizure may be ordered only by the court and, in exigent circumstances, by the public prosecution office and its investigators (section 152 of the Courts Constitution Act). Seizure pursuant to section 97 (5) sentence 2 on the premises of an editorial office, publishing house, printing works or broadcasting company may be ordered only by the court.

(2) An official who has seized an object without a court order is, as a rule, to apply for cou