Federal Court of Justice (BGH), Decision as of 1/11/2005
File number 1 StR 498/04

Key issues

Victim protection in criminal proceedings regarding rape; protection of a witness’s human dignity when being questioned about private life and sexual practices and when being examined by experts.


The highest appellate court (BGH) dismissed the appeal of the accused against the court of first instance’s conviction of him for rape, and emphasized, with reference to the German Act Reforming Victims’ Rights (OpferRRG) of 2004, that during the entire criminal proceedings the human dignity of the witnesses is to be protected despite the existence of the duty to investigate the truth. The court held that this was to be especially adhered to when evidence (questioning and expert examinations) was being taken on a person’s private life and sexual practices. The German act reforming the rights of victims is based on the European Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings.

The accused had raped the lesbian co-prosecutor in her apartment in 2001. In the criminal trial, he tried to depict this as mutually consented to sexual intercourse and claimed that he had had a relationship with the woman. The court found that this had been refuted on the basis of a variety of circumstantial evidence.

In closing, the BGH pointed out that even though the first instance trial court had had to scrupulously examine the co-prosecutor in this case, on account of the significance of her testimony, the human dignity of a witness still has to be protected. The court referred in this regard to the European Council Framework Decision of 2001 and the German Victims’ Rights Reform Act (OpferRRG).

Accordingly, discussions and the taking of evidence that are not directly associated with the offence are only permissible if they cannot be dispensed with. This applies, during the entire criminal proceedings, to the scope of the evidence taken and, particularly in this case, to examinations by experts and to the admission of questions before the court.

It is against this background that the BGH critically reviewed the expert examinations ordered by the court of first instance for determining, among other things, the credibility of the co-prosecutor. These included the taking of extensive evidence regarding the co-prosecutor’s private life and sexual practices, although this would not have had any impact on the court’s decision. The court was also of the opinion that expert psychological opinions are only required if there are actual indications of psychological illness or deficiencies that could affect a person’s capacity to testify. The expert must be given the requisite guidelines to ensure that he/she avoids discussions that, even though they are irrelevant to the court’s decision, are injurious to the witness’s dignity.

Decision in full text:

BGH_11_01_2005 (PDF, 40 KB, not barrier-free, in German)

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