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In its current form, Section 52(1) of the German Code of Criminal Procedure does not grant many relatives in modern family forms the right to refuse testimony. Annina Eckrich examines whether this exclusion remains appropriate and how the provision should be adapted to reflect contemporary family realities.
An analysis of the applicable legal framework and the protective purposes of Section 52(1) StPO shows that relatives in modern family forms are insufficiently protected. In conjunction with the fundamental rights that give rise to the state's protective obligations, existing protection gaps become apparent. The level of protection required by Article 6(1) of the Basic Law cannot be achieved through traditional methods of interpretation or through incremental judicial development of the law. To ensure comprehensive constitutional protection of the family, Section 52(1) StPO must therefore be interpreted in conformity with the constitution. The author conducts a thorough examination of whether the testimonial obligation of relatives is compatible with the Basic Law, the European Convention on Human Rights, and EU law. She concludes that the current version of Section 52(1) StPO, in conjunction with Section 48(1) sentence 2 StPO, partially violates Article 6(1) of the Basic Law-in its function both as a defensive right and as a specific equality guarantee. The functionality of the criminal justice system may be considered a potential justification. However, a more detailed engagement with this concept shows that it does not suffice to justify the resulting interferences in all cases.