(In)accessibility of witnesses abroad and violation of the right to be heard

In a ruling dated 21.12.2023, the Federal Court of Justice stated that strict requirements must be applied to the assumption that a witness is unavailable and that a court must generally do everything possible to hear a witness who is resident abroad. If there is a mutual legal assistance treaty with the country in which the witness is located, an attempt must be made to obtain a hearing by means of mutual legal assistance, possibly by video conference. The court must also justify its assumption that the testimony of a witness is only of probative value if it can hear the witness itself. If it fails to do so, the right to be heard of the party who relied on the witness is violated.

The reason for this decision (III ZR 21/23) is proceedings for damages in connection with a failed capital investment. The plaintiff had invested in a fund company in the form of a GmbH with a mezzanine loan with a term of three years, which in turn was to invest in a project company abroad that was to build and commission hydropower plants. The fund company was to sell its stake in the project company to an investor at a profit by the time the subordinated loans expired. The initiator of the fund was later sentenced to imprisonment for the misuse of funds (ten counts of breach of trust) with regard to a predecessor fund, among other things. The money raised for the fund in question was also misappropriated and the criminal proceedings against the initiator were discontinued due to other convictions (Section 154 of the German Code of Criminal Procedure). The initiator currently lives in Turkey. The plaintiff demanded compensation from the managing director of Fonds-GmbH, as he had known that the initiator had never wanted to invest the money and that the advertised control of the use of funds had never existed. The Court of Appeal issued an order for evidence and summoned the initiator as a witness, who informed the judge in two telephone calls that he did not want to travel to Germany for the hearing and was also not prepared to give evidence. As a result, the court, which considered a claim for damages in tort to be possible, deemed the witness to be unavailable and the plaintiff investor's appeal was unsuccessful.

The Federal Court of Justice (BGH) overturned the decision and referred the case back for further proceedings. The Court of Appeal had violated the plaintiff's right to be heard by prematurely considering the witness to be unavailable, i.e. by not taking into account a significant offer of evidence. The court with a duty to clarify may only reject a request for evidence due to the unavailability of a witness if it has tried everything in relation to the importance of the witness's testimony to produce the witness and there is nevertheless no prospect of producing the evidence in the foreseeable future.

It is true that the appearance of a witness resident abroad before a German court cannot be enforced. However, the Higher Regional Court had to attempt to have the witness examined in Turkey by way of legal assistance. If the witness is not willing to testify in Germany, he is not yet unreachable. According to Section 363 of the German Code of Civil Procedure (ZPO), a hearing abroad is possible, which is why unavailability can only be considered if only the hearing before the trial court can contribute to the decision. The court must give conclusive reasons for this. A general reference to the fact that the court needs a personal impression of the witness in order to convince itself of their credibility is not sufficient in the opinion of the Federal Court of Justice; rather, this would be tantamount to an inadmissible anticipation of the assessment of evidence.

Even if the court considers a personal impression to be indispensable, a hearing abroad by video transmission (sections 128a, 284 sentence 2 ZPO) must be considered. No corresponding application by the witness is required for the hearing to be ordered by video and audio transmission.

Furthermore, the Federal Court of Justice points out that according to Art. 9 para. 2 of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Convention), special forms of taking evidence such as video transmissions are also possible; these are only excluded if the law of the requested country excludes such forms of taking evidence. According to its procedural law, the foreign court could even allow the German judge to ask the party or witness questions himself.

The fact that the witness had stated on the telephone that he did not wish to testify in these proceedings did not preclude the taking of evidence. This is because it cannot be ruled out in advance that the witness will not comply with a request from the Turkish authorities to testify before a local court. Furthermore, coercive measures against the witness could be considered under the law of the requested state (Art. 10 Hague Convention).

Finally, a possible right to refuse to give evidence does not prevent an attempt to take evidence abroad from the outset. In this case, it was not yet clear whether a right to refuse to give evidence existed and whether the witness would invoke it. The Court of Appeal had not established whether any criminal offenses in the discontinued criminal proceedings were time-barred and whether a right to refuse to testify could exist under Turkish law.

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