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False testimony: duty to tell the truth, penalty and statement necessity (Section 288 StGB)

False testimony under Section 288 StGB: duty of witnesses and experts to tell the truth, the increased penalty under oath and statement necessity under Section 290 StGB.

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26 June 2026 · Mag. Christopher Angerer, Rechtsanwalt

Anyone who makes a statement in proceedings is often under pressure. A false statement as a witness or a false expert opinion as an expert can be punishable under Section 288 StGB, and not only before a court but also in investigative proceedings. It becomes particularly delicate when a truthful statement would worsen one’s own situation.

This post explains from a legal perspective what the elements of false testimony require, what penalties apply, before which authorities Section 288 StGB applies and what significance statement necessity under Section 290 StGB has. This is general information, not advice in an individual case.

Which situation applies to you?

Four situations, one clear next step.

Whether a statement is punishable depends on the authority before which it is made, the role in which it is made and whether it was given under oath. Choose your situation and you will receive the key points and the next concrete step.

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01 Question 1

What does your case involve?

Whether a statement is punishable depends on the authority before which it is made, the role in which it is made and whether it was given under oath. Choose your situation and you will receive the key points and the next concrete step.

All paths at a glance

Overview of all answers.

01

Summoned witness with risk of self-incrimination: examine the right to refuse and statement necessity.

Anyone summoned as a witness is in principle subject to the duty to tell the truth. If a truthful statement would expose you or a relative to the risk of criminal prosecution, a right to refuse to give evidence comes into consideration. Section 290 StGB also provides a ground excluding punishment for statement necessity.

From a legal perspective it should be clarified before the examination whether a right to refuse exists and how to handle it. A false statement is never the right way; silence or refusal are the legally safe alternatives.

In depth: statement necessity under Section 290 StGB →
02

Accusation of false testimony: role, authority and oath are decisive.

The accusation under Section 288 StGB requires a false statement in a particular role and before a particular authority. The basic penalty of para 1 reaches up to three years of imprisonment. If the statement was given under oath or confirmed by oath, para 2 raises the penalty range to six months to five years.

From a legal perspective it must be examined precisely whether the statement was actually false, in which role and before which authority it was made. Do not make any statement on the substance before you have inspected the file and taken advice.

In depth: the elements of Section 288 StGB →
03

Expert: a false report or false opinion can fall under Section 288 StGB.

Section 288 StGB covers not only witnesses but also experts who provide a false report or a false expert opinion. Here too the basic penalty of para 1 of up to three years applies and, where an oath is administered, the increased penalty of para 2.

From a legal perspective the distinction between a defensible professional assessment and a deliberately false presentation is central. The bases of the opinion and of the gathering of findings should be documented carefully.

In depth: the elements of Section 288 StGB →
04

Statement in investigative proceedings: Section 288 para 4 StGB covers witnesses and experts.

Under Section 288 para 4 StGB it is also punishable to give false testimony as a witness or expert in investigative proceedings under the Code of Criminal Procedure before the criminal police, the prosecution or the European Public Prosecutor. The scope is therefore not limited to the main hearing.

From a legal perspective it matters in which role you were examined. The duty to tell the truth under Section 288 StGB does not apply to accused persons; they may defend themselves and remain silent. The classification of the role should be clarified before any statement.

In depth: before which authorities Section 288 applies →

The elements of false testimony under Section 288 para 1 StGB

Section 288 StGB protects the administration of justice against incorrect statements in formal proceedings.

Persons covered. It is punishable to make a false statement on the substance as a witness or information provider during one’s formal examination, or to provide a false report or a false expert opinion as an expert.

Penalty. The basic penalty of Section 288 para 1 StGB reaches up to three years of imprisonment.

Falsity of the statement. It is required that the statement is objectively incorrect and relates to a circumstance relevant to the proceedings. From a legal perspective the precise examination of these requirements is decisive.

A statement under oath under Section 288 para 2 StGB

A false statement given under oath is treated more strictly.

Increased penalty. Anyone who gives the false testimony under oath or confirms it by oath is liable under Section 288 para 2 StGB to imprisonment of six months to five years.

Background. The oath is intended to secure the reliability of the statement in a particular way. If it is broken, the wrong weighs more heavily, which is reflected in the higher penalty range.

From a legal perspective it must therefore be clarified whether and in what form an oath was administered, because this significantly changes the penalty range.

Before which authorities Section 288 StGB applies

The scope of Section 288 StGB is wider than many assume.

Investigation committee and disciplinary authority. Under Section 288 para 3 StGB criminal liability also extends to false statements before parliamentary investigation committees and before disciplinary authorities of the federation, the states and the municipalities.

Investigative proceedings. Under Section 288 para 4 StGB it is also punishable to give false testimony as a witness or expert in investigative proceedings under the Code of Criminal Procedure before the criminal police, the prosecution or the European Public Prosecutor.

Accused persons. No duty to tell the truth within the meaning of Section 288 StGB applies to accused persons. They may defend themselves and remain silent. From a legal perspective the clarification of the role before any statement is therefore central.

Statement necessity under Section 290 StGB

Not every false statement leads to punishment.

Ground excluding punishment. Section 290 StGB provides a special ground excluding punishment for statement necessity. It applies where the offender committed the act in order to avert from themselves or a relative the risk of criminal prosecution or another serious detriment.

Limits. The ground excluding punishment has limits and does not relieve a person of the duty to behave correctly. Instead of a false statement, silence and refusal to give evidence are available.

From a legal perspective the question of statement necessity should be clarified before an examination, so that the legally safe alternative can be chosen.

Right to refuse to give evidence and duty to tell the truth

Anyone summoned as a witness has rights that must be clarified before the statement.

Duty to tell the truth. Witnesses are in principle obliged to give a truthful statement. This duty is the basis of criminal liability under Section 288 StGB.

Right to refuse. If a truthful statement would expose you or a relative to the risk of criminal prosecution, a right to refuse to give evidence comes into consideration. It should be exercised before an untrue statement is contemplated.

From a legal perspective the timely clarification of the right to refuse is the safest way to avoid criminal liability.

The most common mistakes in connection with a statement. Assuming that a small untruth will have no consequences. Failing to clarify your own role as witness or accused person. Overlooking the right to refuse to give evidence and instead choosing an untrue statement. In all cases the rule is: have the role, the duty to tell the truth and the right to refuse clarified before the examination.

Frequently asked questions

What you need to know about false testimony.

Who can be criminally liable under Section 288 StGB? +

It is punishable to make a false statement on the substance as a witness or information provider during a formal examination, or to provide a false report or a false expert opinion as an expert. This duty to tell the truth does not apply to accused persons; they may defend themselves and remain silent.

What penalty is faced for false testimony? +

The basic penalty of Section 288 para 1 StGB reaches up to three years of imprisonment. If the statement was given under oath or confirmed by oath, Section 288 para 2 StGB raises the penalty range to six months to five years.

Does Section 288 StGB also apply to a statement to the police? +

Yes. Under Section 288 para 4 StGB it is also punishable to give false testimony as a witness or expert in investigative proceedings under the Code of Criminal Procedure before the criminal police, the prosecution or the European Public Prosecutor. The scope is not limited to the main hearing.

What is statement necessity under Section 290 StGB? +

Section 290 StGB provides a special ground excluding punishment where the false statement was made in order to avert from oneself or a relative the risk of criminal prosecution or another serious detriment. Instead of a false statement, however, silence and refusal to give evidence are available.

What can I do if a truthful statement would incriminate me? +

In this case a right to refuse to give evidence comes into consideration, which you should exercise before making an untrue statement. From a legal perspective it makes sense to have the right to refuse and a possible statement necessity clarified before the examination.

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Topics
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