Can we know certain truths without evidence
Oath in court - The affirmation of a testimony
Both in the Criminal trial as well as in Civil litigation there are various pieces of evidence. In addition to the expert or documentary evidence, both the Code of Civil Procedure (ZPO for short) as well as the Code of Criminal Procedure (StPO for short) sometimes the witness evidence.
This is a very common one Evidence, but at the same time a comparatively insecure one. Witnesses keep getting entangled in Inconsistencies or because of personal relationships with those involved in the process, they are prevented from making truthful statements.
Around False statements To avoid and to confirm the statements, judges often let the witnesses testify under oath. Also expert and Court interpreter can be sworn in. It can also be used in civil proceedings as part of the Approval to fall back on the oath.
But what does the term “oath” actually mean? When is an oath required? Where is he legally regulated and what are the consequences of making false statements under oath? And what about the oath of Lawyers and Judges on yourself?
Hereinafter counselor we got to the bottom of these and a few other questions about the subject of "oath" for you.
Here you can find out what is meant by a testimony under oath in court.
You can read about the conditions under which a witness is sworn in in court here.
For a false testimony under oath, according to criminal law, there is a risk of imprisonment for no less than one year.
Oath: definition of the term
An oath is that formal insurance about the fact that a certain statement is actually also the truth corresponds to.
An oath is therefore used to personally confirm a statement. Who one Testimony under oath is committed to the truth and at the same time to carry the Consequences the oath statement.
Since the StPO reform however, as a rule, witnesses remain not sworn. Since then, witnesses only have to testify under oath if it is the court's decision because of the decisive importance of the testimony or to bring about a true testimony discretion considers necessary.
The oath is regulated by law Criminal procedural law in § 64 StPO, in Civil procedural law in § 481 ZPO. A distinction is made between an oath with and without religious affirmation.
If an oath is taken with religious affirmation, this is done as follows: The judge uses the words
You swear by God Almighty and All-Knowing that to the best of your knowledge you have told the pure truth and have not concealed anything.
The witness answers me to the words:
I swear so help me God.
At a Taking an oath without a religious affirmation the oath is taken in such a way that the judge uses the words
You swear that to the best of your knowledge you were telling the pure truth and not hiding anything.
directs. The witness then speaks the words:
If a witness indicates that he is a member of a Religious- or Confessional community wants to use a form of protest from this religious community, so it is for him allowedto attach these to the oath.
Oaths by the hearing or speech impaired
The law sees a special feature for the taking of the oath hearing or speech impaired people in front.
According to Section 66 (1) StPO, such a person takes the oath according to their own free choice either
- by means of Replication the formula of the oath,
- by means of Copying,
- by the Sign the formula of the oath or else
- With Help a person who enables communication in court and that of the court to consult is.
In any case, the person concerned is on it to point outthat she has a right to vote in this regard. The court is also obliged to do the necessary technical aids to be provided that are necessary for the hearing or speech impaired person to be able to take the oath.
Requirements for a swearing-in
The prerequisite for being sworn in is always Oath or. Oath of consent one person. A so-called swearing-in ban applies to the following persons within the meaning of Section 60 StPO:
- For people who 18th year of life have not yet completed;
- For people who because of lack of intellectual maturity, one mental illness or spiritual or spiritual disability do not have a sufficient idea of the nature and meaning of an oath.
- For persons involved in the act or participation in the act which is the subject of the respective investigation, suspicious or already sentenced are;
- For persons involved in data stealing, favoring, preventing punishment or receiving stolen goodssuspicious are or therefore already sentenced were.
That witnesses who are themselves suspicious of a crime cannot be sworn in is a result of the Principlethat up in court nobody has to burden themselves. If such persons were to take an oath, this principle would be void.
For some people it exists, just like it Rights to refuse to testify gives the right to refuse an oath. This applies in particular to relative and Relatives of an accused. The court must always inform the person concerned about the possibility of refusing an oath.
That is legally standardized Law to Denial of oath in § 61 StPO. According to this, the following persons are entitled to refuse an oath:
- the / the Fiancée the accused or the person with whom the accused has made a promise to establish a civil partnership;
- the Spouse the accused (this applies even if the marriage no longer exists);
- the Life partner of the accused (even if the civil partnership no longer exists);
- People who are in a straight line with the accused related or related by marriage are;
- People in the Sideline until third Degree with the accused related are;
- People in the Sideline until second Degree with the accused related by marriage are.
Oath and oath
When swearing in, a distinction is made between so-called Prejudice and After-oaths. In the case of an oath, the oath is taken before a testimony; in the case of an oath, it is taken after it.
When witnesses are sworn in during criminal proceedings, this is always provided in the form of an oath.
Before the testimony of a witness or expert, the judge must always have the possibility an oath teach.
Anyone who takes an oath must always expect the consequences that come with it. Witnesses who, despite the taking of an oath, do not die truth says that make up like this punishable:
If witnesses or experts or, in civil proceedings, parties to the trial are under oath and still make a false statement, they may have to answer Perjury be responsible. In criminal law, the offense of perjury is regulated in Section 154 of the Criminal Code (short: StGB). He represents a qualified form of false improper testimony represent.
So a cumulative False statement are made and that in turn under oath.
The Penalty limits of § 154 StGB is comparatively high. Those who make a false statement under oath are then threatened with one Imprisonment not less than a year. The offense is therefore as crimedesigned and thus by no means as a Trivial offense to dismiss.
A statement under oath is then to be qualified as false if it objectively untrue is. Everything that does not agree with the objective state of affairs is therefore as not correct to evaluate.
According to § 155 StGB, the oath replaces the oath Affirmations as well as referring to an earlier or earlier confirmation.
The one replacing the oath affirmation on oath is legally standardized in Section 65 of the Code of Criminal Procedure.
After that, a witness who claims has made Belief- or Conscience not wanting to take an oath to confirm the truth of his statement. This affirmation is equivalent to the oath, which the witness must be informed of beforehand.
Since the Offense perjury is a crime, it is also punishable in attempt. This results from 23 paragraph 1 StGB. The norm says that a crime is always imminent attempt is punishable.
A defendant himself can im Criminal trial not perjury. This is due to the fact that it is generally inadmissible to allow a defendant to take an oath. Unlike a witness, a Defendant lie even in criminal proceedings. Nobody has to actively participate in their own condemnation. If the accused had to take an oath, it would run procedural principle empty.
Regarding the question of when to take perjury accomplished is to be differentiated according to the above-mentioned forms of the oath. With the oath in the form of the Advocacy is the offense of perjury with Completion of the statement made accomplished.
Should criminal proceedings be pending against you for perjury or you are threatened with one legal assistance absolutely necessary. Suspicion of a crimeas is the case with perjury, always means a case of the so-called necessary defense within the meaning of § 140 StPO. Legal representation is one of these Procedural situation always necessary.
A criminal law attorney is the right address for you in such a situation. Such a person knows criminal and criminal procedural matters Regulations and can assist you with words and deeds.
Oath of lawyers and civil servants
From the oath within the meaning of § 153 StGB is the oath of the lawyers as well as the Oath of office in civil service law to distinguish. The following section examines the oath in this context.
Also a Lawyer must take an oath. Who before the Bar Association applies for admission to the bar, in accordance with Section 12a of the Federal Lawyers' Act (short: BRAO) also take an oath.
The oath formula for lawyers is:
I swear by God Almighty and All-Knowing to uphold the constitutional order and to conscientiously fulfill the duties of a lawyer, so help me God.
Here, too, there are options, with or without the oath religious affirmation to discard.
Unless the person concerned is out Belief- or off Conscience If he does not want to take an oath, he must instead make the following pledge:
I pledge to uphold the constitutional order and to conscientiously fulfill the duties of a lawyer.
This follows from Section 12a (4) of the BRAO.
The oath of the prospective lawyer is then in a protocol which must contain the exact wording. Both the lawyer and a member the Bar Association have to sign the protocol. The protocol for Personnel fileof the lawyer.
Here, however, the oath is not a prerequisite for the takeover of Office to understand, but merely a consequence of the office, which dogmatically represents something else. The oath is not the establishment of the office, but rather has declaratory character. Outwardly it expresses the acceptance of the respective new task.
The break of one Oath of office is not as perjury to punish.
The judge's oath
The Judge's oath is in § 38 paragraph 1 of German Judges Act (DRiG for short).
After that, a judge must take the following oath:
I swear to exercise the judicial office in accordance with the Basic Law for the Federal Republic of Germany and in accordance with the law, to judge to the best of my knowledge and belief without regard to the person and to only serve truth and justice, so help me God.
Also honorary judges must take an oath before their first job. This follows from Section 45 (3) DRiG. After that, you are required to speak the following formula of the oath:
I swear to fulfill the duties of an honorary judge, true to the Basic Law of the Federal Republic of Germany and true to the law, to judge to the best of my knowledge and belief without regard to the person and to only serve truth and justice, so help me God.
The addition “so help me God” can also be added waived become. The Swearing is about it before Oath to teach.
The Waiver on the religious affirmation of the respective formulas of the oath is an outflow of the in Germany applicable Religious freedom. Nobody should take a religious affirmation forced become.(40 Ratings, average: 4,40 of 5)
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