Oath formula
The oath formula is the text to be repeated for an oath or to be confirmed with the words "I swear it" (possibly with religious affirmation).
Germany
Witnesses (and parties) in criminal or civil proceedings
The swearing in of a witness in the criminal trial , the presiding judge directed according to § 64 Code of Criminal Procedure to the witness's words
"You swear (by God Almighty and All-Knowing) that to the best of your knowledge you have told the pure truth and have concealed nothing."
To which the witness replies: "I swear (so help me God)". Whether the oath is taken with or without religious affirmation is left to the choice of the witness.
The same formula applies in accordance with §§ 392, 481 ZPO for the swearing-in of witnesses and in accordance with §§ 452, 481 ZPO for the swearing-in of parties to the proceedings (plaintiff or defendant) in civil proceedings.
- Affirmation on oath
A witness who states that he does not want to take an oath for reasons of faith or conscience has to confirm the truth of his testimony according to § 65 StPO (criminal procedure) or § 484 ZPO (civil procedure). The presiding judge addresses the witnesses
"Aware of your responsibility in court, you affirm that you told the truth to the best of your knowledge and did not conceal anything."
The witness simply replies with “Yes”. Legally, the affirmation has the same consequences as the oath.
By speaking the oath starts at Falscheiden - either before the criminal or the civil court - the trial of perjury .
Honorary judges
Honorary judges - regardless of jurisdiction - are sworn in by the chairman (judge) before their first service in a public session, using the following formula:
"I swear to fulfill the duties of an honorary judge true to the Basic Law for 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 words “so help me God” can be omitted ( Section 45 , Paragraph 3 DRiG ).
Federal President, Members of the Federal Government
The oath formula of the German Federal President , Federal Chancellor and the Federal Minister according to Art. 56 (and Art. 64) GG reads:
“I swear that I will devote my energies to the well-being of the German people, increase their benefit, prevent damage from them, uphold and defend the Basic Law and the laws of the Federation, conscientiously fulfill my duties and do justice to everyone. So help me God. "
The religious affirmation can be waived.
The oath is taken in front of the assembled members of the Bundestag (and in the case of the Federal President also in front of the members of the Bundesrat ).
Officer
Officials also have to take an oath of service. The wording differs between federal and state officials and, in the case of the latter, again from country to country. The oath formula for federal civil servants is according to § 64 BBG (optionally with or without religious affirmation):
"I swear to uphold the Basic Law and all laws applicable in the Federal Republic of Germany and to conscientiously fulfill my official duties (so help me God)."
If the official refuses to swear for reasons of faith or conscience, the words “I swear” can be replaced by “I vow” or another form of affirmation.
State officials of the state of North Rhine-Westphalia, for example, take the following oath (in accordance with Section 46 of the State Officials Act of North Rhine-Westphalia ):
“I swear that I will administer the office entrusted to me to the best of my knowledge and ability, obey and defend the constitution and laws, conscientiously carry out my duties and do justice to everyone. (So help me God.) "
Here, too, if the oath is rejected for reasons of faith or conscience, the words “I swear” can be replaced by “I pledge” or another form of affirmation.
Bundeswehr soldiers are in a quasi-civil servant-like relationship. Depending on their status, they are sworn in (temporary soldiers / professional soldiers) or take a vow (basic military service / voluntary military service).
Austria
Witnesses in court
According to the law of May 3, 1868, which is still in force today , regulating the procedure for taking oaths in court , the formula for witnesses in civil and criminal proceedings, regardless of their religious affiliation, is:
“I swear a pure oath by God Almighty and All-Knowing that I have testified (will testify) the pure and full truth and nothing but the truth about everything that I have been asked by the court; so help me God! "
Before taking the oath, the judge has to remind the sworn person "of the sanctity of the oath from a religious point of view, of the importance of the oath for the legal system, of the temporal and eternal penalties of perjury".
According to this regulation, Christians take the oath in front of a crucifix and two burning candles. In many courtrooms, so-called oath sets - consisting of a cross and two candles - are kept ready. In addition, the witness must raise the first three fingers of the right hand when taking the oath. There has been an exception for members of the Helvetic denomination since 1832: they are sworn in without a crucifix and candles.
Jews (Israelites) have to cover their head when taking the oath and place their right hand on the Torah , 2nd Book of Moses , chapter 20, verse 7 ( 2 Mos 20,7 EU ). Special rules also apply to “people who, because of their religious doctrine, consider the taking of the oath to be illegal” (such as Mennonites and other Anabaptists ) and Muslims (“Mahomedans”). The Supreme Court ruled in 1931 that the rule may not be applied to non-religious persons.
In practice, however, the swearing-in of witnesses and parties in civil proceedings is extremely rare. In 2008 it was completely abolished in criminal proceedings.
- criticism
In the 21st century this regulation is controversial due to its strong religious and denominational character. Critics - including representatives of the judiciary - consider them to be out of date or even contrary to fundamental rights. It is not compatible with the state's neutrality requirement. In particular, remembering "eternal punishments" is a completely foreign body in the legal system. In March 2017, the MPs Nikolaus Scherak and Niko Alm from NEOS introduced the draft of an Oath Harmonization Act to the National Council, according to which the swearing-in of lay judges, witnesses, experts and parties to the proceedings is to be replaced by a swearing-in that is independent of denomination and would be free from religious references. In July 2018, the MP Wolfgang Zinggl from the Peter Pilz list introduced an amendment to the National Council, through which the law of 1868 is to be repealed.
Experts and interpreters
According to Section 5 (1) of the Expert and Interpreter Act (SDG), the formula for sworn and court-certified experts is:
"I swear a pure oath to God Almighty and All-Knowing that I will carefully examine the objects of an inspection, faithfully and completely state the findings and my expert opinion to the best of my knowledge and belief and according to the rules of science (art, of the trade); so help me God! "
Generally sworn and court-certified interpreters take the following oath in accordance with Section 14 No. 3 SDG:
“I swear a pure oath to God Almighty and All-Knowing that I will always interpret and translate from the ... language into German and from German into the ... language to the best of my knowledge and belief; so help me God! "
At the request of the applicant, the invocation of God must be omitted.
Lay judge
Lay judges take their oath in accordance with Section 240a of the Code of Criminal Procedure by standing up from their seats and the chairman (judge) speaking to them:
“You swear and vow before God that the evidence that is brought up against and for the accused will be examined with the most conscientious attention, not to leave anything unaddressed that may be to the advantage or to the disadvantage of the accused, the law to which you apply to ensure that you observe faithfully, that you do not consult with anyone except the members of the jury before you say something about the subject of the hearing, that you do not listen to the voice of approval or dislike, fear or malicious pleasure, but rather yourself To decide impartiality and firmness only according to the evidence presented for and against the accused and your conviction based on it, as you can answer for it before God and your conscience. "
According to § 305 StPO, a largely identical form of oath applies to juries, with the difference that "except with the members of the jury" is replaced by "except with the members of the jury and their co-jurors".
Each lay judge or jury responds individually: “I swear, so help me God.” The swearing of lay judges and jury does not have to be carried out anew for each trial, but is valid for a calendar year. Jury members or jurors who do not belong to any religious denomination or whose denomination prohibits the taking of the oath do not need to swear: They are bound by a handshake.
Swearing in
The Federal President, members of the government, members of parliament, civil servants and soldiers are not sworn in on taking office in Austria, but are sworn in. According to Art. 62 of the Federal Constitutional Law , the formula to be spoken by the Federal President when he swears in before Parliament is, for example :
"I pledge that I will faithfully observe the constitution and all laws of the republic and will fulfill my duty to the best of my knowledge and belief."
Article 62 paragraph 2 allows the Federal President to add a religious affirmation.
See also
Web links
- Legal information system of the Federal Chancellery of the Republic of Austria
Individual evidence
- ↑ JGS No. 2582/1832 Article 1
- ^ Inge Gampl: Austrian State Church Law. Springer-Verlag, Vienna / New York 1971, p. 118.
- ^ A b Karl Krückl: Hell - Part of the legal system for 150 years. In: Die Presse (online), June 10, 2018.
- ↑ Katharina Mittelstaedt: Judges consider religious formulas to be in breach of fundamental rights. In: derStandard.at , March 17, 2017.
- ↑ Judges demand law for neutral official clothing ORF.at, March 19, 2017.
- ^ National Council, 2064 / A XXV. GP - initiative request
- ^ National Council, XXVI. GP, session 34/1 , July 4, 2018.
- ↑ full text
