What's stopping me from being under oath?

396 / AB





Members of the National Council Mag. Terezija Stoisits, friends

have sent me a written request regarding the swearing-in of witnesses, judicial

and asked the following questions:


"1. Do you consider the legal possibility of swearing in witnesses to be necessary?


2. Keep it contemporary in a secular constitutional state, witnesses

To swear to '' God Almighty ''?


3. In your opinion, is the (possible) compulsion to take a religious egg

des compatible with freedom of belief and conscience, according to which no one is allowed to

may be forced into a religious act?


4. Stick to the basic principles of a democratic constitutional state

compatible that the religious oath threatens God's punishment?


5. If you answered '' no '' to any of questions 1 to 5, you intend

You a repeal or reform of the oath law?

a) If so, when and in what form should the law of oath be reformed or

To get picked up?

b) If not, you want the 1868 oath law at the beginning as well

of the third millennium is used in Austria?


6. If you answered '' yes '' to one of the questions 1 to 5, please give reasons

please answer (s).


7. Are there studies and statistics on how often and in what form associations

testimony of witnesses?

a) If so, please provide the results of the investigation.

b) If not, it would not make sense to order such an examination-

nen? ''



I answer these questions as follows:


For 1 to 6:

Without a doubt, not only the content, but also the practical

taking the judicial oath since the oath law of 1868 came into force

greatly changed. In particular, when taking an oath is hardly any more today

felt its sacred character; rather, the oath (not least also

through the possibility of replacing it with a handshake)

to a purely procedural evidence, which by the judicial criminal offense

status of Section 288, Paragraph 2 of the Criminal Code is '' secured ''. The oath taken in a lawsuit

is thus a kind of truth seal with which a statement of evidence or a party

statement is reinforced and should gain weight as a result, especially since this is too

Remaining penalty significantly increased compared to a '' simple '' false statement



With regard to the application of the oath law in Austria, it should be noted that

that the swearing-in of witnesses in criminal proceedings with the criminal process adjustment

law of 1974 became an exception (Section 247, Paragraph 2 of the Code of Criminal Procedure). The then President

of the Commercial Court of Vienna and later President of the Higher Regional Court Dr. Felix Sin-

As a well-known representative of the practice, zinger already had in 1973

stated in an article in the Austrian legal journal that in the

For the last few decades the appellate courts have hardly dealt with the question of taking an oath

were brought before the court, which he said on the changes in the religious

the following practice of the courts - a practice linked to the oath

use them sparingly and do not force anyone to use words and forms when taking the oath.

to use opportunities that correspond to his religious or ideological

contradict: the oath formula of the oath is fundamentally

law and the formalities provided therein; when the

Those who swore against it, however, dropped the invocation of God and the oath

in front of the cross and candles or on the Torah; with non-believers one is content with

a handshake and the formula: '' I swear a pure oath that ... ''.

Probably also in view of this widely changed practice, the has changed over the years

1974 to 1983 working group for fundamental issues in the Federal Ministry of Justice

a renewal of the law of criminal procedure in this sense for an abolition

function of the sworn as such.


With a possible abolition of the oath, however, the question would be whether it

judicial proceedings (still) under certain conditions a form of

solemn confirmation of statements - and an associated increased criminal

threat for false statements made under such circumstances - should give, yet

not answered.


A look beyond the limits to the question of a particular affirmation of a statement

shows that, for example, in Germany witnesses in principle (with or without religious

positive affirmation) or take an affirmation equivalent to an oath

must, provided that a swearing-in is not inadmissible or is waived.

A false statement made under oath or affirmation of the truth is also after

threatened with a higher penalty under the German Criminal Code than an unofficial

cal statement. Also in the proceedings before the European Court of Justice for

human rights is a swearing-in or solemn declaration before any testimony



With regard to legal developments in Austria, I would also like to point out that

in 1991 the oath of disclosure in execution proceedings and insolvency proceedings

through a list of assets to be signed without an affidavit

was replaced. Submitting an incorrect list of assets is then

still punishable by a court of law (Section 292a StGB), but is subject to a considerably low

ren penalty threat.


The Federal Ministry of Justice will raise the question of reforming the law of oath

taking into account the points of view shown in the gradual renewal

Include civil and criminal procedural regulations.


To 7:

Statistics on the swearing-in of witnesses are not available. The implementation of a

In view of the disproportion between the

Workload - even in the case of a `` random '' examination, each

Because in particular the interrogation and negotiation protocols in several

a hundred court files can be looked through - and the informative value of such

Statistics not appropriate.


How many people according to the increased penalty rate of Section 288 (2) StGB (false statement

say under oath) is not included in the judicial crime statistics

instructed; these are published annually by the Austrian Central Statistical Office.

The statistics given only contain the total number of convictions for false claims

statement (ยง 288).