Concept and Definition of the Oath Emergency
The oath emergency, under German law, refers to an exceptional state of necessity in which a person is compelled to take an oath against their better knowledge in order to protect themselves or a close relative from significant danger to life, limb, liberty, or essential property interests. The oath emergency is regulated in the Criminal Code (§ 157 StGB) and constitutes a specific legal justification or excuse for giving false testimony under oath.
Historical Development of the Oath Emergency
The notion that individuals in extreme situations should not be punished if they violate the law under the pressure of severe disadvantage has long been recognized in German law. The regulation regarding the oath emergency was introduced to balance the significance of the oath in legal proceedings with the protection of fundamental individual rights.
Statutory Regulation of the Oath Emergency
The oath emergency is expressly regulated in the Criminal Code. The statutory basis is § 157 StGB:
“Whoever, to whom taking an oath is required under §§ 154 to 156, swears falsely in order to save themselves or a relative from an otherwise unavoidable, significant, and immediate danger to life, limb, liberty, or property, shall not be punished.”
Scope of Application: Relation to Other Provisions
The oath emergency can only be applied in connection with the so-called oath-related offenses, namely in relation to:
- § 154 StGB – Perjury
- § 155 StGB – False Declaration in Lieu of Oath
- § 156 StGB – False Affirmation in Lieu of Oath Outside of Court
The oath emergency thus constitutes a justification or excuse specifically applicable to these offenses.
Requirements for the Oath Emergency
In order to successfully invoke the oath emergency, certain requirements must be met cumulatively. The following criteria are relevant:
1. Intentional Submission of False Oath
First, a person must knowingly make a false statement under oath, a declaration in lieu of oath, or a statutory affirmation.
2. Motivation to Rescue
The false oath must be given with the aim of rescuing oneself or a close relative. According to § 11 paragraph 1 no. 1 StGB, relatives especially include spouses, life partners, blood relatives, and in-laws.
3. Existence of a Significant and Immediate Danger
There must be an acute, significant, and immediate danger to life, limb, liberty, or important property interests. The oath emergency is only applicable in cases of significant danger; it does not apply for less severe disadvantages.
4. Unavoidability of the Danger
The danger must not be avoidable by other means. This means that telling the truth under oath would have immediate and grave consequences for the person concerned or their relative. A less severe, yet equally effective means to avert the danger must not be available.
Legal Consequences of the Oath Emergency
If an individual fulfills all requirements of § 157 StGB, criminal liability for the false oath is eliminated. The individual will not be punished for the intentional false oath. Depending on interpretation, it is considered a justification or an excuse, though in practice, the focus is typically on the elimination of criminal liability.
Relationship with the General State of Emergency
In contrast to the oath emergency under § 157 StGB, there is the general justification for state of emergency (§ 34 StGB). While § 34 StGB applies to all criminal acts in principle, § 157 StGB is exclusively applicable to oath-related offenses. Furthermore, § 157 StGB is specifically tailored for the unique conflict situation involving sworn statements.
Distinction from Other States of Emergency
Justifying State of Emergency (§ 34 StGB)
The general justifying state of emergency pursuant to § 34 StGB may also be considered alongside § 157 StGB if overriding interests are to be protected. However, regarding false testimony under oath, established case law gives precedence to § 157 StGB over § 34 StGB.
Excusing State of Emergency (§ 35 StGB)
The excusing state of emergency, on the other hand, is limited to cases where the perpetrator sees no other way to avert an imminent, otherwise unavoidable danger to themselves or close persons and thereby harms another.
Examples of Application and Categories of Cases
In judicial practice, the oath emergency is rarely relevant. However, there are typical scenarios where it may become significant, such as when a person is under substantial pressure to protect a relative and, to this end, makes a false statutory affirmation because otherwise massive disadvantages (for example, life-threatening consequences, severe persecution) would ensue.
Criticism and Practical Significance
It is a subject of critical debate that, despite the high requirements, the scope of the oath emergency may, in exceptional cases, create a ‘right to lie.’ However, there is broad social and legal consensus that, in individual cases, the protection of fundamental human rights and family ties can take precedence over the duty to tell the truth under oath. In practice, the oath emergency is nevertheless recognized only in the rarest cases, as the threshold for its application is extraordinarily high.
Literature and Further Information
- Fischer, Thomas: Strafgesetzbuch und Nebengesetze, Kommentar, § 157 StGB
- Streng, Felix: Die Behandlung der Falschaussage aus Notstand, in: NJW 2015, S. 2777 ff.
- Tröndle/Fischer: Strafgesetzbuch und Nebengesetze, Kommentar, § 157 StGB
Summary
The oath emergency is an exception explicitly incorporated into law, which—under narrowly defined conditions—leads to the non-prosecution of a false oath if significant, imminent danger can only be averted through a false statement. This provision serves to protect vital individual interests as opposed to the state’s duty of objectivity, and it applies specifically to oath-related offenses. Due to its restrictive requirements, the oath emergency plays a rare, but in individual cases important, role in practice.
Frequently Asked Questions
What are the legal consequences of an oath emergency for criminal liability?
If a person finds themselves in an oath emergency situation, this can under certain circumstances lead to the exclusion or mitigation of criminal liability under criminal law. Especially in the context of false oath (§ 154 StGB) or false unsworn statements (§ 153 StGB), a witness who gives false testimony to avoid incriminating themselves or a close relative may invoke necessity. However, courts recognize the oath emergency only in very narrow exceptional cases, as the legislator has a strong interest in the duty of truth and the proper functioning of criminal justice. § 34 StGB (justifying necessity) regulates the general emergency situation, according to which an unlawful act remains unpunished if it is necessary to avert an imminent danger and the interest protected substantially outweighs the one affected. The oath emergency is generally subsumed under the interests to be weighed, requiring an individual case assessment in each instance.
Under what conditions is an oath emergency recognized in criminal proceedings?
Several stringent conditions must be met for the recognition of an oath emergency. The danger must be imminent and not otherwise avertable, and there must be a predominant third-party or personal interest to be protected. Thus, the witness must find themselves in a conflict of conscience in which taking a truthful oath would expose themselves or a relative to significant danger to body, life, liberty, or other important interests. A merely abstract risk is not sufficient. Additionally, other statutory options, such as the right to refuse testimony under §§ 52, 53 StPO, must be considered and exhausted first. Only when such rights do not apply, or are insufficient in the specific situation, may an actual oath emergency be considered.
What is the significance of the right to refuse testimony in connection with the oath emergency?
The right to refuse testimony is of outstanding importance in criminal proceedings because it allows witnesses—particularly relatives of the accused or those in certain professions—to refuse to testify. In connection with the oath emergency, this right acts as a preventive measure to avoid situations of oath emergency wherever possible. Under § 52 StPO, especially relatives (spouses, fiancés, direct line relatives or siblings) are permitted to refuse testimony to avoid incriminating themselves or their relative. Thus, an oath emergency usually only arises if the right to refuse testimony does not exist or cannot be exercised for specific reasons, for example, because the person in question is not a relative or does not invoke this right.
Can the oath emergency also play a role in civil proceedings?
In civil proceedings, the oath emergency is less relevant than in criminal proceedings, but not entirely excluded. According to § 384 ZPO, the right to refuse testimony exists under certain circumstances, for example, for spouses, fiancés, or people with professional confidentiality obligations. An oath emergency might be considered if a party—despite having exhausted all procedural protections—would incur significant danger to themselves or others through taking an oath, for instance due to threatening criminal prosecution. In practice, however, the oath emergency is recognized in civil proceedings extremely rarely, as civil courts set high thresholds for a state of necessity and the numerous rights to refuse testimony are usually sufficient.
How do courts assess the oath emergency in practice?
Case law only recognizes the oath emergency in very rare exceptional cases and applies strict standards to the justification of such a state of necessity. Courts generally point out that resolving the issue should be done through existing rights to refuse testimony or take oath before a state of necessity is recognized. In particular, it is required that the person concerned credibly demonstrates the specific situation faced, including the direct risk to themselves or close relatives or the serious disadvantage they would face by taking a truthful oath. Mere fear of inconvenience, social ostracism, or vague disadvantages is not sufficient. The assessment is always based on the individual case, with the proper functioning of the justice system weighing heavily as a countervailing interest.
Does the oath emergency have an impact on disciplinary or civil servant proceedings?
The oath emergency can play a role in disciplinary or civil service law as well, particularly where officials or public servants are obliged to tell the truth under oath in the performance of their duties. If an oath emergency is present, the official may—analogous to criminal law—be freed from disciplinary consequences if the danger to their own life, physical integrity, or liberty or that of a relative outweighs the duty to tell the truth. However, in disciplinary law too, the legal options for refusing to testify or swear an oath, as well as official protective regulations, must be clarified and used first before an oath emergency can be accepted as a justification. Recognition here too is only in exceptional cases and under strict conditions.
