Refusal to Take an Oath

Refusal to Take an Oath: Definition and Legal Classification

The refusal to take an oath is a term from German law that describes the conscious and declared omission of taking an oath by a person who has been requested to do so. The right to refuse to take an oath is especially significant in criminal procedure, civil procedure, and administrative proceedings. It regulates under which conditions a person is entitled or obliged not to take an oath, and describes the legal consequences of an unjustified refusal.

The Importance of the Oath in German Law

Function of the Oath

In German law, the oath is a solemn affirmation of the truth or accuracy of a statement or declaration. By swearing an oath, the credibility and binding character of a statement are especially emphasized. The oath plays a central role in court, particularly in witness or party testimony.

Legal Foundations

The regulations governing the taking of oaths and the refusal to take an oath are found in the German Civil Code (BGB), the Code of Civil Procedure (ZPO), the Code of Criminal Procedure (StPO), the Courts Constitution Act (GVG), as well as various specialized laws and administrative procedure laws.

Refusal to Take an Oath in Civil Procedure

Statutory Provisions

In civil proceedings, § 393 ZPO regulates the refusal to take an oath. Witnesses, parties, or third parties who are called to take an oath may refuse to do so for certain reasons set out by law.

Permissible Reasons for Refusing to Take an Oath

1. Relationship by kinship: Close relatives of the parties to the proceedings may, pursuant to § 383 ZPO, refuse to testify and therefore also refuse to take an oath.
2. Risk of Self-Incrimination: Witnesses may refuse to testify, and consequently also to take an oath, in accordance with § 384 ZPO if giving evidence would expose them to the risk of criminal prosecution.
3. Persons Bound by Professional Confidentiality: Certain persons such as clergy, doctors, or lawyers are entitled to refuse to take an oath if they are bound to confidentiality (§ 385 ZPO).

Consequences of Unjustified Refusal to Take an Oath

The unjustified refusal to take an oath is considered a regulatory offence or criminal act and can be sanctioned by a fine or imprisonment under § 409 ZPO. However, coercive enforcement of the oath is excluded.

Refusal to Take an Oath in Criminal Proceedings

Legal Framework

In criminal proceedings, §§ 52 ff. StPO regulate the requirements and consequences of a justified or unjustified refusal to take an oath. Refusal to take an oath must be distinguished from the right to refuse to testify, which concerns the giving of testimony as such.

Entitled Persons

The following persons may refuse to take an oath under §§ 52, 53, 55 StPO:

• Relatives of the accused (e.g., spouses, parents, children)
• Persons bound by professional confidentiality such as doctors, clergy, journalists
• Witnesses who would endanger themselves or close relatives by testifying

Unjustified Refusal to Take an Oath: Criminal Liability

Unjustified refusal to take an oath constitutes a procedural breach under § 70 StPO. In serious cases, criminal prosecution is also possible, especially if a witness refuses to take an oath without good cause. The statutory sanctions range from fines to coercive detention.

Refusal to Take an Oath in Administrative Proceedings

General Provisions

In administrative proceedings, the taking of an oath may be required, for example in the context of statutory declarations in lieu of an oath. The Administrative Procedures Act (§ 28 VwVfG) allows for the possibility to demand an oath for certain administrative acts.

Right to Refuse to Take an Oath

There is also a right to refuse to take an oath in administrative proceedings under the conditions regulated by procedural law. For example, close family members and persons bound by professional confidentiality are entitled to refuse to take an oath to protect private secrets.

Criminal Law Aspects of Unjustified Refusal to Take an Oath

Criminal Liability under the Penal Code

Unjustified refusal to take an oath may become relevant under criminal law according to § 70 StPO, in conjunction with perjury and false testimony offences (§§ 153 ff. StGB). Anyone who unjustifiably refuses to take an oath or refuses to tell the truth in court can be held liable for making a false statement or perjury.

Sentencing and Legal Consequences

The penalties for unjustified refusal to take an oath may include imprisonment or monetary fines. The exact consequence depends on the circumstances of the individual case, particularly the degree of fault and the significance of the oath for the proceedings.

Difference: Right to Refuse Testimony vs. Right to Refuse Oath

The right to refuse to testify allows witnesses not to give any testimony at all, whereas the right to refuse to take an oath is aimed at omitting only the oath, with the testimony still being given. Both rights may be exercised simultaneously or independently.

Overview of Key Provisions

Summary: Importance of Refusal to Take an Oath in German Law

The refusal to take an oath is a significant procedural guarantee, serving both the protection of individual rights and the establishment of truth in court proceedings. It is clearly regulated by law and subject to specific, conclusively regulated conditions. The boundaries between permissible and impermissible refusal to take an oath are defined by law and are reviewed in each case by the deciding court. Unjustified refusal may have serious legal consequences.

See also:

• Right to Refuse Testimony
• False Testimony
• Perjury
• Witness Protection
• Procedural Law

Further Reading:

• Münchener Commentary on the Code of Civil Procedure
• Löwe-Rosenberg, StPO Commentary
• Palandt, German Civil Code
• Fischer, Penal Code

Weblinks:

• Gesetze im Internet – ZPO
• Gesetze im Internet – StPO
• Gesetze im Internet – StGB

Frequently Asked Questions

Who is entitled to invoke the refusal to take an oath in German criminal proceedings?

Refusal to take an oath in German criminal proceedings can generally be invoked by certain witnesses whose legal entitlements are regulated by the Code of Criminal Procedure (StPO). According to § 61 StPO, in particular the accused, their spouse or life partner, fiancé(e), relatives or in-laws up to the third degree, are entitled to refuse the oath. These witnesses are considered ‘privileged witnesses’ and receive special protection to avoid conflicts of loyalty and risks of self-incrimination. Furthermore, there is a comprehensive right for witnesses to refuse to take an oath who are already protected by valid testimonial privilege rights under §§ 52-53a StPO. It should also be noted that minors who have not yet reached the age of 16 at the time of their interrogation may likewise refuse the oath (§ 60 No. 1 StPO).

Does the refusal to take an oath need to be declared explicitly, and what form must be observed?

The refusal to take an oath must be declared expressly and unequivocally. The court is obliged to inform the witness before administering the oath that a right to refuse exists, provided the requirements are met. If no explicit declaration is made, a refusal cannot automatically be assumed. It does not suffice to remain silent or evasive—the witness must clearly state that they are invoking the right to refuse the oath. No particular form is prescribed; the declaration can be made orally or in writing, but usually occurs orally during the examination before the court or investigating authority. The declaration is recorded in the minutes.

What are the consequences of an unjustified refusal to take an oath?

If an oath is unjustifiably refused, meaning that none of the legally regulated grounds are present and the witness is nonetheless called upon to take the oath, this may result in a disciplinary measure. The witness can be compelled to testify and to take the oath, pursuant to § 70 StPO, by imposition of a fine and, in the event of repeated refusal, coercive detention. Furthermore, unjustified refusal may be treated as refusing to testify, resulting in further legal consequences. However, if a justified reason for refusal exists, no disadvantages may arise therefrom, and compulsion to take the oath is impermissible.

Is there a difference between refusal to take an oath in civil and criminal proceedings?

Yes, separate rules apply for civil proceedings. While the Code of Criminal Procedure regulates refusal to take an oath in connection with rights to refuse to testify or provide information in considerable detail, the Code of Civil Procedure (ZPO), pursuant to § 478 ZPO, also allows for refusal to take an oath, but mainly grants this right to witnesses who are also entitled to refuse to testify. In civil matters, there are also special provisions, such as for party witnesses, expert witnesses, or document witnesses. The distinction and application of the rules depend greatly on the specific function of the witness and the stage of proceedings.

What duties to cooperate remain despite refusal to take an oath?

Refusing to take an oath does not release the witness from all obligations to cooperate in the proceedings. The witness remains generally obliged to testify, unless they simultaneously invoke a right to refuse testimony. Refusal to take an oath relates solely to the obligation to declare what has been said under oath. The witness must appear, testify, and provide truthful statements, unless a right to refuse testimony exists or is exercised. The duty to tell the truth applies independent of the oath; only the additional affirmation by oath is omitted. In this context, it should be noted that false statements may have criminal consequences even without an oath.

How does refusal to take an oath affect the evaluation of evidence and the verdict?

Refusal to take an oath can influence the court’s evaluation of evidence, as a statement made without an oath may be accorded less weight than a sworn statement. The court must evaluate, within its free assessment of evidence (§ 261 StPO), how reliable and credible the statement is even without an oath. In some cases, the absence of an oath may be mentioned in the judgment and lead the court to scrutinize the statement more critically, particularly if other incriminating or exculpatory findings are absent. However, the right to refuse an oath must not be interpreted negatively, meaning that the mere exercise of this right may not result in any disadvantage to the witness.

Are there exceptions to the right to refuse to take an oath in special cases?

Exceptions to the right to refuse to take an oath exist only in precisely regulated statutory cases. In proceedings against certain individuals (e.g., against a close relative), the right to refuse the oath is especially protected. However, it is restricted when the witness is interrogated in connection with their own offence (co-accused), as here, the principle of freedom from self-incrimination (nemo tenetur) and the position of guarantor play a central role. Also, certain professional groups with confidentiality obligations (e.g., clergy, doctors, lawyers) who have a right to refuse to testify are included in the refusal to take an oath; however, in such cases, an individual assessment is necessary to determine whether the requirements are met. Thus, the right to refuse to take an oath is always examined restrictively and strictly according to the law.