Diplomatic Immunities (German Foreign Office) Case

CourtRegional Court (Germany)
Docket NumberCase No. 244
Date20 m 1926
Oberlandesgericht of Darmstadt.
Case No. 244
Diplomatic Immunities (German Foreign Office) Case.

Immunity from Jurisdiction — Binding Force of Declaration of Minister for Foreign Affairs — Position of Head of Legation and Member of Legation Contrasted — Termination of Exterritoriality.

The Facts.—A prosecution arising out of alleged acts of tax evasion was instituted against a member of a foreign legation in Germany. It appeared that, in consequence, inter alia, of certain irregularities said to have been committed by the defendant in connection with his having divested himself of his previous German nationality, the German Foreign Office refused to recognise him as a member of a legation entitled to diplomatic privileges, and that it informed the court accordingly. The diplomat in question objected to the prosecution on the ground of his exterritoriality.1

Held: That the plea of exterritoriality must be dismissed.

According to German constitutional and administrative law, German courts are only in certain specific cases bound by the opinions of Government authorities. The declaration of the Foreign Office on a question of exterritoriality does not formally bind the courts. In fact, the Foreign Office itself had expressed the opinion that a declaration made by it is not binding upon a German court.

The law to be applied is German law in the first instance. According to Section 18 of the Law relating to the Organisation of the Courts, the head and the members of diplomatic missions accredited to Germany are not subject to German jurisdiction; according to Section 19 of that Law, the same privileges extend to members of the families and to the administrative personnel of those persons. However, as the Law contains no provisions as to when and under what circumstances a person is to be considered a member of a foreign legation, it must be supplemented by such legal rules as may legitimately be applied. These rules will be found in the generally recognised principles of International Law which, according to Article 4 of the German Constitution, form part of the German Federal Law.

Exterritoriality being in the nature of an exception to the

principle of territorial sovereignty must be interpreted restrictively. It is a necessary consequence of the principle of independence thus conceived that no State is bound to receive a diplomatic mission from another State, or, when it receives it, that it is bound to recognise any individual person as a member of such a...

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