German Amnesty Case

CourtCourt of Appeal of Hamburg (Germany)
German Federal Republic, Court of Appeal of Hamburg.
German Amnesty Case.

Belligerent Occupation — Judicial Functions of Occupant — Tribunals of Occupant — Whether Foreign or Domestic Tribunals — Previous Conviction by Tribunal of Occupant — Law of Amnesty in Occupied Country — Law Precluding Amnesty for Persons Previously Convicted — Whether Previous Conviction by Tribunal of Occupant Precludes Amnesty — The Law of Germany.

The Facts.—The Amnesty Law of the Federal Republic of Germany of July 17, 1954, provided, as far as here material, that persons previously sentenced to terms of imprisonment exceeding one month were not entitled to the remission of current sentences in accordance with the terms of the Law, The appellant, against whom a previous conviction involving a sentence of 12 months' imprisonment had been recorded by an Occupation tribunal, contended that this sentence should be ignored as being the sentence of a foreign Court, and that he should be deemed to be a person without previous convictions. The prosecution contended that the sentence inflicted by the Occupation tribunal should be taken into account as if it were a sentence imposed by a German court.

Held: that the Occupation tribunal was a foreign court whose sentence must be ignored. The appellant must be treated like a person without previous convictions and therefore was entitled to the benefits of the Amnesty Law.

The Court said: “The exception contained in s. 2(3), whereby remission of sentence may not be granted if there have been previous convictions involving a sentence of imprisonment exceeding one month, does not apply in this case. It is quite true that the accused was sentenced to 12 months' imprisonment on July 26, 1948, but this sentence was passed by the Control Commission Court of Lübeck. It was passed because the accused was found guilty of the unauthorized possession of Allied property. Such a conviction must be disregarded; only previous convictions recorded by a German court can be taken into account so far as concerns the application of s. 2(3) of the Amnesty Law. It is quite true that this interpretation does not follow directly from the wording of the section, which does not even contain the limiting words ‘in Germany’ (im Inland), which are to be found in some of the provisions of the Penal Code. We cannot, however, attach decisive importance to this fact, because the parliamentary debates do not lend any support to the assumption that the significance of...

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