Joint Customs Post Case

CourtCourt of Appeal of Düsseldorf (Germany)
Federal Republic of Germany, Superior Provincial Court (Oberlandesgericht) of Dsseldorf
Joint Customs Post Case

Jurisdiction Territorial Concurrent jurisdiction pursuant to treaty Criminal offences Convention between the Federal Republic of Germany and the Netherlands concerning the Merger of Customs Clearance Posts, 1958 Arrest of Dutch national within area of joint customs clearance post Whether arrested on Dutch or German territory Absence of authority of German customs officials to arrest Dutch national on Dutch territory Arrest in violation of customary international law and treaty provisions Whether a bar to proceedings before municipal courts Basic Law (GG) of the Federal Republic of Germany, Article 25

Relationship of international law and municipal law Position of individuals in international law Unlawful arrest in foreign country in violation of customary international law Whether conferring right of action upon private individual Right of injured State to obtain repatriation Whether individual can enforce right of repatriation through proceedings in municipal courts of arresting State

Relationship of international law and municipal law Treaties Effect in municipal law European Convention on Extradition, 1957 European Convention on Human Rights, 1950, Article 5(1)(c) Whether conferring right of action upon private individual Whether violation of international convention constitutes bar to criminal proceedings under municipal law

Treaties Effect in municipal law Whether conferring rights upon individuals Unlawful arrest Whether violation of treaty provisions constitutes bar to criminal proceedings in municipal courts European Convention on Extradition, 1957 European Convention on Human Rights, 1950, Article 5(1)(c)

Human rights Liberty, right to European Convention on Human Rights, 1950, Article 5(1)(c) Unlawful arrest Whether automatically violates personal right of accused under Convention Whether constitutes a bar to municipal criminal proceedings The law of the Federal Republic of Germany

Summary: The facts:The accused, a Dutch national, was arrested by customs officials of the Federal Republic of Germany on the Dutch-German border. The arrest took place within the area of a joint customs clearance post established pursuant to an Agreement concluded between the Federal Republic of Germany and the Netherlands in 1958, which provided for the merger of customs competences. The accused was charged and convicted of tax fraud by a magistrates' court in the Federal Republic of Germany. He appealed to the Provincial Court (LG), arguing that the proceedings should be terminated because, as a Dutch national, he had been illegally arrested by German customs officials whilst on the territory of the Netherlands. The appeal was dismissed and the accused lodged a further appeal on a point of law to the Superior Provincial Court (OLG) of Dsseldorf.

Held:The appeal was dismissed.

(1) The German customs officials had no authority under the Agreement between the Federal Republic of Germany and the Netherlands concerning the Merger of Customs Clearance Posts to effect the arrest of a Dutch national on Dutch territory, within the area of a joint customs clearance post (pp. 5289).

(2) The mere fact of an arrest in violation of public international law, which according to Article 25(1) of the Basic Law of the Federal Republic (GG) constituted directly applicable municipal law, did not constitute a bar to criminal proceedings in the Federal Republic. There was a duty under international law to repatriate the foreigner to the injured State in such circumstances, but only if that State so requested (pp. 52930).

(3) The accused himself had no personal right to complain of a violation of international law. A personal action based on a violation of the European Convention on Extradition, 1957, would...

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