Landwehr v Director of Prosecutions

CourtObsolete Court (Germany)
Date09 l 1950
Docket NumberCase No. 132
Germany (British Zone), Control Commission Court of Appeal.

(Inglis C.J.; Corrie and Rogers JJ.)

Case No. 132
Landwehr
and
Director of Prosecutions.

Occupation — Rights and Duties of Occupant — Respect for Local Law — Jurisdiction of Occupation Tribunals — Trial of Member of Legislative Assembly of Occupied Country — Claim to Immunity as Member of such Assembly.

The Facts.—The appellant, who was a member of the legislative assembly of the “Land” of Lower Saxony, was also the editor of a newspaper circulating in that “Land”. Certain articles having been published in that newspaper concerning legal proceedings pending before a Control Commission Court, the appellant was convicted of contempt of court and sentenced to a term of imprisonment. He now appealed against conviction and sentence, and in so far as concerned his appeal against conviction contended that as a member of the legislative assembly of Lower Saxony he was not subject to the jurisdiction of the Control Commission Courts, it being provided in Article 37 of the Weimar Constitution—which had been made applicable to the Parliament of Lower Saxony—that “without the consent of the House of which he is a member, no member of … a ‘Landtag’ shall during the session have criminal proceedings commenced against him. …”

Held: that the occupation authorities were not bound by the law of Lower Saxony unless they expressly subjected themselves to it, and as they had not done so, their courts were entitled to try the appellant without the consent of the “Landtag”; and that, accordingly, the appeal against conviction must be dismissed. The Court said (per Inglis C.J.):

“The Appellant, being a member of the ‘Niedersächsische Landtag’, claims that by virtue of a law passed by the ‘Niedersächsische Landesgewalt’ dated 11th February 1947, he was immune from arrest and not subject to the jurisdiction of the Control Commission High Court which punished him for contempt. The law upon which he relies, and the several laws extending the period of its operation, have been duly approved by the Land Commissioner of Niedersachsen and make the following Articles of the Weimar Constitution applicable to the ‘Niedersächsische Landtag’:

‘36. No proceedings, judicial or disciplinary, may at any time be instituted against any member of … a Landtag in respect of anything said or any vote cast by him in his capacity as a member, and he shall not be answerable therefor except to the House.

‘37. Without the consent of the House of...

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